[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          5


          Part 1200 to End

                         Revised as of January 1, 2010


          Administrative Personnel
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2010
          With Ancillaries
                    Published by:
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................    viii

  Title 5:
          Chapter II--Merit Systems Protection Board                 5
          Chapter III--Office of Management and Budget             105
          Chapter V--The International Organizations Employees 
          Loyalty Board                                            181
          Chapter VI--Federal Retirement Thrift Investment 
          Board                                                    187
          Chapter VIII--Office of Special Counsel                  301
          Chapter IX--Appalachian Regional Commission              323
          Chapter XI--Armed Forces Retirement Home                 327
          Chapter XIV--Federal Labor Relations Authority, 
          General Counsel of the Federal Labor Relations 
          Authority and Federal Service Impasses Panel             335
          Chapter XV--Office of Administration, Executive 
          Office of the President                                  439
          Chapter XVI--Office of Government Ethics                 459
          Chapter XXI--Department of the Treasury                  691
          Chapter XXII--Federal Deposit Insurance Corporation      703
          Chapter XXIII--Department of Energy                      713
          Chapter XXIV--Federal Energy Regulatory Commission       717

[[Page iv]]

          Chapter XXV--Department of the Interior                  721
          Chapter XXVI--Department of Defense                      729
          Chapter XXVIII--Department of Justice                    735
          Chapter XXIX--Federal Communications Commission          741
          Chapter XXX--Farm Credit System Insurance 
          Corporation                                              745
          Chapter XXXI--Farm Credit Administration                 751
          Chapter XXXIII--Overseas Private Investment 
          Corporation                                              757
          Chapter XXXV--Office of Personnel Management             761
          Chapter XL--Interstate Commerce Commission               765
          Chapter XLI--Commodity Futures Trading Commission        769
          Chapter XLII--Department of Labor                        773
          Chapter XLIII--National Science Foundation               779
          Chapter XLV--Department of Health and Human Services     785
          Chapter XLVI--Postal Rate Commission                     807
          Chapter XLVII--Federal Trade Commission                  811
          Chapter XLVIII--Nuclear Regulatory Commission            815
          Chapter L--Department of Transportation                  821
          Chapter LII--Export-Import Bank of the United States     825
          Chapter LIII--Department of Education                    831
          Chapter LIV--Environmental Protection Agency             835
          Chapter LV--National Endowment for the Arts              841
          Chapter LVI--National Endowment for the Humanities       845
          Chapter LVII--General Services Administration            849

[[Page v]]

          Chapter LVIII--Board of Governors of the Federal 
          Reserve System                                           855
          Chapter LIX--National Aeronautics and Space 
          Administration                                           861
          Chapter LX--United States Postal Service                 867
          Chapter LXI--National Labor Relations Board              871
          Chapter LXII--Equal Employment Opportunity 
          Commission                                               875
          Chapter LXIII--Inter-American Foundation                 879
          Chapter LXIV--Merit Systems Protection Board             883
          Chapter LXV--Department of Housing and Urban 
          Development                                              887
          Chapter LXVI--National Archives and Records 
          Administration                                           895
          Chapter LXVII--Institute of Museum and Library 
          Services                                                 899
          Chapter LXVIII--Commission on Civil Rights               903
          Chapter LXIX--Tennessee Valley Authority                 907
          Chapter LXXI--Consumer Product Safety Commission         911
          Chapter LXXIII--Department of Agriculture                915
          Chapter LXXIV--Federal Mine Safety and Health Review 
          Commission                                               921
          Chapter LXXVI--Federal Retirement Thrift Investment 
          Board                                                    925
          Chapter LXXVII--Office of Management and Budget          929
          Chapter XCVII--Department of Homeland Security Human 
          Resources Management System (Department of Homeland 
          Security--Office of Personnel Management)                933
          Chapter XCIX--Department of Defense Human Resources 
          Management and Labor Relations Systems (Department 
          of Defense--Office of Personnel Management)              987
  Finding Aids:
      Table of CFR Titles and Chapters........................    1055

[[Page vi]]

      Alphabetical List of Agencies Appearing in the CFR......    1075
      List of CFR Sections Affected...........................    1085

[[Page vii]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 5 CFR 1200.1 refers 
                       to title 5, part 1200, 
                       section 1.

                     ----------------------------

[[Page viii]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2010), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
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Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page ix]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
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if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
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Records Administration, Washington DC 20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.




[[Page x]]



REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
fedreg.info@nara.gov.

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CFR Sections Affected), The United States Government Manual, the Federal 
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    The Office of the Federal Register also offers a free service on the 
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site for public law numbers, Federal Register finding aids, and related 
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register. The NARA site also contains links to GPO Access.

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2010.







[[Page xi]]



                               THIS TITLE

    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, 2010.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                    TITLE 5--ADMINISTRATIVE PERSONNEL




                  (This book contains part 1200 to End)

  --------------------------------------------------------------------

  Editorial Note: 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.
                                                                    Part

chapter ii--Merit Systems Protection Board..................        1200

chapter iii--Office of Management and Budget................        1300

chapter v--The International Organizations Employees Loyalty 
  Board.....................................................        1501

chapter vi--Federal Retirement Thrift Investment Board......        1600

chapter viii--Office of Special Counsel.....................        1800

chapter ix--Appalachian Regional Commission.................        1900

chapter xi--Armed Forces Retirement Home....................        2100

chapter xiv--Federal Labor Relations Authority, General 
  Counsel of the Federal Labor Relations Authority and 
  Federal Service Impasses Panel............................        2411

 Appendix A to 5 CFR Chapter XIV--Current Addresses and Geographic 
  Jurisdictions.

 Appendix B to 5 CFR Chapter XIV--Memorandum Describing the Authority 
  and Assigned Responsibilities of the General Counsel of the Federal 
  Labor Relations Authority.

chapter xv--Office of Administration, Executive Office of 
  the President.............................................        2500

chapter xvi--Office of Government Ethics....................        2600

chapter xxi--Department of the Treasury.....................        3101

[[Page 2]]


chapter xxii--Federal Deposit Insurance Corporation.........        3201

chapter xxiii--Department of Energy.........................        3301

chapter xxiv--Federal Energy Regulatory Commission..........        3401

chapter xxv--Department of the Interior.....................        3501

chapter xxvi--Department of Defense.........................        3601

chapter xxviii--Department of Justice.......................        3801

chapter xxix--Federal Communications Commission.............        3901

chapter xxx--Farm Credit System Insurance Corporation.......        4001

chapter xxxi--Farm Credit Administration....................        4101

chapter xxxiii--Overseas Private Investment Corporation.....        4301

chapter xxxv--Office of Personnel Management................        4501

chapter xl--Interstate Commerce Commission..................        5001

chapter xli--Commodity Futures Trading Commission...........        5101

chapter xlii--Department of Labor...........................        5201

chapter xliii--National Science Foundation..................        5301

chapter xlv--Department of Health and Human Services........        5501

chapter xlvi--Postal Rate Commission........................        5601

chapter xlvii--Federal Trade Commission.....................        5701

chapter xlviii--Nuclear Regulatory Commission...............        5801

chapter l--Department of Transportation.....................        6001

chapter lii--Export-Import Bank of the United States........        6201

chapter liii--Department of Education.......................        6301

chapter liv--Environmental Protection Agency................        6401

chapter lv--National Endowment for the Arts.................        6501

chapter lvi--National Endowment for the Humanities..........        6601

chapter lvii--General Services Administration...............        6701

chapter lviii--Board of Governors of the Federal Reserve 
  System....................................................        6801

chapter lix--National Aeronautics and Space Administration..        6901

chapter lx--United States Postal Service....................        7001

chapter lxi--National Labor Relations Board.................        7101

chapter lxii--Equal Employment Opportunity Commission.......        7201

chapter lxiii--Inter-American Foundation....................        7301

chapter lxiv--Merit Systems Protection Board................        7401

[[Page 3]]


chapter lxv--Department of Housing and Urban Development....        7501

chapter lxvi--National Archives and Records Administration..        7601

chapter lxvii--Institute of Museum and Library Services.....        7701

chapter lxviii--Commission on Civil Rights..................        7801

chapter lxix--Tennessee Valley Authority....................        7901

chapter lxxi--Consumer Product Safety Commission............        8101

chapter lxxiii--Department of Agriculture...................        8301

chapter lxxiv--Federal Mine Safety and Health Review 
  Commission................................................        8401

chapter lxxvi--Federal Retirement Thrift Investment Board...        8601

chapter lxxvii--Office of Management and Budget.............        8701

chapter xcvii--Department of Homeland Security Human 
  Resources Management System (Department of Homeland 
  Security--Office of Personnel Management).................        9701

chapter xcix--Department of Defense Human Resources 
  Management and Labor Relations Systems (Department of 
  Defense--Office of Personnel Management)..................        9901

[[Page 5]]



               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD




  --------------------------------------------------------------------

                SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part                                                                Page
1200            Board organization..........................           7
1201            Practices and procedures....................           9
1202            Statutory Review Board......................          58
1203            Procedures for review of rules and 
                    regulations of the Office of Personnel 
                    Management..............................          59
1204            Availability of official information........          62
1205            Privacy Act regulations.....................          69
1206            Open meetings...............................          73
1207            Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by the Merit 
                    Systems Protection Board................          75
1208            Practices and procedures for appeals under 
                    the Uniformed Services Employment and 
                    Reemployment Rights Act and the Veterans 
                    Employment Opportunities Act............          82
1209            Practices and procedures for appeals and 
                    stay requests of personnel actions 
                    allegedly based on whistleblowing.......          86
1210-1214

 [Reserved]

1215            Debt management.............................          91
1216            Testimony by MSPB employees relating to 
                    official information and production of 
                    official records in legal proceedings...          98

[[Page 7]]



                SUBCHAPTER A_ORGANIZATION AND PROCEDURES


PART 1200_BOARD ORGANIZATION--Table of Contents

                            Subpart A_General

Sec.
1200.1 Statement of purpose.
1200.2 Board members and duties.
1200.3 How the Board members make decisions.

                     Subpart B_Offices of the Board

1200.10 Staff organization and functions.

    Source: 56 FR 41747, Aug. 23, 1991, unless otherwise noted.



                            Subpart A_General

    Authority: 5 U.S.C. 1201 et seq.



Sec. 1200.1  Statement of purpose.

    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.

[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]



Sec. 1200.2  Board members and duties.

    (a) The Board has three members whom the President appoints and the 
Senate confirms. Members of the Board serve seven-year terms.
    (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.

[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]



Sec. 1200.3  How the Board members make decisions.

    (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.
    (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.
    (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.
    (d) Decisions and orders issued pursuant to paragraphs (b) and (c) 
of this section shall not be precedential.
    (e) This section applies only when at least two Board members are in 
office.

[59 FR 39937, Aug. 5, 1994]



                     Subpart B_Offices of the Board

    Authority: 5 U.S.C. 1204 (h) and (j).



Sec. 1200.10  Staff organization and functions.

    (a) The Board's headquarters staff is organized into the following 
offices and divisions:
    (1) Office of Regional Operations.
    (2) Office of the Administrative Law Judge.
    (3) Office of Appeals Counsel.
    (4) Office of the Clerk of the Board.
    (5) Office of the General Counsel.
    (6) Office of Policy and Evaluation.
    (7) Office of Equal Employment Opportunity.

[[Page 8]]

    (8) Office of Financial and Administrative Management.
    (9) Office of Information Resources Management.
    (b) The principal functions of the Board's headquarters offices are 
as follows:
    (1) Office of Regional Operations. The Director, Office of Regional 
Operations, manages the adjudicatory and administrative functions of the 
MSPB regional and field offices.
    (2) Office of the Administrative Law Judge. 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.
    (3) Office of Appeals Counsel. 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.
    (4) Office of the Clerk of the Board. 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:
    (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;
    (ii) Manages the Board's records, reports, legal research, and 
correspondence control programs; and
    (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.
    (5) Office of the General Counsel. 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.
    (6) Office of Policy and Evaluation. 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.
    (7) Office of Equal Employment Opportunity. The Director, Office of 
Equal Employment Opportunity, manages the Board's equal employment 
programs.
    (8) Office of Financial and Administrative Management. The Office of 
Financial and Administrative Management administers the budget, 
accounting, procurement, property management, physical security, and 
general services functions of the Board. It also 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 Treasury's Bureau of Public 
Debt for accounting services and with the U.S. Department of 
Agriculture's National Finance Center for payroll and personnel action 
processing services and with the U.S. Department of Agriculture's APHIS 
Business Services for most human resources management services.
    (9) Office of Information Resources Management. The Office of 
Information Resources Management develops, implements, and maintains the 
Board's automated information systems.
    (c) Regional and Field Offices. The Board has regional and field 
offices located throughout the country (See Appendix II to 5 CFR part 
1201 for a list of

[[Page 9]]

the regional and field offices). Judges in the regional and field 
offices hear and decide initial appeals and other assigned cases as 
provided for in the Board's regulations.

[62 FR 49589, Sept. 23, 1997, as amended at 64 FR 15916, Apr. 2, 1999; 
70 FR 30608, May 27, 2005]



PART 1201_PRACTICES AND PROCEDURES--Table of Contents

                 Subpart A_Jurisdiction and Definitions

Sec.
1201.1 General.
1201.2 Original jurisdiction.
1201.3 Appellate jurisdiction.
1201.4 General definitions.

                Subpart B_Procedures for Appellate Cases

                                 General

1201.11 Scope and policy.
1201.12 Revocation, amendment, or waiver of rules.
1201.13 Appeals by Board employees.
1201.14 Electronic filing procedures.

                   Appeal of Agency Action; Pleadings

1201.21 Notice of appeal rights.
1201.22 Filing an appeal and responses to appeals.
1201.23 Computation of time.
1201.24 Content of an appeal; right to hearing.
1201.25 Content of agency response.
1201.26 Number of pleadings, service, and response.
1201.27 Class appeals.
1201.28 Case suspension procedures.

                 Parties, Representatives, and Witnesses

1201.31 Representatives.
1201.32 Witnesses; right to representation.
1201.33 Federal witnesses.
1201.34 Intervenors and amicus curiae.
1201.35 Substituting parties.
1201.36 Consolidating and joining appeals.
1201.37 Witness fees.

                                 Judges

1201.41 Judges.
1201.42 Disqualifying a judge.
1201.43 Sanctions.

                                Hearings

1201.51 Scheduling the hearing.
1201.52 Public hearings.
1201.53 Record of proceedings.
1201.55 Motions.
1201.56 Burden and degree of proof; affirmative defenses.
1201.57 Order of hearing.
1201.58 Closing the record.

                                Evidence

1201.61 Exclusion of evidence and testimony.
1201.62 Producing prior statements.
1201.63 Stipulations.
1201.64 Official notice.

                                Discovery

1201.71 Purpose of discovery.
1201.72 Explanation and scope of discovery.
1201.73 Initial disclosures and discovery procedures.
1201.74 Orders for discovery.
1201.75 Taking depositions.

                                Subpoenas

1201.81 Requests for subpoenas.
1201.82 Motions to quash subpoenas.
1201.83 Serving subpoenas.
1201.84 Proof of service.
1201.85 Enforcing subpoenas.

                          Interlocutory Appeals

1201.91 Explanation.
1201.92 Criteria for certifying interlocutory appeals.
1201.93 Procedures.

                         Ex Parte Communications

1201.101 Explanation and definitions.
1201.102 Prohibition on ex parte communications.
1201.103 Placing communications in the record; sanctions.

                             Final Decisions

1201.111 Initial decision by judge.
1201.112 Jurisdiction of judge.
1201.113 Finality of decision.

           Subpart C_Petitions for Review of Initial Decisions

1201.114 Filing petition and cross petition for review.
1201.115 Contents of petition for review.
1201.116 Appellant requests for enforcement of interim relief.
1201.117 Procedures for review or reopening.
1201.118 Board reopening of case and reconsideration of initial 
          decision.
1201.119 OPM petition for reconsideration.
1201.120 Judicial review.

          Subpart D_Procedures for Original Jurisdiction Cases

                                 General

1201.121 Scope of jurisdiction; application of subparts B, F, and H.

[[Page 10]]

                  Special Counsel Disciplinary Actions

1201.122 Filing complaint; serving documents on parties.
1201.123 Contents of complaint.
1201.124 Rights; answer to complaint.
1201.125 Administrative law judge.
1201.126 Final decisions.
1201.127 Judicial review.

                   Special Counsel Corrective Actions

1201.128 Filing complaint; serving documents on parties.
1201.129 Contents of complaint.
1201.130 Rights; answer to complaint.
1201.131 Judge.
1201.132 Final decisions.
1201.133 Judicial review.

                   Special Counsel Requests for Stays

1201.134 Deciding official; filing stay request; serving documents on 
          parties.
1201.135 Contents of stay request.
1201.136 Action on stay request.

                Actions Against Administrative Law Judges

1201.137 Covered actions; filing complaint; serving documents on 
          parties.
1201.138 Contents of complaint.
1201.139 Rights; answer to complaint.
1201.140 Judge; requirement for finding of good cause.
1201.141 Judicial review.
1201.142 Actions filed by administrative law judges.

                Removal From the Senior Executive Service

1201.143 Right to hearing; filing complaint; serving documents on 
          parties.
1201.144 Hearing procedures; referring the record.
1201.145 No appeal.

                     Requests for Protective Orders

1201.146 Requests for protective orders by the Special Counsel.
1201.147 Requests for protective orders by persons other than the 
          Special Counsel.
1201.148 Enforcement of protective orders.

 Subpart E_Procedures for Cases Involving Allegations of Discrimination

1201.151 Scope and policy.
1201.152 Compliance with subpart B procedures.
1201.153 Contents of appeal.
1201.154 Time for filing appeal; closing record in cases involving 
          grievance decisions.
1201.155 Remand of allegations of discrimination.
1201.156 Time for processing appeals involving allegations of 
          discrimination.
1201.157 Notice of right to judicial review.

                        Review of Board Decision

1201.161 Action by the Equal Employment Opportunity Commission; judicial 
          review.
1201.162 Board action on the Commission decision; judicial review.

                              Special Panel

1201.171 Referral of case to Special Panel.
1201.172 Organization of Special Panel; designation of members.
1201.173 Practices and procedures of Special Panel.
1201.174 Enforcing the Special Panel decision.
1201.175 Judicial review of cases decided under 5 U.S.C. 7702.

           Subpart F_Enforcement of Final Decisions and Orders

1201.181 Authority and explanation.
1201.182 Petition for enforcement.
1201.183 Procedures for processing petitions for enforcement.

                      Subpart G_Savings Provisions

1201.191 Savings provisions.

Subpart H_Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation 
  Expenses, Where Applicable), Consequential Damages, and Compensatory 
                                 Damages

1201.201 Statement of purpose.
1201.202 Authority for awards.
1201.203 Proceedings for attorney fees.
1201.204 Proceedings for consequential damages and compensatory damages.
1201.205 Judicial review.

Appendix I to Part 1201 [Reserved]
Appendix II to Part 1201--Appropriate Regional or Field Office for 
          Filing Appeals
Appendix III to Part 1201--Approved Hearing Locations by Regional Office
Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C. 1746

    Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless 
otherwise noted.

    Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted.



                 Subpart A_Jurisdiction and Definitions



Sec. 1201.1  General.

    The Board has two types of jurisdiction, original and appellate.

[[Page 11]]



Sec. 1201.2  Original jurisdiction.

    The Board's original jurisdiction includes the following cases:
    (a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 
1215, and 1216;
    (b) Requests, by persons removed from the Senior Executive Service 
for performance deficiencies, for informal hearings; and
    (c) Actions taken against administrative law judges under 5 U.S.C. 
7521.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997]



Sec. 1201.3  Appellate jurisdiction.

    (a) Generally. 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:
    (1) Reduction in grade or removal for unacceptable performance (5 
CFR part 432; 5 U.S.C. 4303(e));
    (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. 
7511-7514);
    (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);
    (4) Reduction-in-force action affecting a career appointee in the 
Senior Executive Service (5 U.S.C. 3595);
    (5) Reconsideration decision sustaining a negative determination of 
competence for a general schedule employee (5 CFR 531.410; 5 U.S.C. 
5335(c));
    (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)
    (7) Disqualification of an employee or applicant because of a 
suitability determination (5 CFR 731.501);
    (8) Termination of employment during probation or the first year of 
a veterans readjustment appointment when:
    (i) The employee alleges discrimination because of partisan 
political reasons or marital status; or
    (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));
    (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));
    (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);
    (11) Furlough of a career appointee in the Senior Executive Service 
(5 CFR 359.805);
    (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);
    (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);
    (14) Failure to reinstate a former employee after service under the 
Foreign Assistance Act of 1961 (5 CFR 352.508);
    (15) Failure to re-employ a former employee after movement between 
executive agencies during an emergency (5 CFR 352.209);
    (16) Failure to re-employ a former employee after detail or transfer 
to an international organization (5 CFR 352.313);
    (17) Failure to re-employ a former employee after service under the 
Indian Self-Determination Act (5 CFR 352.707);
    (18) Failure to re-employ a former employee after service under the 
Taiwan Relations Act (5 CFR 352.807);
    (19) Employment practices administered by the Office of Personnel 
Management to examine and evaluate the

[[Page 12]]

qualifications of applicants for appointment in the competitive service 
(5 CFR 300.104); and
    (20) Reduction-in-force action affecting a career or career 
candidate appointee in the Foreign Service (22 U.S.C. 4011).
    (b)(1) Appeals under the Uniformed Services Employment and 
Reemployment Rights Act and the Veterans Employment Opportunities Act. 
Appeals filed under the Uniformed Services Employment and Reemployment 
Rights Act (Public Law 103-353), as amended, and the Veterans Employment 
Opportunities 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.
    (2) Appeals involving an allegation that the action was based on 
appellant's ``whistleblowing.'' 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.
    (c) Limitations on appellate jurisdiction, collective bargaining 
agreements, and election of procedures:
    (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:
    (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;
    (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:
    (A) The Board's appellate procedures;
    (B) The negotiated grievance procedures; or
    (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.
    (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.
    (2) Choice of procedure. 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.
    (3) Review of discrimination grievances. 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

[[Page 13]]

the Clerk of the Board in accordance with Sec. 1201.154.

[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; 70 FR 30608, May 27, 2005; 72 FR 56884, Oct. 5, 
2007; 74 FR 9343, Mar. 4, 2009]



Sec. 1201.4  General definitions.

    (a) Judge. 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.
    (b) Pleading. Written submission setting out claims, allegations, 
arguments, or evidence. Pleadings include briefs, motions, petitions, 
attachments, and responses.
    (c) Motion. A request that a judge take a particular action.
    (d) Appropriate regional or field office. 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.
    (e) Party. 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.
    (f) Appeal. A request for review of an agency action.
    (g) Petition for review. A request for review of an initial decision 
of a judge.
    (h) Day. Calendar day.
    (i) Service. The process of furnishing a copy of any pleading to 
Board officials, other parties, or both, by mail, by facsimile, by 
commercial or personal delivery, or by electronic filing (e-filing) in 
accordance with Sec. 1201.14.
    (j) Date of service. The date on which documents are served on other 
parties.
    (k) Certificate of service. A document certifying that a party has 
served copies of pleadings on the other parties or, in the case of paper 
documents associated with electronic filings under paragraph (h) of 
Sec. 1201.14, on the MSPB.
    (l) Date of filing. 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 delivery is the date the document was delivered to the 
commercial delivery service. The date of filing by e-filing is the date 
of electronic submission.
    (m) Electronic filing (e-filing). Filing and receiving documents in 
electronic form in proceedings within the Board's appellate or original 
jurisdiction in accordance with Sec. 1201.14.
    (n) E-filer. A party or representative who has registered to engage 
in e-filing under paragraph (e) of Sec. 1201.14.

[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 
FR 65235, Dec. 19, 1994; 68 FR 59860, Oct. 20, 2003; 69 FR 57628, Sept. 
27, 2004; 73 FR 10129, Feb. 26, 2008]



                Subpart B_Procedures for Appellate Cases

                                 General



Sec. 1201.11  Scope and policy.

    The regulations in this subpart apply to Board appellate proceedings 
except as otherwise provided in Sec. 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

[[Page 14]]

manner that expedites the processing of each case. It is the Board's 
policy that these rules will be applied in a manner that ensures the 
fair and efficient processing of each case.

[74 FR 9343, Mar. 4, 2009]



Sec. 1201.12  Revocation, amendment, or waiver of rules.

    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.



Sec. 1201.13  Appeals by Board employees.

    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.



Sec. 1201.14  Electronic filing procedures.

    (a) General. This section prescribes the rules and procedures by 
which parties and representatives to proceedings within the MSPB's 
appellate and original jurisdiction may file and receive documents in 
electronic form.
    (b) Matters subject to electronic filing. Subject to the 
registration requirement of paragraph (e) of this section, parties and 
representatives may use electronic filing (e-filing) to do any of the 
following:
    (1) File any pleading, including a new appeal, in any matter within 
the MSPB's appellate jurisdiction (Sec. 1201.3);
    (2) File any pleading in any matter within the MSPB's original 
jurisdiction (Sec. 1201.2);
    (3) File a petition for enforcement of a final MSPB decision (Sec. 
1201.182);
    (4) File a motion for an attorney fee award as a prevailing party 
(Sec. 1201.203);
    (5) File a motion for compensatory or consequential damages (Sec. 
1201.204);
    (6) Designate a representative, revoke such a designation, or change 
such a designation (Sec. 1201.31); or
    (7) Notify the MSPB of a change in contact information such as 
address (geographic or electronic mail) or telephone number.
    (c) Matters excluded from electronic filing. Electronic filing may 
not be used to:
    (1) File a request to hear a case as a class appeal or any 
opposition thereto (Sec. 1201.27);
    (2) Serve a subpoena (Sec. 1201.83); or
    (3) File a pleading with the Special Panel (Sec. 1201.173).
    (d) Internet is sole venue for electronic filing. Following the 
instructions at e-Appeal Online, the MSPB's e-Appeal site (https://e-
appeal.mspb.gov), is the only method allowed for filing electronic 
pleadings with the MSPB. The MSPB will not accept pleadings filed by 
electronic mail (e-mail).
    (e) Registration as an e-filer. (1) Registration as an e-filer 
constitutes consent to accept electronic service of pleadings filed by 
other registered e-filers and documents issued by the MSPB. Except when 
filing a new appeal within the MSPB's appellate jurisdiction (Sec. 
1201.3), no party or representative may file an electronic pleading with 
the MSPB unless he or she has registered with the MSPB as an e-filer.
    (2) With the exception of a designation of a representative by a 
party who is an individual, the exclusive means for a party or 
representative to register as an e-filer during an MSPB proceeding is to 
follow the instructions at e-Appeal Online (https://e-appeal.mspb.gov).
    (3) When a party who is an individual is represented, the party and 
the representative can make separate determinations whether to register 
as an e-filer. For example, an appellant may file and receive pleadings 
and MSPB documents by non-electronic means,

[[Page 15]]

even though his or her representative has registered as an e-filer. When 
a party has more than one representative, however, all representatives 
must choose the same method of service.
    (4) A party or representative may withdraw his or her registration 
as an e-filer. Such withdrawal means that, effective upon the MSPB's 
receipt of this withdrawal, pleadings and MSPB documents will no longer 
be served on that person in electronic form. A withdrawal of 
registration as an e-filer may be filed at e-Appeal Online, in which 
case service is governed by paragraph (j) of this section, or by non-
electronic means, in which case service is governed by Sec. 1201.26(b).
    (5) Registration as an e-filer applies only to a single MSPB appeal 
or proceeding. If an appeal is dismissed without prejudice, however, and 
is later refiled, an election of e-filing status will remain in effect. 
An election of e-filing status will also remain in effect for purposes 
of filing a petition for enforcement under Subpart F of this part, or 
filing a motion for an attorney fee award or compensatory or 
consequential damages under Subpart H of this Part.
    (6) Each e-filer must notify the MSPB and other participants of any 
change in his or her e-mail address. When done via e-Appeal Online, such 
notification is done by selecting the ``Pleading'' option.
    (f) e-Filing not mandatory for e-filers. A party or representative 
who has registered as an e-filer may file any pleading by non-electronic 
means, i.e., via postal mail, fax, or personal or commercial delivery.
    (g) Form of electronic pleadings--(1) Options for e-filing. An 
appellant or representative using e-Appeal Online to file a new appeal 
within the MSPB's appellate jurisdiction (Sec. 1201.3) must complete 
the structured interview at that site (https://e-appeal.mspb.gov). For 
all other pleadings, the e-filer has the option of uploading an 
electronic file or entering the text of the pleading online. Regardless 
of the means of filing a particular pleading, the e-filer will be 
allowed to submit supporting documentation such as attachments, in 
either electronic or paper form, as described in paragraphs (g)(2), 
(g)(3), and (h) of this section.
    (2) Electronic formats allowed. The MSPB will accept numerous 
electronic formats, including word-processing and spreadsheet formats, 
Portable Document Format (PDF), and image files (files created by 
scanning). A list of formats allowed can be found at e-Appeal Online. 
All electronic documents must be formatted so that they will print on 
standard 8\1/2\ inch by 11 inch paper.
    (3) Requirements for pleadings with 3 or more electronic 
attachments. An e-filer who uploads 3 or more supporting documents, in 
addition to the document that constitutes the primary pleading, must 
identify each attachment, either by filling out the table for such 
attachments at e-Appeal Online, or by uploading the supporting documents 
in the form of one or more PDF files in which each attachment is 
bookmarked. Each attachment must be designated with a brief descriptive 
label, which will include exhibit numbers or letters where appropriate 
or required, e.g., ``Exh. 4b, Decision Notice.''
    (h) Hybrid pleadings that include both electronic and paper 
documents. An e-filer may file a hybrid pleading in which part of the 
pleading is submitted electronically, and part of the pleading consists 
of one or more paper documents filed by non-electronic means. All 
components of a hybrid pleading are subject to applicable time limits. 
If one or more parts of a hybrid pleading are untimely filed, the judge 
or the Clerk may reject the untimely part or parts while accepting 
timely filed parts of the same pleading.
    (i) Repository at e-Appeal Online. All notices, orders, decisions, 
and other documents issued by the MSPB, as well as all pleadings filed 
via e-Appeal Online, will be made available to parties and their 
representatives for viewing and downloading at the Repository at e-
Appeal Online. In addition, most pleadings filed at the petition for 
review stage of adjudication, and some pleadings filed at the regional 
office level, will be available at the Repository. Also available at the 
Repository will be an electronic ``docket sheet'' listing all documents 
issued by the MSPB to the parties, as well as all

[[Page 16]]

pleadings filed by the parties, including those pleadings that are not 
available for viewing and downloading in electronic form. Access to 
appeal documents at the Repository will be limited to the parties and 
representatives of the appeals in which they were filed.
    (j) Service of electronic pleadings and MSPB documents. (1) When 
MSPB documents are issued, e-mail messages will be sent to e-filers that 
notify them of the issuance and that contain links to the Repository 
where the documents can be viewed and downloaded. Paper copies of these 
documents will not ordinarily be served on e-filers. Pleadings submitted 
via e-Appeal Online will be available to parties and representatives at 
the e-Appeal Online Repository, and the MSPB will send e-mail messages 
to other e-filers notifying them of each pleading, with a link to the 
Repository. When using e-Appeal Online to file a pleading, e-filers will 
be notified of all documents that must be served by non-electronic 
means, and they must certify that they will serve all such documents no 
later than the first business day after the electronic submission.
    (2) Delivery of e-mail can encounter a number of failure points. If 
the MSPB is advised of non-delivery, it will attempt to redeliver and, 
if that is unsuccessful, will deliver by postal mail or other means. E-
filers are responsible for ensuring that e-mail from @mspb.gov is not 
blocked by filters.
    (3) E-filers are responsible for monitoring case activity at the 
Repository at e-Appeal Online to ensure that they have received all 
case-related documents.
    (k) Documents requiring a signature. Electronic documents filed by a 
party who has registered as an e-filer pursuant to this section shall be 
deemed to be signed for purposes of any regulation in part 1201, 1203, 
1208, or 1209 of this chapter that requires a signature.
    (l) Affidavits and declarations made under penalty of perjury. 
Registered e-filers may submit electronic pleadings in the form of 
declarations made under penalty of perjury under 28 U.S.C. 1746, as 
described in Appendix IV to this part. If the declarant is someone other 
than the e-filer, a physically signed affidavit or declaration should be 
uploaded as an image file, or submitted separately as a non-electronic 
document under paragraph (h) of this section.
    (m) Date electronic documents are filed and served. (1) As provided 
in Sec. 1201.4(l) of this Part, the date of filing for pleadings filed 
via e-Appeal Online is the date of electronic submission. All pleadings 
filed via e-Appeal Online are time stamped with Eastern Time, but the 
timeliness of a pleading is assessed based on the time zone where the 
pleading is being filed. For example, a pleading filed at 11 p.m. 
Pacific Time on August 20 will be stamped by e-Appeal Online as being 
filed at 2 a.m. Eastern Time on August 21. However, if the pleading was 
required to be filed with the Western Regional Office on August 20, it 
would be considered timely, as it was submitted prior to midnight 
Pacific Time on August 20.
    (2) MSPB documents served electronically on registered e-filers are 
deemed received on the date of electronic submission.
    (n) Authority of a judge or the Clerk to regulate e-filing. (1) In 
the event that the MSPB or any party encounters difficulties filing, 
serving, or receiving electronic documents, the judge or the Clerk of 
the Board may order one or more parties to cease filing pleadings by e-
filing, cease serving documents in electronic form, or take both these 
actions. In such instances, filing and service shall be undertaken in 
accordance with Sec. 1201.26. The authority to order the cessation of 
the use of electronic filing may be for a particular submission, for a 
particular time frame, or for the duration of the pendency of a case.
    (2) A judge or the Clerk of the Board may require that any document 
filed electronically be submitted in non-electronic form and bear the 
written signature of the submitter. A party receiving such an order from 
a judge or the Clerk of the Board shall, within 5 calendar days, serve 
on the judge or Clerk of the Board by postal mail, by fax, or by 
commercial or personal delivery a signed, non-electronic copy of the 
document.
    (o) MSPB reserves the right to revert to traditional methods of 
service. The MSPB may serve documents via traditional

[[Page 17]]

means--postal mail, fax, personal or commercial delivery--at its 
discretion. Parties and their representatives are responsible for 
ensuring that the MSPB always has their current postal mailing 
addresses, even when they have registered as e-filers.

[73 FR 10129, Feb. 26, 2008]

                   Appeal of Agency Action; Pleadings



Sec. 1201.21  Notice of appeal rights.

    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:
    (a) Notice of the time limits for appealing to the Board, the 
requirements of Sec. 1201.22(c), and the address of the appropriate 
Board office for filing the appeal;
    (b) A copy, or access to a copy, of the Board's regulations;
    (c) A copy of the MSPB appeal form available at the Board's Web site 
(http://www.mspb.gov), and
    (d) Notice of any right the employee has to file a grievance, 
including:
    (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;
    (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
    (3) Whether there is any right to request Board review of a final 
decision on a grievance in accordance with Sec. 1201.154(d).

[74 FR 9343, Mar. 4, 2009]



Sec. 1201.22  Filing an appeal and responses to appeals.

    (a) Place of filing. Appeals, and responses to those appeals, must 
be filed with the appropriate Board regional or field office. See Sec. 
1201.4(d) of this part.
    (b) Time of filing. (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 the appellant's 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 
Sec. 1201.23 of this part.
    (2) The time limit prescribed by paragraph (b)(1) of this section 
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 Reemployment Rights Act (Pub. L. 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 (Pub. L. 105-339). See part 1209 of this 
title for the statutory filing time limits applicable to whistleblower 
appeals and stay requests.
    (c) Timeliness of appeals. 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.
    (d) Method of filing an appeal. Filing of an appeal must be made 
with the appropriate Board office by commercial or personal delivery, by 
facsimile, by mail, or by electronic filing under Sec. 1201.14.
    (e) Filing a response. Filing of a response must be made with the 
appropriate Board office by commercial or personal delivery, by 
facsimile, by mail, or by electronic filing under Sec. 1201.14.

[54 FR 53504, Dec. 29, 1989]

    Editorial Note: For Federal Register citations affecting Sec. 
1201.22, see the List of CFR Sections Affected, which appears in the

[[Page 18]]

Finding Aids section of the printed volume and on GPO Access.



Sec. 1201.23  Computation of time.

    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.

    Example: 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.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994]



Sec. 1201.24  Content of an appeal; right to hearing.

    (a) Content. Only an appellant, his or her designated 
representative, or a party properly substituted under Sec. 1201.35 may 
file an appeal. Appeals may be in any format, including letter form. An 
appeal may be filed in electronic form provided that the requirements of 
Sec. 1201.14 have been satisfied. All appeals must contain the 
following:
    (1) The name, address, and telephone number of the appellant, and 
the name and address of the agency that took the action;
    (2) A description of the action the agency took and its effective 
date;
    (3) A request for hearing if the appellant wants one;
    (4) A statement of the reasons why the appellant believes the agency 
action is wrong;
    (5) A statement of the action the appellant would like the judge to 
order;
    (6) The name, address, and telephone number of the appellant's 
representative, if the appellant has a representative;
    (7) The notice of the decision to take the action being appealed, 
along with any relevant documents;
    (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
    (9) The signature of the appellant or, if the appellant has a 
representative, of the representative. If the appeal is electronically 
filed, compliance with Sec. 1201.14 and the directions at the Board's 
e-Appeal site (https://e-appeal.mspb.gov) satisfy the signature 
requirement.
    (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.
    (c) Use of Board form or electronic filing. An appellant may comply 
with paragraph (a) of this section, and with Sec. 1201.31, by 
completing MSPB Form 185, or by completing all requests for information 
marked as required at the e-Appeal site (https://e-appeal.mspb.gov). 
MSPB Form 185 can be accessed at the Board's Web site (http://
www.mspb.gov).
    (d) Right to hearing. Under 5 U.S.C. 7701, an appellant has a right 
to a hearing.
    (e) Timely request. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59862, Oct. 20, 2003; 
69 FR 57629, Sept. 27, 2004]



Sec. 1201.25  Content of agency response.

    The agency response to an appeal must contain the following:
    (a) The name of the appellant and of the agency whose action the 
appellant is appealing;
    (b) A statement identifying the agency action taken against the 
appellant and stating the reasons for taking the action;
    (c) All documents contained in the agency record of the action;
    (d) Designation of and signature by the authorized agency 
representative; and
    (e) Any other documents or responses requested by the Board.

[[Page 19]]



Sec. 1201.26  Number of pleadings, service, and response.

    (a) Number. The appellant must file two copies of both the appeal 
and all attachments with the appropriate Board office, unless the 
appellant files an appeal in electronic form under Sec. 1201.14.
    (b) Service--(1) Service by the Board. 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.
    (2) Service by the parties. The parties must serve on each other one 
copy of each pleading, as defined by Sec. 1201.4(b), and all documents 
submitted with it, except for the appeal. They may do so by mail, by 
facsimile, by commercial or personal delivery, or by electronic filing 
in accordance with Sec. 1201.14. Documents and pleadings must be served 
upon each party and 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.
    (c) Paper size. 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. All 
electronic documents must be formatted so that they will print on 8\1/2\ 
by 11-inch paper.

[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58 
FR 36345, July 7, 1993; 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 
27, 2004]



Sec. 1201.27  Class appeals.

    (a) Appeal. 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.
    (b) Procedure. 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.
    (c) Standards. 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.
    (d) Electronic filing. A request to hear a case as a class appeal 
and any opposition thereto may not be filed in electronic form. 
Subsequent pleadings may be filed and served in electronic form, 
provided that the requirements of Sec. 1201.14 are satisfied.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 
62 FR 59992, Nov. 6, 1997; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, 
Sept. 27, 2004]



Sec. 1201.28  Case suspension procedures.

    (a) Joint requests. The parties may submit a joint request for 
additional time to pursue discovery or settlement. Upon receipt of such 
request, an order suspending processing of the case for a period up to 
30 days may be issued at the discretion of the judge.
    (b) Unilateral requests. In lieu of participating in a joint 
request, either party may submit a unilateral request for additional 
time to pursue discovery as provided in this subpart. Unilateral 
requests for additional time of up to 30 days may be granted for good 
cause shown at the discretion of the judge.

[[Page 20]]

    (c) Time for filing requests. 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).
    (d) Untimely requests. The judge may consider requests for 
suspensions that are filed after the time limit set forth in paragraph 
(c) of this section. Such requests may be granted at the discretion of 
the judge.
    (e) Early termination of suspension period. 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.
    (f) Limitation on suspension period. No case may be suspended for 
more than a total of 30 days under the provisions of this section.
    (g) Termination after 30 days. If the final day of the 30-day 
suspension period falls on a day on which the MSPB is closed for 
business, adjudication shall resume as of the first business day 
following the expiration of the 30-day period.

[68 FR 54651, Sept. 18, 2003, as amended at 73 FR 18150, Apr. 3, 2008]

                 Parties, Representatives, and Witnesses



Sec. 1201.31  Representatives.

    (a) Procedure. A party to an appeal may be represented in any matter 
related to the appeal. Parties may designate a representative, revoke 
such a designation, and change such a designation in a signed 
submission, submitted as a pleading.
    (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.
    (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.
    (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.
    (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.
    (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,

[[Page 21]]

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 Sec. Sec. 
1201.91 through 1201.93 of this part shall not apply.
    (4) A proceeding will not be delayed because the judge excludes a 
person from the proceeding, except that:
    (i) Where the judge excludes a party's representative, the judge 
will give the party a reasonable time to obtain another representative; 
and
    (ii) Where the judge certifies an interlocutory appeal of an 
exclusion ruling to the Board, the judge or the Board may stay the 
proceeding sua sponte or on the motion of a party for a stay of the 
proceeding.
    (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.

[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; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004]



Sec. 1201.32  Witnesses; right to representation.

    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.



Sec. 1201.33  Federal witnesses.

    (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).
    (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.
    (c) An order obtained under paragraph (b) of this section may be 
enforced as provided under subpart F of this part.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997]



Sec. 1201.34  Intervenors and amicus curiae.

    (a) Explanation of Intervention. 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.
    (b) Intervenors as a matter of right. (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.
    (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.
    (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.
    (c) Permissive intervenors. (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.

[[Page 22]]

    (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 Sec. 1201.91 of this part.
    (d) Role of intervenors. Intervenors have the same rights and duties 
as parties, with the following two exceptions:
    (1) Intervenors do not have an independent right to a hearing; and
    (2) Permissive intervenors may participate only on the issues 
affecting them. The judge is responsible for determining the issues on 
which permissive intervenors may participate.
    (e) Amicus curiae. 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.



Sec. 1201.35  Substituting parties.

    (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.
    (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.
    (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.



Sec. 1201.36  Consolidating and joining appeals.

    (a) Explanation. (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.
    (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.
    (b) Action by judge. A judge may consolidate or join cases on his or 
her own motion or on the motion of a party if doing so would:
    (1) Expedite processing of the cases; and
    (2) Not adversely affect the interests of the parties.
    (c) Any objection to a motion for consolidation or joinder must be 
filed within 10 days of the date of service of the motion.



Sec. 1201.37  Witness fees.

    (a) Federal employees. 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.
    (b) Other witnesses. 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.
    (c) Payment of witness fees and travel costs. 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.
    (d) A witness who is denied the witness fees and travel costs 
required by paragraphs (b) and (c) of this section may file a written 
request that the judge order the party who requested the presence of the 
witness to provide such fees and travel costs. The judge will act on 
such a request promptly and, where warranted, will order the party to 
comply with the requirements of paragraphs (b) and (c) of this section.

[[Page 23]]

    (e) An order obtained under paragraph (d) of this section may be 
enforced as provided under subpart F of this part.

[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; 73 FR 6833, Feb. 
6, 2008]

                                 Judges



Sec. 1201.41  Judges.

    (a) Exercise of authority. 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.
    (b) Authority. 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:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas under Sec. 1201.81 of this part;
    (3) Rule on offers of proof and receive relevant evidence;
    (4) Rule on discovery motions under Sec. 1201.73 of this part;
    (5) After notice to the parties, order a hearing on his or her own 
initiative if the judge determines that a hearing is necessary:
    (i) To resolve an important issue of credibility;
    (ii) To ensure that the record on significant issues is fully 
developed; or
    (iii) To otherwise ensure a fair and just adjudication of the case;
    (6) Convene a hearing as appropriate, regulate the course of the 
hearing, maintain decorum, and exclude any disruptive persons from the 
hearing;
    (7) Exclude any person from all or any part of the proceeding before 
him or her as provided under Sec. 1201.31(d) of this part;
    (8) Rule on all motions, witness and exhibit lists, and proposed 
findings;
    (9) Require the parties to file memoranda of law and to present oral 
argument with respect to any question of law;
    (10) Order the production of evidence and the appearance of 
witnesses whose testimony would be relevant, material, and 
nonrepetitious;
    (11) Impose sanctions as provided under Sec. 1201.43 of this part;
    (12) Hold prehearing conferences for the settlement and 
simplification of issues;
    (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;
    (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;
    (15) Issue initial decisions; and
    (16) Determine, in decisions in which the appellant is the 
prevailing party, whether the granting of interim relief is appropriate.
    (c) Settlement--(1) Settlement discussion. The judge may initiate 
attempts to settle the appeal informally at any time. The parties may 
agree to waive the prohibitions against ex parte communications during 
settlement discussions, and they may agree to any limits on the waiver.
    (2) Agreement. 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.
    (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.
    (ii) If the agreement is not entered into the record, the Board will 
not retain jurisdiction to ensure compliance.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 
63 FR 35500, June 30, 1998]



Sec. 1201.42  Disqualifying a judge.

    (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.

[[Page 24]]

    (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.)
    (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 Sec. 1201.91 of this part. Failure to request 
certification is considered a waiver of the request for withdrawal.



Sec. 1201.43  Sanctions.

    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.
    (a) Failure to comply with an order. When a party fails to comply 
with an order, the judge may:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (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;
    (3) Permit the requesting party to introduce secondary evidence 
concerning the information sought; and
    (4) Eliminate from consideration any appropriate part of the 
pleadings or other submissions of the party that fails to comply with 
the order.
    (b) Failure to prosecute or defend appeal. 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.
    (c) Failure to make timely filing. The judge may refuse to consider 
any motion or other pleading that is not filed in a timely fashion in 
compliance with this subpart.

                                Hearings



Sec. 1201.51  Scheduling the hearing.

    (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.
    (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.
    (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.
    (d) The Board has established certain approved hearing locations, 
which are published as a Notice in the Federal Register. 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.



Sec. 1201.52  Public hearings.

    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.



Sec. 1201.53  Record of proceedings.

    (a) Preparation. 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.
    (b) Copies. When requested and when costs are paid, a copy of the 
official

[[Page 25]]

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.
    (c) Exceptions to payment of costs. A party may not have to pay for 
a hearing tape recording or written transcript if he has a good reason 
to support a request for an exception. If a party believes he has a good 
reason and the request is made before the judge issues an initial 
decision, the party must send 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, who shall have authority 
to grant or deny such requests. The party must clearly state the reason 
for the request in an affidavit or sworn statement.
    (d) Corrections to written transcript. Corrections to the official 
written 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.
    (e) Official record. 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.

[65 FR 19293, Apr. 11, 2000, as amended at 70 FR 30608, May 27, 2005]



Sec. 1201.55  Motions.

    (a) Form. 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 Sec. 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.
    (b) Objection. 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.
    (c) Motions for extension of time. Motions for extension of time 
will be granted only on a showing of good cause.
    (d) Motions for protective orders. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]



Sec. 1201.56  Burden and degree of proof; affirmative defenses.

    (a) Burden and degree of proof--(1) Agency: 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:
    (i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is 
supported by substantial evidence; or

[[Page 26]]

    (ii) It is brought under any other provision of law or regulation 
and is supported by a preponderance of the evidence.
    (2) Appellant. The appellant has the burden of proof, by a 
preponderance of the evidence, with respect to:
    (i) Issues of jurisdiction;
    (ii) The timeliness of the appeal; and
    (iii) Affirmative defenses.

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.
    (b) Affirmative defenses of the appellant. 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:
    (1) Shows harmful error in the application of the agency's 
procedures in arriving at its decision;
    (2) Shows that the decision was based on any prohibited personnel 
practice described in 5 U.S.C. 2302(b); or
    (3) Shows that the decision was not in accordance with law.
    (c) Definitions. The following definitions apply to this part:
    (1) Substantial evidence. 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.
    (2) Preponderance of the evidence. 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.
    (3) Harmful error. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 
70 FR 30608, May 27, 2005]



Sec. 1201.57  Order of hearing.

    (a) In cases in which the agency has taken an action against an 
employee, the agency will present its case first.
    (b) The appellant will proceed first at hearings convened on the 
issues of:
    (1) Jurisdiction;
    (2) Timeliness; or
    (3) Office of Personnel Management disallowance of retirement 
benefits, when the appellant applied for those benefits.
    (c) The judge may vary the normal order of presenting evidence.



Sec. 1201.58  Closing the record.

    (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.
    (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.
    (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.

                                Evidence



Sec. 1201.61  Exclusion of evidence and testimony.

    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.

[[Page 27]]



Sec. 1201.62  Producing prior statements.

    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.



Sec. 1201.63  Stipulations.

    The parties may stipulate to any matter of fact. The stipulation 
will satisfy a party's burden of proving the fact alleged.



Sec. 1201.64  Official notice.

    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.

                                Discovery



Sec. 1201.71  Purpose of discovery.

    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. 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.



Sec. 1201.72  Explanation and scope of discovery.

    (a) Explanation. 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.
    (b) Scope. 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.
    (c) Methods. Parties may use one or more of the methods provided 
under the Federal Rules of Civil Procedure. These methods include 
written interrogatories to parties, depositions, requests for production 
of documents or things for inspection or copying, and requests for 
admission.
    (d) Limitations. The judge may limit the frequency or extent of use 
of the discovery methods permitted by these regulations. Such 
limitations may be imposed if the judge finds that:
    (1) The discovery sought is cumulative or duplicative, or is 
obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (2) The party seeking discovery has had sufficient opportunity by 
discovery in the action to obtain the information sought; or
    (3) The burden or expense of the proposed discovery outweighs its 
likely benefit.

[68 FR 54651, Sept. 18, 2003, as amended at 73 FR 18150, Apr. 3, 2008; 
73 FR 21415, Apr. 21, 2008]



Sec. 1201.73  Initial disclosures and discovery procedures.

    (a) Initial disclosures. Except to the extent otherwise directed by 
order, each party must, without awaiting a discovery request and within 
10 days

[[Page 28]]

following the date of the MSPB's acknowledgment order, provide the 
following information to the other party:
    (1) The agency must provide:
    (i) A copy of, or a description by category or location of all 
documents in the possession, custody, or control of the agency that the 
agency may use in support of its claims or defenses, and
    (ii) The name and, if known, the address, telephone number, and e-
mail address of each individual likely to have discoverable information 
that the agency may use in support of its claims or defenses, 
identifying the subjects of such information.
    (2) The appellant must provide:
    (i) A copy of, or a description by category or location of all 
documents in the possession, custody, or control of the appellant that 
the appellant may use in support of his or her claims or defenses, and
    (ii) The name and, if known, the address, telephone number, and e-
mail address of each individual likely to have discoverable information 
that the appellant may use in support of his or her claims or defenses, 
identifying the subjects of such information.
    (3) Each party must make its initial disclosure based upon the 
information then reasonably available to the party. A party is not 
excused from making its disclosures because it has not fully completed 
its investigation of its case, because it challenges the sufficiency of 
the other party's disclosures, or because the other party has not made 
its disclosures.
    (b) Discovery from a party. 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 Sec. 1201.73(f), and must specify the time 
and place of the taking of the deposition, if applicable. 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.
    (c) Discovery from a nonparty, including a nonparty Federal agency. 
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 MSPB 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 MSPB-approved discovery request and subpoena on the individual or 
entity, or for arranging for its service.
    (d) Responses to discovery requests. A party, or a Federal agency 
that is not a party, must answer a discovery request within the time 
provided under paragraph (f)(2) of this section, either by furnishing to 
the requesting party the information or testimony requested or agreeing 
to make deponents available to testify within a reasonable time, or by 
stating an objection to the particular request and the reasons for the 
objection. Parties and non-parties may respond to discovery requests by 
electronic mail if authorized by the requesting party.
    (e) Motions to compel discovery. (1) 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

[[Page 29]]

MSPB-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. Before 
filing any motion to compel discovery, the moving party shall discuss 
the anticipated motion with the opposing party either in person or by 
telephone and the parties shall make a good faith effort to resolve the 
discovery dispute and narrow the areas of disagreement. The motion shall 
include:
    (i) A copy of the original request and a statement showing that the 
information sought is relevant and material; and
    (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 to part 1201.); 
and
    (iii) A statement that the parties have discussed the anticipated 
motion and have made a good faith effort to resolve the discovery 
dispute and narrow the areas of disagreement.
    (2) 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 (f)(4) of this section.
    (f) Time limits. (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.
    (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.
    (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 (f)(1) of this section or as the judge otherwise directs.
    (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.
    (5) Discovery must be completed within the time the judge 
designates.
    (g) Limits on the number of discovery requests. (1) Absent prior 
approval by the judge, interrogatories served by parties upon another 
party or a nonparty may not exceed 25 in number, including all discrete 
subparts.
    (2) Absent prior approval by the judge or agreement by the parties, 
each party may not take more than 10 depositions.
    (3) Requests to exceed the limitations set forth in paragraphs 
(g)(1) and (g)(2) of this section may be granted at the discretion of 
the judge. In considering such requests, the judge shall consider the 
factors identified in Sec. 1201.72(d) of this part.

[73 FR 18150, Apr. 3, 2008]



Sec. 1201.74  Orders for discovery.

    (a) Motion for an order compelling discovery. Motions for orders 
compelling discovery and motions for the appearance of nonparties must 
be filed with the judge in accordance with Sec. 1201.73(e)(1) and 
(f)(4). An administrative judge may deny a motion to compel discovery if 
a party fails to comply with the requirements of 5 CFR Sec. 
1201.73(e)(1) and (f)(4).
    (b) Content of order. Any order issued will include, where 
appropriate:
    (1) A provision that the person to be deposed must be notified of 
the time and place of the deposition;
    (2) Any conditions or limits concerning the conduct or scope of the 
proceedings or the subject matter that may be necessary to prevent undue

[[Page 30]]

delay or to protect a party or other individual or entity from undue 
expense, embarrassment, or oppression;
    (3) Limits on the time for conducting depositions, answering written 
interrogatories, or producing documentary evidence; and
    (4) Other restrictions upon the discovery process that the judge 
sets.
    (c) Noncompliance. The judge may impose sanctions under Sec. 
1201.43 of this part for failure to comply with an order compelling 
discovery.

[54 FR 53504, Dec. 29, 1989, as amended at 73 FR 18151, Apr. 3, 2008]



Sec. 1201.75  Taking depositions.

    Depositions may be taken by any method agreed upon by the parties. 
The person providing information is subject to penalties for intentional 
false statements.

                                Subpoenas



Sec. 1201.81  Requests for subpoenas.

    (a) Request. Parties who wish to obtain subpoenas that would require 
the attendance and testimony of witnesses, or subpoenas that would 
require the 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. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a 
subpoena requiring the attendance and testimony of any individual 
regardless of location and for the production of documentary or other 
evidence from any place in the United States, any territory or 
possession of the United States, the Commonwealth of Puerto Rico or the 
District of Columbia. Subpoenas are not ordinarily required to obtain 
the attendance of Federal employees as witnesses.
    (b) Form. Parties requesting subpoenas must file their requests, in 
writing, with the judge. Each request must identify specifically the 
books, papers, or testimony desired.
    (c) Relevance. The request must be supported by a showing that the 
evidence sought is relevant and that the scope of the request is 
reasonable.
    (d) Rulings. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30608, May 27, 2005]



Sec. 1201.82  Motions to quash subpoenas.

    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.



Sec. 1201.83  Serving subpoenas.

    (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.
    (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.



Sec. 1201.84  Proof of service.

    The person who has served the subpoena must certify that he or she 
did so:
    (a) By delivering it to the witness in person,
    (b) By registered or certified mail, or
    (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.

The document in which the party makes this certification also must 
include a statement that the prescribed fees have been paid or offered.



Sec. 1201.85  Enforcing subpoenas.

    (a) If a person who has been served with a Board subpoena fails or 
refuses

[[Page 31]]

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.
    (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).

                          Interlocutory Appeals



Sec. 1201.91  Explanation.

    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 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.



Sec. 1201.92  Criteria for certifying interlocutory appeals.

    The judge will certify a ruling for review only if the record shows 
that:
    (a) The ruling involves an important question of law or policy about 
which there is substantial ground for difference of opinion; and
    (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.



Sec. 1201.93  Procedures.

    (a) Motion for certification. 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.
    (b) Certification and review. 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 
Sec. Sec. 1201.113 and 1201.114 of this part.
    (c) Stay of hearing. 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.

                         Ex Parte Communications



Sec. 1201.101  Explanation and definitions.

    (a) Explanation. 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

[[Page 32]]

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.
    (b) Definitions for purposes of this section--(1) Interested party 
includes:
    (i) Any party or representative of a party involved in a proceeding 
before the Board; and
    (ii) Any other person who might be affected by the outcome of a 
proceeding before the Board.
    (2) Decision-making official means any judge, officer or other 
employee of the Board designated to hear and decide cases.



Sec. 1201.102  Prohibition on ex parte communications.

    Except as otherwise provided in Sec. 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.



Sec. 1201.103  Placing communications in the record; sanctions.

    (a) Any communication made in violation of Sec. 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.
    (b) If there has been a violation of Sec. 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.
    (c) The following sanctions are available:
    (1) Parties. 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.
    (2) Other persons. The Board may invoke appropriate sanctions 
against other offending parties.

[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30609, May 27, 2005]

                             Final Decisions



Sec. 1201.111  Initial decision by judge.

    (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.
    (b) Each initial decision will contain:
    (1) Findings of fact and conclusions of law upon all the material 
issues of fact and law presented on the record;
    (2) The reasons or bases for those findings and conclusions;
    (3) An order making final disposition of the case, including 
appropriate relief;
    (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;
    (5) The date upon which the decision will become final (a date that, 
for purposes of this section, is 35 days after issuance); and
    (6) A statement of any further process available, including, as 
appropriate, a petition for review under Sec. 1201.114 of this part, a 
petition for enforcement under Sec. 1201.182, a motion for attorney 
fees under Sec. 1201.203, a motion to initiate an addendum proceeding 
for consequential damages or compensatory damages under Sec. 1201.204, 
and a petition for judicial review.
    (c) Interim relief. (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

[[Page 33]]

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.
    (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.

[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]



Sec. 1201.112  Jurisdiction of judge.

    (a) After issuing the initial decision, the judge will retain 
jurisdiction over a case only to the extent necessary to:
    (1) Correct the transcript; when one is obtained;
    (2) Rule on a request by the appellant for attorney fees, 
consequential damages, or compensatory damages under subpart H of this 
part;
    (3) Process any petition for enforcement filed under subpart F of 
this part;
    (4) Vacate an initial decision before that decision becomes final 
under Sec. 1201.113 in order to accept a settlement agreement into the 
record.
    (b) Nothing is this section affects the time limits prescribed in 
Sec. 1201.113 regarding the finality of an initial decision or the time 
allowed for filing a petition for review.

[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997; 70 
FR 30609, May 27, 2005]



Sec. 1201.113  Finality of decision.

    The initial decision of the judge will become final 35 days after 
issuance. Initial decisions are not precedential.
    (a) Exceptions. The initial decision will not become final if any 
party files a petition for review within the time limit for filing 
specified in Sec. 1201.114 of this part, or if the Board reopens the 
case on its own motion.
    (b) Petition for review denied. 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.
    (c) Petition for review granted or case reopened. 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.
    (d) Extensions. The Board may extend the time limit for filing a 
petition for good cause shown as specified in Sec. 1201.114 of this 
part.
    (e) Exhaustion. Administrative remedies are exhausted when a 
decision becomes final in accordance with this section.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997]



           Subpart C_Petitions for Review of Initial Decisions



Sec. 1201.114  Filing petition and cross petition for review.

    (a) Who may file. 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.
    (b) Cross petition for review. 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

[[Page 34]]

issues raised in a timely filed petition for review or in a timely filed 
cross petition for review.
    (c) Place for filing. 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 commercial or personal 
delivery, by facsimile, by mail, or by electronic filing in accordance 
with Sec. 1201.14.
    (d) Time for filing. 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. If the petitioner is represented, the 30-
day time period begins to run upon receipt of the initial decision by 
either the representative or the petitioner, whichever comes first. 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.
    (e) Extension of time to file. The Board will grant a motion for 
extension of 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 to part 1201.) 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.
    (f) Late filings. 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 to part 1201.) The affidavit or sworn 
statement must include:
    (1) The reasons for failing to request an extension before the 
deadline for the submission; and
    (2) A specific and detailed description of the circumstances causing 
the late filing, accompanied by supporting documentation or other 
evidence.

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.
    (g) Intervention--(1) By Director of OPM. 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.
    (2) By Special Counsel. (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

[[Page 35]]

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.
    (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.
    (3) Permissive intervenors. 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.
    (h) Service. A party submitting a pleading must serve a copy of it 
on each party and on each representative, as required by paragraph 
(b)(2) of Sec. 1201.26.
    (i) Closing the record. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 62 
FR 59992, Nov. 6, 1997; 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 
27, 2004; 73 FR 6833, Feb. 6, 2008]



Sec. 1201.115  Contents of petition for review.

    (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.
    (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).
    (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.
    (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).
    (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.
    (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.
    (d) The Board, after providing the other parties with an opportunity 
to respond, may grant a petition for review when it is established that:

[[Page 36]]

    (1) New and material evidence is available that, despite due 
diligence, was not available when the record closed; or
    (2) The decision of the judge is based on an erroneous 
interpretation of statute or regulation.

[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]



Sec. 1201.116  Appellant requests for enforcement of interim relief.

    (a) Before a final decision is issued. 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.
    (b) After a final decision is issued. If the appellant is not the 
prevailing party in the final Board order, and if the appellant believes 
that the agency has not provided full interim relief, the appellant may 
file an enforcement petition with the regional office under Sec. 
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 Sec. 1201.183.

[59 FR 30864, June 16, 1994]



Sec. 1201.117  Procedures for review or reopening.

    (a) In any case that is reopened or reviewed, the Board may:
    (1) Issue a single decision that denies or grants a petition for 
review, reopens the appeal, and decides the case;
    (2) Hear oral arguments;
    (3) Require that briefs be filed;
    (4) Remand the appeal so that the judge may take further testimony 
or evidence or make further findings or conclusions; or
    (5) Take any other action necessary for final disposition of the 
case.
    (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.

[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]



Sec. 1201.118  Board reopening of case and reconsideration of initial decision.

    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.

[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]



Sec. 1201.119  OPM petition for reconsideration.

    (a) Criteria. 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:
    (1) That the Board erred in interpreting a civil service law, rule, 
or regulation affecting personnel management, and
    (2) That the Board's decision will have a substantial impact on a 
civil service law, rule, regulation, or policy directive.
    (b) Time limit. The Director must file the petition for 
reconsideration within 35 days after the date of service of the Board's 
final order.
    (c) Briefs. 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

[[Page 37]]

for reconsideration must be filed within 25 days from the date of 
service of the Director's brief.
    (d) Stays. 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.

[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]



Sec. 1201.120  Judicial review.

    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 Sec. 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.

[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]



          Subpart D_Procedures for Original Jurisdiction Cases

    Source: 62 FR 48451, Sept. 16, 1997, unless otherwise noted.

                                 General



Sec. 1201.121  Scope of jurisdiction; application of subparts B, F, and H.

    (a) Scope. 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.
    (b) Application of subparts B, F, and H. (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.
    (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.
    (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.
    (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.

[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997; 
65 FR 5409, Feb. 4, 2000]

                  Special Counsel Disciplinary Actions



Sec. 1201.122  Filing complaint; serving documents on parties.

    (a) Place of filing. 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.
    (b) Initial filing and service. 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

[[Page 38]]

of service. The initial filing in a complaint may not be submitted in 
electronic form.
    (c) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 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.
    (d) Method of filing and service. Filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by personal or 
commercial delivery to each party or the party's representative, as 
shown on the certificate of service.
    (e) Electronic filing. All pleadings, other than the complaint, may 
be filed and served in electronic form at the Board's e-Appeal site 
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14 
are satisfied.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 
69 FR 57630, Sept. 27, 2004]



Sec. 1201.123  Contents of complaint.

    (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 Sec. 1201.122 of this part, stating with particularity 
any alleged violations of law or regulation, along with the supporting 
facts.
    (1) Action to discipline an employee alleged to have committed a 
prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
    (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);
    (3) Action to discipline a State or local government employee for an 
alleged violation involving prohibited political activity, 5 U.S.C. 
1505; or
    (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).
    (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.



Sec. 1201.124  Rights; answer to complaint.

    (a) Responsibilities of Clerk of the Board. 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.
    (b) Rights. 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:
    (1) To file an answer, supported by affidavits and documentary 
evidence;
    (2) To be represented;
    (3) To a hearing on the record before an administrative law judge;
    (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
    (5) To a copy of the administrative law judge's decision and 
subsequent final decision by the Board, if any.
    (c) Filing and default. 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.

[[Page 39]]

    (d) Content. 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.



Sec. 1201.125  Administrative law judge.

    (a) An administrative law judge will hear a disciplinary action 
complaint brought by the Special Counsel.
    (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 Sec. Sec. 
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.
    (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. 7323 or 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.
    (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 after the date of 
service, within 30 days after the date the filing party received the 
recommended decision.
    (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.
    (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.
    (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.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998; 
70 FR 30609, May 27, 2005]



Sec. 1201.126  Final decisions.

    (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).
    (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.
    (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. 7323 or 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 finds a violation of 
5 U.S.C. 7323 or 7324 and determines that removal is not warranted,

[[Page 40]]

the judge will issue a recommended decision under Sec. 1201.125(c)(1) 
of this part. If the Board finds a violation of 5 U.S.C. 7323 or 7324 
and determines 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.

[62 FR 48451, Sept. 16, 1997, as amended at 70 FR 30609, May 27, 2005]



Sec. 1201.127  Judicial review.

    (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).
    (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.

                   Special Counsel Corrective Actions



Sec. 1201.128  Filing complaint; serving documents on parties.

    (a) Place of filing. 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.
    (b) Initial filing and service. 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 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. The initial filing in a complaint may not be 
submitted in electronic form.
    (c) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 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.
    (d) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the office 
determined under paragraph (a) of this section. Service may be by mail, 
by facsimile, or by personal or commercial delivery to each party or the 
party's representative, as shown on the certificate of service.
    (e) Electronic filing. All pleadings, other than the complaint, may 
be filed and served in electronic form at the Board's e-Appeal site 
(https://e-appeal.mspb.gov), provided the requirements of Sec. 1201.14 
are satisfied.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 
69 FR 57630, Sept. 27, 2004]



Sec. 1201.129  Contents of complaint.

    (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 
Sec. 1201.128 of this part, stating with particularity any alleged 
violations of law or regulation, along with the supporting facts.
    (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

[[Page 41]]

the Special Counsel's seeking corrective action. 5 U.S.C. 1214(a)(4).
    (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.



Sec. 1201.130  Rights; answer to complaint.

    (a) Rights. (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 Sec. 1201.34 of this 
part. The Clerk of the Board shall notify each such person of this 
right.
    (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).
    (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).
    (b) Filing and default. 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.
    (c) Content. 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.



Sec. 1201.131  Judge.

    (a) The Board will assign a corrective action complaint brought by 
the Special Counsel under this subpart to a judge, as defined at Sec. 
1201.4(a) of this part, for hearing.
    (b) The judge will issue an initial decision on the complaint 
pursuant to 5 U.S.C. 557. The applicable provisions of Sec. Sec. 
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.

[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]



Sec. 1201.132  Final decisions.

    (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).
    (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.
    (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).



Sec. 1201.133  Judicial review.

    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).

[[Page 42]]

                   Special Counsel Requests for Stays



Sec. 1201.134  Deciding official; filing stay request; serving documents on parties.

    (a) Request to stay personnel action. 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.
    (b) Deciding official. 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.
    (c) Place of filing. A Special Counsel stay request must be filed 
with the Clerk of the Board.
    (d) Initial filing and service. 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. The initial filing in a request for a stay may 
not be submitted in electronic form.
    (e) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 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.
    (f) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by personal or 
commercial delivery to each party or the party's representative, as 
shown on the certificate of service.
    (g) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec. 1201.14 are satisfied.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998; 
68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, 
Feb. 26, 2008]



Sec. 1201.135  Contents of stay request.

    The Special Counsel, or that official's representative, must sign 
each stay request, and must include the following information in the 
request:
    (a) The names of the parties;
    (b) The agency and officials involved;
    (c) The nature of the action to be stayed;
    (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
    (e) The laws or regulations that were violated, or that will be 
violated if the stay is not issued.



Sec. 1201.136  Action on stay request.

    (a) Initial stay. 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.
    (b) Extension of stay. 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.

[[Page 43]]

    (c) Evidence of compliance with a stay. 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.
    (d) Termination of stay. A stay may be terminated at any time, 
except that a stay may not be terminated:
    (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
    (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).
    (e) Additional information. 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.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]

                Actions Against Administrative Law Judges



Sec. 1201.137  Covered actions; filing complaint; serving documents on parties.

    (a) Covered actions. 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:
    (1) Removal;
    (2) Suspension;
    (3) Reduction in grade;
    (4) Reduction in pay; and
    (5) Furlough of 30 days or less.
    (b) Place of filing. To initiate an action against an administrative 
law judge under this subpart, an agency must file a complaint with the 
Clerk of the Board.
    (c) Initial filing and service. 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. 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. The initial filing in a complaint may not be submitted in 
electronic form.
    (d) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 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.
    (e) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by commercial or 
personal delivery to each party or the party's representative, as shown 
on the certificate of service.
    (f) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec. 1201.14 are satisfied.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct, 20, 2003; 
69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008]



Sec. 1201.138  Contents of complaint.

    A complaint filed under this section must describe with 
particularity the facts that support the proposed agency action.



Sec. 1201.139  Rights; answer to complaint.

    (a) Responsibilities of Clerk of the Board. 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

[[Page 44]]

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.
    (b) Rights. 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:
    (1) To file an answer, supported by affidavits and documentary 
evidence;
    (2) To be represented;
    (3) To a hearing on the record before an administrative law judge;
    (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
    (5) To a copy of the administrative law judge's decision and 
subsequent final decision by the Board, if any.
    (c) Filing and default. 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.
    (d) Content. 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.



Sec. 1201.140  Judge; requirement for finding of good cause.

    (a) Judge. (1) An administrative law judge will hear an action 
brought by an employing agency under this subpart against a respondent 
administrative law judge.
    (2) The judge will issue an initial decision pursuant to 5 U.S.C. 
557. The applicable provisions of Sec. Sec. 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.
    (b) Requirement for finding of good cause. A decision on a proposed 
agency action under this subpart against an administrative law judge 
will authorize 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.



Sec. 1201.141  Judicial review.

    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.



Sec. 1201.142  Actions filed by administrative law judges.

    An administrative law judge who alleges a constructive removal or 
other action by an agency in violation of 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart. The filing and serving 
requirements of 5 CFR 1201.37 apply. Such complaints shall be 
adjudicated in the same manner as agency complaints under this subpart.

[71 FR 34232, June 14, 2006]

                Removal From the Senior Executive Service



Sec. 1201.143  Right to hearing; filing complaint; serving documents on parties.

    (a) Right to hearing. 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

[[Page 45]]

proposed removal, the request will be granted.
    (b) Place of filing. 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.
    (c) Initial filing and service. 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. The initial 
filing may not be submitted in electronic form.
    (d) Subsequent filings and service. Each party must serve on every 
other party or the party's representative one copy of each of its 
pleadings, as defined by Sec. 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.
    (e) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery, to the office 
determined under paragraph (b) of this section. Service may be by mail, 
by facsimile, or by personal or commercial delivery to each party or the 
party's representative, as shown on the certificate of service.
    (f) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec. 1201.14 are satisfied.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59864, Oct, 20, 2003; 
69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008]



Sec. 1201.144  Hearing procedures; referring the record.

    (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 Sec. 1201.4(a) of this part.
    (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.
    (c) The judge will refer a copy of the record to the Special 
Counsel, the Office of Personnel Management, and the employing agency 
for whatever action may be appropriate.



Sec. 1201.145  No appeal.

    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 Sec. 
1201.143(a) of this part. The removal action will not be delayed as a 
result of the hearing.

                     Requests for Protective Orders



Sec. 1201.146  Requests for protective orders by the Special Counsel.

    (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.
    (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.
    (c) Where there is a pending Special Counsel proceeding, a Special 
Counsel motion requesting a protective order

[[Page 46]]

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 Sec. 1201.4(a) of this part, to rule on the 
motion.



Sec. 1201.147  Requests for protective orders by persons other than the Special Counsel.

    Requests for protective orders by persons other than the Special 
Counsel in connection with pending original jurisdiction proceedings are 
governed by Sec. 1201.55(d) of this part.



Sec. 1201.148  Enforcement of protective orders.

    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.



 Subpart E_Procedures for Cases Involving Allegations of Discrimination



Sec. 1201.151  Scope and policy.

    (a) Scope. (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.
    (2) ``Prohibited discrimination,'' as that term is used in this 
subpart, means discrimination prohibited by:
    (i) Section 717 of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e-16(a));
    (ii) Section 6(d) of the Fair Labor Standards Act of 1938, as 
amended (29 U.S.C. 206(d));
    (iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 791);
    (iv) Sections 12 and 15 of the Age Discrimination in Employment Act 
of 1967, as amended (29 U.S.C. 631, 633a); or
    (v) Any rule, regulation, or policy directive prescribed under any 
provision of law described in paragraphs (a)(2) (i) through (iv) of this 
section.
    (b) Policy. The Board's policy is to adjudicate impartially, 
thoroughly, and fairly all issues raised under this subpart.



Sec. 1201.152  Compliance with subpart B procedures.

    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.



Sec. 1201.153  Contents of appeal.

    (a) Contents. An appeal raising issues of prohibited discrimination 
must comply with Sec. 1201.24 of this part, with the following 
exceptions:
    (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
    (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.
    (b) Use of Board form or Internet filing option. An appellant may 
comply with paragraph (a) of this section by completing MSPB Form 185, 
or by completing all requests for information marked as required at the 
e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed 
at the Board's Web site (http://www.mspb.gov).

[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 
69 FR 57631, Sept. 27, 2004]



Sec. 1201.154  Time for filing appeal; closing record in cases involving grievance decisions.

    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:
    (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

[[Page 47]]

Board no later than 30 days after the effective date, if any, of the 
action being appealed, or 30 days after the date of the appellant's 
receipt of the agency's decision on the appealable action, whichever is 
later.
    (b) If the appellant has filed a timely formal complaint of 
discrimination with the agency:
    (1) An appeal must be filed within 30 days after the appellant 
receives the agency resolution or final decision on the discrimination 
issue; or
    (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. Once the agency resolves the matter or issues a 
final decision on the formal complaint, an appeal must be filed within 
30 days after the appellant receives the agency resolution or final 
decision on the discrimination issue.
    (c) If the appellant files an appeal prematurely under this subpart, 
the judge will dismiss the appeal without prejudice to its later 
refiling under Sec. 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.
    (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 he or she received the decision 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:
    (1) A statement of the grounds on which review is requested;
    (2) References to evidence of record or rulings related to the 
issues before the Board;
    (3) Arguments in support of the stated grounds that refer 
specifically to relevant documents, and that include relevant citations 
of authority; and
    (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.
    (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.

[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; 73 FR 6834, Feb. 6, 
2008]



Sec. 1201.155  Remand of allegations of discrimination.

    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.



Sec. 1201.156  Time for processing appeals involving allegations of discrimination.

    (a) Issue raised in appeal. 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.

[[Page 48]]

    (b) Issue not raised in appeal. 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.
    (c) Discrimination issue remanded to agency. 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.



Sec. 1201.157  Notice of right to judicial review.

    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 
Sec. 1201.120 of this part.

[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]

                        Review of Board Decision



Sec. 1201.161  Action by the Equal Employment Opportunity Commission; judicial review.

    (a) Time limit for determination. 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.
    (b) Judicial review. The Board's decision will become judicially 
reviewable on:
    (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
    (2) The date of the Commission's decision that it will not consider 
the petition filed under 5 U.S.C. 7702(b)(2).
    (c) Commission processing and time limits. 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:
    (1) Concur in the decision of the Board; or
    (2) Issue in writing and forward to the Board for its action under 
Sec. 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:
    (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
    (ii) The evidence in the record as a whole does not support the 
decision involving that provision.
    (d) Transmittal of record. The Board will transmit a copy of its 
record to the Commission upon request.
    (e) Development of additional evidence. 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 
necessary in order to comply with the Commission's request.
    (f) Commission concurrence in Board decision. 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.



Sec. 1201.162  Board action on the Commission decision; judicial review.

    (a) Board decision. Within 30 days after receipt of a decision of 
the Commission issued under 1201.161(c)(2), the Board shall consider the 
decision and:
    (1) Concur and adopt in whole the decision of the Commission; or
    (2) To the extent that the Board finds that, as a matter of law:
    (i) The Commission decision is based on an incorrect interpretation 
of any provision of any civil service law, rule, regulation, or policy 
directive, or

[[Page 49]]

    (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.
    (b) Judicial review. 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.

                              Special Panel



Sec. 1201.171  Referral of case to Special Panel.

    If the Board reaffirms its decision under Sec. 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:
    (a) The factual record compiled under this section, which will 
include a transcript of any hearing;
    (b) The decisions issued by the Board and the Commission under 5 
U.S.C. 7702; and
    (c) A transcript of oral arguments made, or legal briefs filed, 
before the Board or the Commission.



Sec. 1201.172  Organization of Special Panel; designation of members.

    (a) A Special Panel is composed of:
    (1) A Chairman, appointed by the President with the advice and 
consent of the Senate, whose term is six (6) years;
    (2) One member of the Board, designated by the Chairman of the Board 
each time a Panel is convened;
    (3) One member of the Commission, designated by the Chairman of the 
Commission each time a Panel is convened.
    (b) Designation of Special Panel members--(1) Time of designation. 
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.
    (2) Manner of designation. Letters designating the Panel members 
will be served on the Chairman of the Panel and on the parties to the 
appeal.



Sec. 1201.173  Practices and procedures of Special Panel.

    (a) Scope. The rules in this subpart apply to proceedings before a 
Special Panel.
    (b) Suspension of rules. 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.
    (c) Time limit for proceedings. 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.
    (d) Administrative assistance to the Special Panel. (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.
    (2) Assistance will include, but is not limited to, processing 
vouchers for pay and travel expenses.
    (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.
    (e) Maintaining the official record. 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.
    (f) Filing and service of pleadings. (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.

[[Page 50]]

    (2) A certificate of service specifying how and when service was 
made must accompany all submissions of the parties.
    (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.
    (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.
    (g) Briefs and responsive pleadings. 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.
    (h) Oral argument. 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.
    (i) Postargument submission. 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.
    (j) Procedural matters. Any procedural matters not addressed in 
these regulations will be resolved by written order of the Chairman of 
the Special Panel.
    (k) Electronic filing. Pleadings in matters before the Special Panel 
may not be filed or served in electronic form.

[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000; 
68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]



Sec. 1201.174  Enforcing the Special Panel decision.

    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.



Sec. 1201.175  Judicial review of cases decided under 5 U.S.C. 7702.

    (a) Place and type of review. 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)).
    (b) Time for filing request. 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.



           Subpart F_Enforcement of Final Decisions and Orders



Sec. 1201.181  Authority and explanation.

    (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.
    (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

[[Page 51]]

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.



Sec. 1201.182  Petition for enforcement.

    (a) Appellate jurisdiction. 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.
    (b) Original jurisdiction. 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.
    (c) Petition by an employee other than a party. (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 Sec. 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 Sec. 1201.34(c) of this part.
    (2) Under Sec. 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.
    (3) Under Sec. 1201.37(e) of this part, a nonparty witness who has 
obtained an order requiring the payment of witness fees and travel costs 
may petition the Board for enforcement of the order.
    (4) Under Sec. 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.
    (5) A petition for enforcement under paragraph (c)(1), (c)(2), 
(c)(3) or (c)(4) 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.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994; 
62 FR 48935, Sept. 18, 1997; 73 FR 6834, Feb. 6, 2008]



Sec. 1201.183  Procedures for processing petitions for enforcement.

    (a) Initial Processing. (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:
    (i) Evidence of compliance, including a narrative explanation of the 
calculation of back pay and other benefits, and supporting documents;
    (ii) Evidence as described in paragraph (a)(1)(i) of this section of 
the compliance actions that the party has

[[Page 52]]

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
    (iii) A statement showing good cause for the failure to comply 
completely with the decision of the Board.

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 Sec. 
1201.26(b)(2) of this part.
    (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.
    (3) The judge may convene a hearing if one is necessary to resolve 
matters at issue.
    (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 Sec. 1201.120 of this part.
    (5) If the judge finds that:
    (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
    (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.
    (6) If a recommendation described under paragraph (a)(5) of this 
section is issued, the alleged noncomplying party must do one of the 
following:
    (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.
    (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.
    (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.
    (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 the Clerk of the Board within 20 days of the date of service of the 
submission described in paragraph (a)(6) of this section.
    (b) Consideration by the Board. (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

[[Page 53]]

make this showing in writing, or to make it both personally and in 
writing.
    (2) The Board may hold a hearing on an order to show cause, or it 
may issue a decision without a hearing.
    (3) The Board's final decision on the issues of compliance is 
subject to judicial review under Sec. 1201.120 of this part.
    (c) Certification to the Comptroller General. 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.
    (d) Effect of Special Counsel's action or failure to act. 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.

[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]



                      Subpart G_Savings Provisions



Sec. 1201.191  Savings provisions.

    (a) Civil Service Reform Act of 1978 (Pub.L. 95-454)--(1) Scope. 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 effect and 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.
    (2) Administrative proceedings and appeals therefrom. 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.
    (3) Explanation. 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.
    (b) Whistleblower Protection Act of 1989 (Pub. L. 101-12)--(1) 
Scope. 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.
    (2) Administrative proceedings and appeals therefrom. 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 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.

[[Page 54]]



Subpart H_Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation 
  Expenses, Where Applicable), Consequential Damages, and Compensatory 
                                 Damages

    Source: 63 FR 41179, Aug. 3, 1998, unless otherwise noted.



Sec. 1201.201  Statement of purpose.

    (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.
    (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 Sec. 1201.202(a)(1). 
There are, however, other attorney fee provisions that apply only to 
specific kinds of cases. For example, Sec. 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.
    (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.
    (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.



Sec. 1201.202  Authority for awards.

    (a) Awards of attorney fees (plus costs, expert witness fees, and 
litigation expenses, where applicable). 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:
    (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;
    (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);
    (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;
    (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;
    (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;
    (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;
    (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
    (8) Attorney fees, expert witness fees, and other litigation 
expenses, as authorized by the Veterans Employment Opportunities Act; 5 
U.S.C. 3330c(b).

[[Page 55]]

    (b) Awards of consequential damages. The Board may order payment of 
consequential damages, including medical costs incurred, travel 
expenses, and any other reasonable and foreseeable consequential 
damages:
    (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
    (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.
    (c) Awards of compensatory damages. 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.
    (d) Definitions. For purposes of this subpart:
    (1) A proceeding on the merits 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.
    (2) An addendum proceeding 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 Sec. 1201.113 of this part or a final decision of 
the Board.

[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000]



Sec. 1201.203  Proceedings for attorney fees.

    (a) Form and content of request. 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:
    (1) Accurate and current time records;
    (2) A copy of the terms of the fee agreement (if any);
    (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
    (4) An established attorney-client relationship.
    (b) Addendum proceeding. A request for attorney fees will be decided 
in an addendum proceeding.
    (c) Place of filing. 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.
    (d) Time of filing. A motion for attorney fees 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.
    (e) Service. 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.
    (f) Hearing; applicability of subpart B. 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.

[[Page 56]]

    (g) Initial decision; review by the Board. 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.

[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000]



Sec. 1201.204  Proceedings for consequential damages and compensatory damages.

    (a) Time for making request. (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.
    (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.
    (b) Form and content of request. 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.
    (c) Service. 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.
    A party may file a pleading responding to the request within the 
time limit established by the judge or the Board, as applicable.
    (d) Addendum proceeding. (1) A request for consequential damages or 
compensatory damages will be decided in an addendum proceeding.
    (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.
    (e) Initiation of addendum proceeding. (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.
    (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.
    (f) Hearing; applicability of subpart B. 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.
    (g) Initial decision; review by the Board. 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.
    (h) Request for damages first made in proceeding before the Board. 
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 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:
    (1) Consider both the merits and the request for damages and issue a 
final decision;

[[Page 57]]

    (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
    (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.
    (i) EEOC review of decision on compensatory damages. 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.



Sec. 1201.205  Judicial review.

    A final Board decision under this subpart is subject to judicial 
review as provided under 5 U.S.C. 7703.



                 Sec. Appendix I to Part 1201 [Reserved]



Sec. Appendix II to Part 1201--Appropriate Regional or Field Office for 
                             Filing Appeals

    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 Sec. 1201.4(d) of this part. The facsimile 
numbers listed below are TDD-capable; however, calls will be answered by 
voice before being connected to the TDD. Address of Appropriate Regional 
or Field Office and Area Served:
    1. Atlanta Regional Office, 401 West Peachtree Street, NW., 10th 
floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, 
(Alabama; Florida; Georgia; Mississippi; South Carolina; and Tennessee).
    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).
    3. Northeastern Regional Office, 1601 Market Street, Suite 1700, 
Philadelphia, PA 19103, Facsimile No.: (215) 597-3456, (Connecticut; 
Delaware; Maine; Maryland--except the counties of Montgomery and Prince 
George's; Massachusetts; New Hampshire; New Jersey--except the counties 
of Bergen, Essex, Hudson, and Union; Pennsylvania; Rhode Island; 
Vermont; and West Virginia).
    3a. 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).
    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).
    5. Western Regional Office, 201 Mission Street, Suite 2310, San 
Francisco, California 94105-1831 Facsmile No.: (415) 904-0580, (Alaska; 
California; Hawaii; Idaho; Nevada; Oregon; Washington; and Pacific 
overseas areas).
    5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, 
Colorado 80228-2211, Facsimile No.: (303) 969-5109, (Arizona; Colorado; 
Kansas--except Kansas City; Montana; Nebraska; New Mexico; North Dakota; 
South Dakota; Utah; and Wyoming).
    6. Dallas Regional Office, 1100 Commerce Street, Room 620, Dallas, 
Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas; Louisiana; 
Oklahoma; and Texas).

[69 FR 11503, Mar. 11, 2004, as amended at 69 FR 61991, Oct. 22, 2004; 
72 FR 40215, July 24, 2007; 73 FR 2143, Jan. 14, 2008]



 Sec. Appendix III to Part 1201--Approved Hearing Locations By Regional 
                                 Office

                         Atlanta Regional Office

Birmingham, Alabama
Huntsville, Alabama
Mobile, Alabama
Montgomery, Alabama
Jacksonville, Florida
Miami, Florida
Orlando, Florida
Pensacola, Florida
Tallahassee, Florida
Tampa/St. Petersburg, Florida
Atlanta, Georgia
Augusta, Georgia
Macon, Georgia
Savannah, Georgia
Jackson, Mississippi
Charleston, South Carolina
Columbia, South Carolina
Chattanooga, Tennessee
Knoxville, Tennessee
Memphis, Tennessee
Nashville, Tennessee

                         Central Regional Office

Chicago, Illinois
Indianapolis, Indiana
Davenport, Iowa/Rock Island, Illinois
Des Moines, Iowa
Lexington, Kentucky

[[Page 58]]

Louisville, Kentucky
Detroit, Michigan
Minneapolis/St. Paul, Minnesota
Kansas City, Missouri
Springfield, Missouri
St. Louis, Missouri
Cleveland, Ohio
Cincinnati, Ohio
Columbus, Ohio
Dayton, Ohio
Milwaukee, Wisconsin

                         Dallas Regional Office

Little Rock, Arkansas
Alexandria, Louisiana
New Orleans, Louisiana
Oklahoma City, Oklahoma
Tulsa, Oklahoma
Corpus Christi, Texas
Dallas, Texas
El Paso, Texas
Houston, Texas
San Antonio, Texas
Temple, Texas
Texarkana, Texas

                      Northeastern Regional Office

Hartford, Connecticut
New Haven, Connecticut
Dover, Delaware
Bangor, Maine
Portland, Maine
Baltimore, Maryland
Boston, Massachusetts
Manchester, New Hampshire
Portsmouth, New Hampshire
Trenton, New Jersey
Harrisburg, Pennsylvania
Philadelphia, Pennsylvania
Pittsburgh, Pennsylvania
Wilkes-Barre, Pennsylvania
Providence, Rhode Island
Burlington, Vermont
Charleston, West Virginia
Morgantown, West Virginia

                          New York Field Office

Newark, New Jersey
Albany, New York
Buffalo, New York
New York, New York
Syracuse, New York
San Juan, Puerto Rico

                       Washington Regional Office

Washington, DC
Asheville, North Carolina
Charlotte, North Carolina
Raleigh, North Carolina
Jacksonville, North Carolina
Alexandria, Virginia
Norfolk, Virginia
Richmond, Virginia
Roanoke, Virginia

                         Western Regional Office

Anchorage, Alaska
Fresno, California
Los Angeles, California
Monterey, California
Sacramento, California
San Bernardino, California
San Diego, California
San Francisco, California
Santa Ana, California
Santa Barbara, California
Honolulu, Hawaii
Boise, Idaho
Pocatello, Idaho
Las Vegas, Nevada
Reno, Nevada
Medford, Oregon
Portland, Oregon
Seattle, Washington
Spokane, Washington
Richland, Kennewick, and Pasco, Washington

                           Denver Field Office

Phoenix, Arizona
Tucson, Arizona
Grand Junction, Colorado
Lakewood, Colorado
Pueblo, Colorado
Wichita, Kansas
Billings, Montana
Great Falls, Montana
Missoula, Montana
Omaha, Nebraska
Albuquerque, New Mexico
Bismarck, North Dakota
Fargo, North Dakota
Rapid City, South Dakota
Sioux Falls, South Dakota
Salt Lake City, Utah
Casper, Wyoming

[69 FR 11503, Mar. 11, 2004, as amended at 69 FR 61991, Oct. 22, 2004]



  Sec. Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C.1746

                               Declaration

    I, ----------------------, do hereby declare:
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct.
Executed on
________________________________________________________________________

Date

________________________________________________________________________
Signature



PART 1202_STATUTORY REVIEW BOARD--Table of Contents

    Authority: 5 U.S.C. 1204.

[[Page 59]]



Sec. 1202.1  Designating Chairman of Statutory Review Board.

    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.

[54 FR 28658, July 6, 1989]



PART 1203_PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT--Table of Contents

                                 General

Sec.
1203.1 Scope; application of part 1201, subpart B.
1203.2 Definitions.

                          Procedures for Review

1203.11 Request for regulation review.
1203.12 Granting or denying the request for regulation review.
1203.13 Filing pleadings.
1203.14 Serving documents.
1203.15 Review of regulations on the Board's own motion.
1203.16 Proceedings.

                           Order of the Board

1203.21 Final order of the Board.
1203.22 Enforcement of order.

    Authority: 5 U.S.C. 1204(a), 1204(f), and 1204(h).

    Source: 54 FR 23632, June 2, 1989, unless otherwise noted.

                                 General



Sec. 1203.1  Scope; application of part 1201, subpart B.

    (a) General. 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.
    (b) Application of 5 CFR part 1201, subparts B and C. (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.
    (2) The following provisions of 5 CFR part 1201, subparts B and C do 
not apply to proceedings conducted under this part:
    (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
    (ii) Sections 1201.111 through 1201.119 which concern final 
decisions of presiding officials, and petitions for Board review of 
those decisions.

[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]



Sec. 1203.2  Definitions.

    (a) Invalid regulation 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.
    (b) Invalidly implemented regulation 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.
    (c) Merit system principles are the principles stated in 5 U.S.C. 
2301(b)(1) through 2301(b)(9).
    (d) Pleadings 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.
    (e) Prohibited personnel practices are the impermissible actions 
described in 5 U.S.C. 2302(b)(1) through 2302(b)(11).
    (f) Regulation review 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 regulations require any employee to 
commit a prohibited personnel practice.

[[Page 60]]

    (g) Request for regulation review means a request that the Board 
review a regulation issued by OPM.

[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]

                          Procedures for Review



Sec. 1203.11  Request for regulation review.

    (a) An interested person or the Special Counsel may submit a request 
for regulation review.
    (b) Contents of request. (1) Each request for regulation review must 
include the following information:
    (i) The name, address, and signature of the requester's 
representative or, if the requester has no representative, of the 
requester;
    (ii) A citation identifying the regulation being challenged;
    (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 commit a 
prohibited personnel practice;
    (iv) Specific identification of the prohibited personnel practice at 
issue; and
    (v) A description of the action the requester would like the Board 
to take.
    (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:
    (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
    (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.

[54 FR 23632, June 2, 1989, as amended at 65 FR 57939, Sept. 27, 2000]



Sec. 1203.12  Granting or denying the request for regulation review.

    (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.
    (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:
    (1) A citation identifying the regulation being challenged;
    (2) A description of the issues to be addressed;
    (3) The docket number assigned to the proceedings; and
    (4) Instructions covering the review proceedings, including 
information regarding the time limits for filing submissions related to 
the request.

[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]



Sec. 1203.13  Filing pleadings.

    (a) Place to file and number of copies. 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 Sec. 1203.14 of this 
part. The Office of the Clerk will make all pleadings available for 
review by the public.
    (b) Time limits. (1) A request for regulation review may be filed 
any time after the effective date of the regulation.
    (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.
    (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.
    (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

[[Page 61]]

circumstances make consideration of others' views regarding the motion 
impracticable.
    (5) Submissions opposing motions must be filed within five days 
after the opposing party receives the motion.
    (c) Additional pleadings. 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.
    (d) Method and date of filing. An initial filing in a request for 
review of a regulation may be filed with the Office of the Clerk by 
mail, by commercial or personal delivery, or by facsimile. Pleadings, 
other than an initial request for a regulation review under this part, 
may be filed with the Office of the Clerk by mail, by commercial or 
personal delivery, by facsimile, or by e-filing in accordance with Sec. 
1201.14 of this chapter. 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 commercial 
delivery, the date of filing is the date it was delivered to the 
commercial delivery service. If it was submitted by e-filing, it is 
considered to have been filed on the date of electronic submission.
    (e) Extensions of time. The Board will grant a request for extension 
of time only when good cause is shown.

[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 
65 FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, 2003; 69 FR 57631, 
Sept. 27, 2004]



Sec. 1203.14  Serving documents.

    (a) Parties. 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.
    (b) Method of serving documents. Pleadings may be served on parties 
by mail, by personal delivery, by facsimile, or by commercial 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 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 
delivery) by which service was accomplished, and must be signed by the 
person responsible for accomplishing service.
    (c) Electronic filing. Other than the initial request for a 
regulation review, pleadings in a regulation review proceeding may be 
filed with the Board and served upon other parties by electronic filing, 
provided the requirements of Sec. 1201.14 of this chapter are 
satisfied.

[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 
68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]



Sec. 1203.15  Review of regulations on the Board's own motion.

    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 Federal Register.

[54 FR 28658, July 6, 1989]

[[Page 62]]



Sec. 1203.16  Proceedings.

    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:
    (a) Additional written comments;
    (b) Oral argument;
    (c) Evidence presented at a hearing; and/or
    (d) Evidence gathered through any other appropriate procedures that 
are conducted in accordance with law.

                           Order of the Board



Sec. 1203.21  Final order of the Board.

    (a) Invalid regulation. 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.
    (b) Invalidly implemented regulation. 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.
    (c) Corrective action. 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:
    (1) Cancellation of any personnel action related to the prohibited 
personnel practice;
    (2) Rescission of any action related to the cancelled personnel 
action;
    (3) Removal of any reference, record, or document within an 
employee's official personnel folder that is related to the prohibited 
personnel practice;
    (4) Award of back pay and benefits;
    (5) Award of attorney fees;
    (6) Other remedial measures to reverse the effects of a prohibited 
personnel practice; and
    (7) The agency's submission of a verified report of its compliance 
with the Board's order.



Sec. 1203.22  Enforcement of order.

    (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 request 
may be filed in electronic form, provided the requirements of Sec. 
1201.14 are satisfied. The petition must include specific reasons why 
the petitioning party believes that there has been a failure to comply 
with the Board's order.
    (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.
    (c) Where appropriate, the Board may initiate the enforcement 
procedures described in 5 CFR 1201.183(c).

[54 FR 23632, June 2, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69 
FR 57631, Sept. 27, 2004]



PART 1204_AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents

                       Subpart A_Purpose and Scope

Sec.
1204.1 Purpose.
1204.2 Scope.

    Subpart B_Procedures for Obtaining Records Under the Freedom of 
                             Information Act

1204.11 Requests for access to Board records.
1204.12 Fees.
1204.13 Denials.
1204.14 Requests for access to confidential commercial information.
1204.15 Records of other agencies.

                            Subpart C_Appeals

1204.21 Submission.
1204.22 Decision on appeal.

    Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570, Pub. L. 104-231, 
and E.O. 12600.

    Source: 64 FR 51039, Sept. 21, 1999, unless otherwise noted.



                       Subpart A_Purpose and Scope



Sec. 1204.1  Purpose.

    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

[[Page 63]]

from the Board, and by stating the fees that will be charged for that 
information.



Sec. 1204.2  Scope.

    (a) For the purpose of this part, the term record 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.
    (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.
    (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 Sec. 1201.53 of this chapter. 
When someone other than a party to the appeal makes this request, the 
Board will handle the request under this part.
    (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 Federal Register, 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.

[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48885, Aug. 10, 2000]



    Subpart B_Procedures for Obtaining Records Under the Freedom of 
                             Information Act



Sec. 1204.11  Request for access to Board records.

    (a) Sending a request. 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.
    (b) Description. 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.
    (c) Time limits and decisions. 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

[[Page 64]]

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.
    (1) Extension of time. 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:
    (i) To limit the request so that it may be processed within the time 
limit, or
    (ii) To arrange with the Board a different time frame for processing 
the request or a changed request.
    (2) Expedited processing. 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 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.

[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1204.12  Fees.

    (a) General. 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.
    (b) Definitions. (1) The term direct costs 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.
    (2) The term search, 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

[[Page 65]]

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.
    (3) The term duplication 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.
    (4) The term review 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.
    (5) The term commercial use request 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 additional clarification before assigning the request to 
a specific category.
    (6) The term educational institution 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.
    (7) The term noncommercial scientific institution 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.
    (8) The term representative of the news media means any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that concerns current events or that would be of current interest to the 
public.
    (c) Categories of requesters. 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.
    (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).
    (1) When the Board receives a request:
    (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.

[[Page 66]]

    (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.
    (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.
    (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.
    (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.
    (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.
    (e) Fee schedule. (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.
    (2) Fees for computer searches for records will be $5 per quarter 
hour spent by each employee operating the computer equipment and/or 
developing a new inquiry or report.
    (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.
    (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.
    (f) Fee waivers. (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:
    (i) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the government;
    (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;
    (iii) Whether disclosure of the requested information is likely to 
contribute to public understanding of the subject of the disclosure; and
    (iv) The significance of the contribution the disclosure would make 
to public understanding of government operations or activities.
    (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:

[[Page 67]]

    (i) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so,
    (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.
    (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.



Sec. 1204.13  Denials

    (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.
    (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.
    (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 indication 
would harm an interest protected by the exemption under which the 
deletion is made.



Sec. 1204.14  Requests for access to confidential commercial information.

    (a) General. 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.
    (b) Definitions. (1) The term confidential commercial information 
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.
    (2) The term submitter means any person or organization that 
provides confidential commercial information to the government. The term 
submitter includes, but is not limited to, corporations, state 
governments, and foreign governments.
    (c) Notice to business submitters. 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.
    (d) When initial notice is required. (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:
    (i) The information is less than 10 years old; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (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:
    (i) The business submitter has designated the information in good 
faith as commercially or financially sensitive information; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (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

[[Page 68]]

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.
    (e) Opportunity to object to disclosure. 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.
    (f) Notice of intent to release information. 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:
    (1) A statement of the reasons for which the business submitter's 
objections to the release were not sufficient;
    (2) A description of the confidential commercial information to be 
released; and
    (3) A specified release date. 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.
    (g) Notice of Freedom of Information Act lawsuit. 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.
    (h) Exceptions to notice requirements. The notice requirements of 
this section do not apply when:
    (1) The Board decides that the information should not be released;
    (2) The information lawfully has been published or otherwise made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The disclosure is required by an agency rule that:
    (i) Was adopted after notice and public comment;
    (ii) Specifies narrow classes of records submitted to the agency 
that are to be released under the FOIA; or
    (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.
    (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
    (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.



Sec. 1204.15  Records of other agencies.

    Requests for Board records that were created by another agency may, 
in appropriate circumstances, be referred to

[[Page 69]]

that agency for discussion or processing. In these instances, the Board 
will notify the requester.



                            Subpart C_Appeals



Sec. 1204.21  Submission.

    (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:
    (1) A denial of access to agency records;
    (2) A denial of a request for a waiver or reduced fees;
    (3) A decision that it is technically not possible to reproduce 
electronically maintained information in the requester's preferred 
format;
    (4) A denial of a request for expedited processing of information 
under this part; or
    (5) A failure to decide a request for expedited processing within 10 
workdays from the date of the request.
    (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.

[64 FR 51039, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1204.22  Decision on appeal.

    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.



PART 1205_PRIVACY ACT REGULATIONS--Table of Contents

                      Subpart A_General Provisions

Sec.
1205.1 Purpose.
1205.2 Policy and scope.
1205.3 Definitions.
1205.4 Disclosure of Privacy Act records.

               Subpart B_Procedures for Obtaining Records

1205.11 Access to Board records.
1205.12 Time limits and determinations.
1205.13 Identification.
1205.14 Granting access.
1205.15 Denying access.
1205.16 Fees.

                     Subpart C_Amendment of Records

1205.21 Request for amendment.
1205.22 Action on request.
1205.23 Time limits.

                            Subpart D_Appeals

1205.31 Submitting appeal.
1205.32 Decision on appeal.

    Authority: 5 U.S.C. 552a and 1204.

    Source: 64 FR 51043, Sept. 21, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1205.1  Purpose.

    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.



Sec. 1205.2  Policy and scope.

    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.

[[Page 70]]



Sec. 1205.3  Definitions.

    The definitions of 5 U.S.C. 552a apply to this part. In addition, as 
used in this part:
    (a) Inquiry means a request by an individual regarding whether the 
Board has a record that refers to that individual.
    (b) Request for access means a request by an individual to look at 
or copy a record.
    (c) Request for amendment means a request by an individual to change 
the substance of a particular record by addition, deletion, or other 
correction.
    (d) Requester 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.



Sec. 1205.4  Disclosure of Privacy Act records.

    (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.
    (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.



               Subpart B_Procedures for Obtaining Records



Sec. 1205.11  Access to Board records.

    (a) Submission of request. 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., 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.
    (b) Form. Each submission must contain the following information:
    (1) The name, address, and telephone number of the individual to 
whom the record refers;
    (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:
    (i) The birth certificate of the minor child, and
    (ii) The court document appointing the individual legal guardian, or
    (iii) An agreement for representation signed by the individual to 
whom the record refers;
    (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;
    (4) The date of the inquiry or request;
    (5) The inquirer's or requester's signature; and
    (6) A conspicuous indication, both on the envelope and the letter, 
that the inquiry is a ``PRIVACY ACT REQUEST''.
    (c) Identification. Each submission must follow the identification 
requirements stated in Sec. 1205.13 of this part.
    (d) Payment. Records usually will not be released until fees have 
been received.

[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1205.12  Time limits and determinations.

    (a) Board determinations. 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:

[[Page 71]]

    (1) When the Board needs to obtain the records from other Board 
offices or a Federal Records Center;
    (2) When it needs to obtain and examine a large number of records;
    (3) When it needs to consult with another agency that has a 
substantial interest in the records requested; or
    (4) When other extenuating circumstances prevent the Board from 
processing the request within the 20-day period.
    (b) Time extensions. 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.
    (c) Improper request. 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.
    (d) Determining officials. The Clerk of the Board, a Regional 
Director, or a Chief Administrative Judge will make determinations on 
requests.

[64 FR 51043, Sept. 21, 1999; 64 FR 71267, Dec. 21, 1999]



Sec. 1205.13  Identification.

    (a) In person. 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:
    (1) A document showing the requester's photograph;
    (2) A document showing the requester's signature; or
    (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 a 
misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C. 
552a(i)(3).
    (b) By mail. 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.
    (c) Parents of minors, legal guardians, and representatives. 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:
    (1) The minor's birth certificate, and
    (2) The court order of guardianship, or
    (3) The agreement of representation, where appropriate.



Sec. 1205.14  Granting access.

    (a) The Board may allow a requester to inspect records through 
either of the following methods:
    (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
    (2) It may mail copies of the records to the requester.
    (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 
individual s presence.



Sec. 1205.15  Denying access.

    (a) Basis. 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.
    (b) Form. All denials of access under this section will be made in 
writing and will notify the requester of the right to judicial review.



Sec. 1205.16  Fees.

    (a) No fees will be charged except for making copies of records.

[[Page 72]]

    (b) Photocopies of records duplicated by the Board will be subject 
to a charge of 20 cents a page.
    (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.
    (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.
    (1) Audio tapes will be provided at a charge not to exceed $15 for 
each cassette tape.
    (2) Computer printouts will be provided at a charge of 10 cents a 
page.
    (3) Records reproduced on computer tapes, computer diskettes, or 
other electronic media, will be provided at the actual cost to the 
Board.
    (e) The Board will provide one copy of the amended parts of any 
record it amends free of charge as evidence of the amendment.



                     Subpart C_Amendment of Records



Sec. 1205.21  Request for amendment.

    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:
    (a) An identification of the record to be amended;
    (b) A description of the amendment requested; and
    (c) A statement of the basis for the amendment, along with 
supporting documentation, if any.

[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1205.22  Action on request.

    (a) Amendment granted. If the Board grants the request for 
amendment, it will notify the requester and provide him or her with a 
copy of the amendment.
    (b) Amendment denied. 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:
    (1) The basis for the denial; and
    (2) The procedures for appealing the denial.



Sec. 1205.23  Time limits.

    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 
Sec. 1205.12 of this part.



                            Subpart D_Appeals



Sec. 1205.31  Submitting appeal.

    (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.
    (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:
    (1) A copy of the original request for amendment of the record;
    (2) A copy of the denial; and
    (3) A statement of the reasons why the original denial should be 
overruled.

[64 FR 51043, Sept. 21, 1999, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1205.32  Decision on appeal.

    (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

[[Page 73]]

Chairman receives the appeal and the necessary information.
    (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.
    (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:
    (1) The basis for the denial;
    (2) The right to judicial review of the decision under 5 U.S.C. 
552a(g)(1)(A); and
    (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.



PART 1206_OPEN MEETINGS--Table of Contents

                      Subpart A_Purpose and Policy

Sec.
1206.1 Purpose.
1206.2 Policy.
1206.3 Definitions.

                          Subpart B_Procedures

1206.4 Notice of meeting.
1206.5 Change in meeting plans after notice.
1206.6 Decision to close meeting.
1206.7 Record of meetings.
1206.8 Providing information to the public.
1206.9 Procedures for expedited closing of meetings.

                      Subpart C_Conduct of Meetings

1206.11 Meeting place.
1206.12 Role of observers.

    Authority: 5 U.S.C. 552b.

    Source: 54 FR 20367, May 11, 1989, unless otherwise noted.



                      Subpart A_Purpose and Policy



Sec. 1206.1  Purpose.

    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'').



Sec. 1206.2  Policy.

    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.



Sec. 1206.3  Definitions.

    The following definitions apply to this part:
    (a) Meeting means deliberations of at least two Board members that 
determine or result in the joint conduct of official Board business.
    (b) Member means one of the members of the Merit Systems Protection 
Board.



                          Subpart B_Procedures



Sec. 1206.4  Notice of meeting.

    (a) Notice of a Board meeting will be published in the Federal 
Register at least one week before the meeting. Each notice will include 
the following information:
    (1) The time of the meeting;
    (2) The place where the meeting will be held;
    (3) The subject and agenda of the meeting;
    (4) Whether the meeting is to be open to the public or closed; and
    (5) The name and telephone number of a Board official responsible 
for receiving inquiries regarding the meeting.
    (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.



Sec. 1206.5  Change in meeting plans after notice.

    (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.
    (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

[[Page 74]]

will be open to the public or closed unless both of the following 
conditions are met:
    (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
    (2) Notice of the change, and of the individual Board members' vote, 
is published in the Federal Register at the earliest practicable time.



Sec. 1206.6  Decision to close meeting.

    (a) Basis. 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.
    (b) General Counsel certification. 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.
    (c) Vote. 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.



Sec. 1206.7  Record of meetings.

    (a) Closed Meeting. When the Board has decided to close a meeting in 
whole or in part, it will maintain the following record:
    (1) A transcript or recording of the proceeding;
    (2) A copy of the General Counsel's certification under Sec. 
1206.6(b) of this part;
    (3) A statement from the presiding official specifying the time and 
place of the meeting and naming the persons present; and
    (4) A record (which may be part of the transcript) of all votes and 
all documents considered at the meeting.
    (b) Open meeting. 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.

[54 FR 20367, May 11, 1989, as amended at 54 FR 28664, July 6, 1989]



Sec. 1206.8  Providing information to the public.

    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.

[54 FR 20367, May 11, 1989, as amended at 65 FR 48886, Aug. 10, 2000]



Sec. 1206.9  Procedures for expedited closing of meetings.

    Instead of following the procedures described in Sec. Sec. 1206.4 
through 1206.8 of this part, and in Sec. Sec. 1206.11 and 1206.12, the 
Board may expedite the closing of its meetings under the following 
conditions by using the following procedures:
    (a) Finding. (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).
    (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

[[Page 75]]

brought by the Special Counsel under 5 CFR 1201.129.
    (b) Announcement. 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.
    (c) Procedure for closing meetings under this section. 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 Sec. 1206.6(b) of 
this part.
    (d) Record Availability. 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:
    (1) A written record reflecting the vote of each participating 
member of the Board with respect to closing the meeting; and
    (2) The General Counsel certification under Sec. 1206.6(b).



                      Subpart C_Conduct of Meetings



Sec. 1206.11  Meeting place.

    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.



Sec. 1206.12  Role of observers.

    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 meeting room when they are asked to do 
so.



PART 1207_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY 

IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD--Table of Contents

Sec.
1207.101 Purpose.
1207.102 Application.
1207.103 Definitions.
1207.104-1207.109 [Reserved]
1207.110 Notice.
1207.111-1207.119 [Reserved]
1207.120 General prohibitions against discrimination.
1207.121-1207.129 [Reserved]
1207.130 Employment.
1207.131-1207.139 [Reserved]
1207.140 Program accessibility: Discrimination prohibited.
1207.141-1207.149 [Reserved]
1207.150 Program accessibility: Existing facilities.
1207.151 Program accessibility: New construction and alterations.
1207.152-1207.159 [Reserved]
1207.160 Communications.
1207.161-1207.169 [Reserved]
1207.170 Compliance procedures.
1207.171-1207.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 70 FR 24293, May 9, 2005, unless otherwise noted.



Sec. 1207.101  Purpose.

    The purpose of this part 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 disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.



Sec. 1207.102  Application.

    This part 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 disabilities in the United 
States.



Sec. 1207.103  Definitions.

    (a) Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.

[[Page 76]]

    (b) Auxiliary aids 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 (TDDs), interpreters, notetakers, written 
materials, and other similar services and devices.
    (c) Complete complaint 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.
    (d) Days means calendar days, unless otherwise stated.
    (e) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (f) Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    (g) Historic properties 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.
    (h) Individual with a disability 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. The following phrases used in this definition are 
further defined as follows:
    (1) Physical or mental impairment includes--
    (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
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (iii) Also, physical and mental impairment includes, but is not 
limited to, such diseases and conditions as orthopedic, visual, speech, 
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addiction and alcoholism.
    (2) Major life activities include functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (i) of this 
definition but is treated by the agency as having such an impairment.
    (i) Qualified individual with a disability means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who meets

[[Page 77]]

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;
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (3) Qualified disabled person as that term is defined for purposes 
of employment in 29 CFR 1614.203, which is made applicable to this part 
by Sec. 1207.130.
    (j) Section 504 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 part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Sec. Sec. 1207.104-1207.109  [Reserved]



Sec. 1207.110  Notice.

    The agency shall make available to employees, applicants, 
participants, and other interested parties such information regarding 
the provisions of this part 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 part.



Sec. Sec. 1207.111-1207.119  [Reserved]



Sec. 1207.120  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
such disability, 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.
    (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 disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A qualified individual with a disability may not be excluded 
from participation in any of the agency's programs or activities, even 
though permissibly separate or different programs or activities exist.
    (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--
    (i) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with disabilities.

[[Page 78]]

    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the agency, or;
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
agency establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by the 
agency are not, themselves, covered by this part.
    (c) The exclusion of nondisabled persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with disabilities or the exclusion of a specific class of individuals 
with disabilities from a program limited by Federal statute or Executive 
order to a different class of individuals with disabilities is not 
prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.



Sec. Sec. 1207.121-1207.129  [Reserved]



Sec. 1207.130  Employment.

    No qualified individual with a disability shall, on the basis of 
such disability, 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 1614, shall apply to employment in federally 
conducted programs or activities.



Sec. Sec. 1207.131-1207.139  [Reserved]



Sec. 1207.140  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1207.150, no qualified 
individual with disabilities shall, because the agency's facilities are 
inaccessible to or unusable by individuals with disabilities, 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.



Sec. Sec. 1207.141-1207.149  [Reserved]



Sec. 1207.150  Program accessibility: Existing facilities.

    (a) General. 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 disabilities. This 
paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (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
    (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 Sec. 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

[[Page 79]]

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 disabilities receive the 
benefits and services of the program or activity.
    (b) Methods--(1) General. 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, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with disabilities. 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 disabilities in the most integrated setting 
appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1207.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of Sec. 1207.150(a)(2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with disabilities into 
or through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.



Sec. 1207.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities. 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.



Sec. Sec. 1207.152-1207.159  [Reserved]



Sec. 1207.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a disability an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with parties by telephone, 
telecommunication devices for deaf persons or equally effective 
telecommunication systems shall be used to communicate with persons with 
impaired hearing.
    (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.

[[Page 80]]

    (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.
    (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 Sec. 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 disabilities receive the benefits and 
services of the program or activity.



Sec. Sec. 1207.161-1207.169  [Reserved]



Sec. 1207.170  Compliance procedures.

    (a) 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 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (b) Allegations of discrimination in the adjudication of a Board 
case. (1) When a party to a case pending before any of the Board's 
judges believes he or she has been subjected to discrimination on the 
basis of disability in the adjudication of the case, the party may raise 
the allegation in a pleading filed with the judge and served on all 
other parties in accordance with 5 CFR 1201.26(b)(2).
    (2) An allegation of discrimination in the adjudication of a Board 
case must be raised within 10 days of the alleged act of discrimination 
or within 10 days from the date the complainant should reasonably have 
known of the alleged discrimination. If the complainant does not submit 
a complaint within that time period, it will be dismissed as untimely 
filed unless a good reason for the delay is shown. The pleading must be 
clearly marked ``5 CFR part 1207 allegation of discrimination in the 
adjudication of a Board case.''
    (3) The judge to whom the case is assigned shall decide the merits 
of any timely allegation that is raised at this stage of adjudication, 
and shall make findings and conclusions regarding the allegation either 
in an interim order or in the initial decision, recommended decision, or 
recommendation. Any request for reconsideration of the administrative 
judge's decision on the disability discrimination claim must be filed in 
accordance with the requirements of 5 CFR 1201.114 and 1201.115.
    (4) If the judge to whom the case was assigned has issued the 
initial decision, recommended decision, or recommendation by the time 
the party learns of the alleged discrimination, the party may raise the 
allegation in a petition for review, cross petition for review, or 
response to the petition or cross petition. The petition for review, 
cross petition for review or response to the petition or cross petition 
must be clearly marked ``5 CFR part 1207 allegation of discrimination in 
the adjudication of a Board case.''
    (5) The Board shall decide the merits of any timely allegation that 
is raised at this stage of adjudication in a final decision.
    (c) All complaints of discrimination on the basis of disability in 
programs and activities conducted by the agency, except for those 
described in paragraphs (a) and (b) of this section, shall be filed 
under the procedures described in this paragraph.
    (1) Who may file. Any person who believes that he or she has been 
subjected

[[Page 81]]

to discrimination prohibited by this part, or authorized representative 
of such person, may file a complaint. Any person who believes that any 
specific class of persons has been subjected to discrimination 
prohibited by this part and who is a member of that class or the 
authorized representative of a member of that class may file a 
complaint. A charge on behalf of a person or member of a class of 
persons claiming to be aggrieved may be made by any person, agency or 
organization.
    (2) Where and when to file. Complaints shall be filed with the 
Director, Office of Equal Employment Opportunity (EEO Director), Merit 
Systems Protection Board, 1615 M Street, NW., Washington DC 20419, or e-
mailed to equalopportunity@mspb.gov, within thirty-five (35) calendar 
days of the alleged act of discrimination. A complaint filed by personal 
delivery is considered filed on the date it is received by the EEO 
Director. The date of filing by facsimile or e-mail is the date the 
facsimile or e-mail is sent. 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. The agency shall 
extend the time period for filing a complaint upon a showing of good 
cause. For example, the agency shall extend this time limit if a 
complainant shows that he or she was prevented by circumstances beyond 
his or her control from submitting the matter within the time limits.
    (3) Acceptance of complaint. (i) The agency shall accept a complete 
complaint that is filed in accordance with paragraph (c) of this section 
and over which it has jurisdiction. The EEO Director shall notify the 
complainant of receipt and acceptance of the complaint.
    (ii) If the EEO Director receives a complaint that is not complete, 
he or she shall notify the complainant that additional information is 
needed. If the complainant fails to complete the complaint and return it 
to the EEO Director within 15 days of his or her receipt of the request 
for additional information, the EEO Director shall dismiss the complaint 
with prejudice and shall so inform the complainant.
    (4) Within 60 days of the receipt of a complete complaint for which 
it has jurisdiction, the EEO Director shall notify the complainant of 
the results of the investigation in an initial decision containing--
    (i) Findings of fact and conclusions of law;
    (ii) When applicable, a description of a remedy for each violation 
found; and
    (iii) A notice of the right to appeal.
    (5) Any appeal of the EEO Director's initial decision must be filed 
with the Chairman of the Board, Merit Systems Protection Board, 1615 M 
Street, NW., Washington, DC 20419 by the complainant within 35 days of 
the date the EEO Director issues the decision required by Sec. 
1207.170(c)(4). The agency may extend this time for good cause when a 
complainant shows that circumstances beyond his or her control prevented 
the filing of an appeal within the prescribed time limit. An appeal 
filed by personal delivery is considered filed on the date it is 
received by the Chairman. 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. The appeal should be clearly 
marked ``Appeal of Section 504 Decision'' and must contain specific 
objections explaining why the person believes the initial decision was 
factually or legally wrong. A copy of the initial decision being 
appealed should be attached to the appeal letter.
    (6) A timely appeal shall be decided by the Chairman unless the 
Chairman determines, in his or her discretion, that the appeal raises 
policy issues and that the nature of those policy issues warrants a 
decision by the full Board. The full Board shall then decide such 
appeals.

[[Page 82]]

    (7) The Chairman shall notify the complainant of the results of the 
appeal within sixty (60) days of the receipt of the request. If the 
Chairman determines that he or she needs additional information from the 
complainant, he or she shall have sixty (60) days from the date he or 
she receives the additional information to make his or her determination 
on the appeal.
    (8) The time limit stated in paragraph (c)(2) may be extended by the 
EEO Director to a period of up to 180 days, and may be extended further 
with the permission of the Assistant Attorney General. The time limit 
stated in paragraph (c)(5) may be extended by the Chairman to a period 
of up to 180 days, and may be extended further with the permission of 
the Assistant Attorney General.
    (9) 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.
    (d) 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 disabilities.
    (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 entity.

[70 FR 24293, May 9, 2005, as amended at 73 FR 6834, Feb. 6, 2008]



Sec. Sec. 1207.171-1207.999  [Reserved]



PART 1208_PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED 

SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS 
EMPLOYMENT OPPORTUNITIES ACT--Table of Contents

                 Subpart A_Jurisdiction and Definitions

Sec.
1208.1 Scope.
1208.2 Jurisdiction.
1208.3 Application of 5 CFR part 1201.
1208.4 Definitions.

                        Subpart B_USERRA Appeals

1208.11 Choice of procedure under USERRA; exhaustion requirement.
1208.12 Time of filing.
1208.13 Content of appeal; request for hearing.
1208.14 Representation by Special Counsel.
1208.15 Remedies.
1208.16 Appeals under another law, rule, or regulation.

                         Subpart C_VEOA Appeals

1208.21 VEOA exhaustion requirement.
1208.22 Time of filing.
1208.23 Content of appeal; request for hearing.
1208.24 Election to terminate MSPB proceeding.
1208.25 Remedies.
1208.26 Appeals under another law, rule, or regulation.

    Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.

    Source: 65 FR 5412, Feb. 4, 2000, unless otherwise noted.



                 Subpart A_Jurisdiction and Definitions



Sec. 1208.1  Scope.

    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.



Sec. 1208.2  Jurisdiction.

    (a) USERRA. 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

[[Page 83]]

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 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.
    (b) VEOA. 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.



Sec. 1208.3  Application of 5 CFR part 1201.

    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 Compensatory Damages) of 5 CFR part 1201 
regarding awards of attorney fees to appeals governed by this part.



Sec. 1208.4  Definitions.

    (a) Appeal. ``Appeal'' means a request for review of an agency 
action (the same meaning as in 5 CFR Sec. 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).
    (b) Preference eligible. ``Preference eligible'' is defined in 5 
U.S.C. 2108.
    (c) USERRA appeal. ``USERRA appeal'' means an appeal filed under 38 
U.S.C. 4324, as enacted by the Uniformed Services Employment 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.
    (d) VEOA appeal. ``VEOA appeal'' means an appeal filed under 5 
U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act of 
1998 (Public Law 105-339).



                        Subpart B_USERRA Appeals



Sec. 1208.11  Choice of procedure under USERRA; exhaustion requirement.

    (a) Choice of procedure. An appellant may file a USERRA appeal 
directly with the Board under this subpart or may file a complaint with 
the Secretary of Labor under 38 U.S.C. 4322.
    (b) Exhaustion requirement. 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.
    (c) Appeals after exhaustion of Department of Labor procedure. 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

[[Page 84]]

file a USERRA appeal directly with the Board.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]



Sec. 1208.12  Time of filing.

    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 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.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]



Sec. 1208.13  Content of appeal; request for hearing.

    (a) Content. A USERRA appeal may be in any format, including letter 
form, but must contain the following:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24(a)(1) through (a)(9);
    (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;
    (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.
    (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
    (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).
    (b) Request for hearing. 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)).
    (c) Electronic filing. An appeal may be filed electronically by 
using the Board's e-Appeal site (https://e-appeal.mspb.gov) in 
accordance with Sec. 1201.14 of this chapter.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68 
FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]



Sec. 1208.14  Representation by Special Counsel.

    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). The 
designation of representative may be filed by electronic filing, 
provided the requirements of Sec. 1201.14 of this chapter are 
satisfied.

[69 FR 57631, Sept. 27, 2004]



Sec. 1208.15  Remedies.

    (a) Order for compliance. If the Board determines that a Federal 
agency employer or the Office of Personnel
    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

[[Page 85]]

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 Personnel Management, 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.
    (b) Attorney fees and expenses. 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.



Sec. 1208.16  Appeals under another law, rule, or regulation.

    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)).



                         Subpart C_VEOA Appeals



Sec. 1208.21  VEOA exhaustion requirement.

    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.



Sec. 1208.22  Time of filing.

    (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.
    (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.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]



Sec. 1208.23  Content of appeal; request for hearing.

    (a) Content. A VEOA appeal may be in any format, including letter 
form, but must contain the following:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24(a)(1) through (a)(9);
    (2) Evidence or argument that the appellant is a preference 
eligible;
    (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;
    (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
    (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
    (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).
    (b) Request for hearing. 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

[[Page 86]]

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)).
    (c) Electronic filing. An appeal may be filed electronically by 
using the Board's e-Appeal site (https://e-appeal.mspb.gov) in 
accordance with Sec. 1201.14 of this chapter.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68 
FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]



Sec. 1208.24  Election to terminate MSPB proceeding.

    (a) Election to terminate. 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 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 United States 
district court. Such election must be in writing, signed, 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. The election may 
be filed by electronic filing, provided the requirements of Sec. 
1201.14 of this chapter are satisfied.
    (b) Termination order. 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.

[65 FR 5412, Feb. 4, 2000, as amended at 68 FR 59865, Oct. 20, 2003; 69 
FR 57631, Sept. 27, 2004]



Sec. 1208.25  Remedies.

    (a) Order for compliance. 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.
    (b) Attorney fees and expenses. 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.



Sec. 1208.26  Appeals under another law, rule, or regulation.

    (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)).
    (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).



PART 1209_PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL

ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING--Table of Contents

                 Subpart A_Jurisdiction and Definitions

Sec.
1209.1 Scope.

[[Page 87]]

1209.2 Jurisdiction.
1209.3 Application of 5 CFR part 1201.
1209.4 Definitions.

                            Subpart B_Appeals

1209.5 Time of filing.
1209.6 Content of appeal; right to hearing.
1209.7 Burden and degree of proof.

                         Subpart C_Stay Requests

1209.8 Filing a request for a stay.
1209.9 Content of stay request and response.
1209.10 Hearing and order ruling on stay request.
1209.11 Duration of stay; interim compliance.

             Subpart D_Reports on Applications for Transfers

1209.12 Filing of agency reports.

               Subpart E_Referrals to the Special Counsel

1209.13 Referral of findings to the Special Counsel.

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

    Source: 55 FR 28592, July 12, 1990, unless otherwise noted.



                 Subpart A_Jurisdiction and Definitions



Sec. 1209.1  Scope.

    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.



Sec. 1209.2  Jurisdiction.

    (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.
    (b) The Board exercises jurisdiction over:
    (1) Individual right of action appeals. These are authorized by 5 
U.S.C. 1221(a) with respect to personnel actions listed in Sec. 
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.

    Example: 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.

    (2) Otherwise appealable action appeals. 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).)

    Example: 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.

    (3) Stays. 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.

[[Page 88]]



Sec. 1209.3  Application of 5 CFR part 1201.

    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.

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]



Sec. 1209.4  Definitions.

    (a) Personnel action means, as to individuals and agencies covered 
by 5 U.S.C. 2302:
    (1) An appointment;
    (2) A promotion;
    (3) An adverse action under chapter 75 of title 5, United States 
Code or other disciplinary or corrective action;
    (4) A detail, transfer, or reassignment;
    (5) A reinstatement;
    (6) A restoration;
    (7) A reemployment;
    (8) A performance evaluation under chapter 43 of title 5, United 
States Code;
    (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;
    (10) A decision to order psychiatric testing or examination; or
    (11) Any other significant change in duties, responsibilities, or 
working conditions.
    (b) Whistleblowing 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.
    (c) Contributing factor 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.
    (d) Clear and convincing evidence 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).

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]



                            Subpart B_Appeals



Sec. 1209.5  Time of filing.

    (a) Individual right of action appeals. 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:
    (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,
    (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.
    (b) Otherwise appealable action appeals. 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

[[Page 89]]

to the Board, the time limit for filing is governed by 5 CFR 1201.22(b).
    (c) Appeals after a stay request. 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.

[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 
62 FR 59993, Nov. 6, 1997]



Sec. 1209.6  Content of appeal; right to hearing.

    (a) Content. 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:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24 (a)(1) through (a)(9);
    (2) Where the appellant first sought corrective action from the 
Special Counsel, evidence that the appeal is timely filed;
    (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);
    (4) A description of each disclosure evidencing whistleblowing as 
defined in Sec. 1209.4(b) of this part; and
    (5) Evidence or argument that:
    (i) The appellant was or will be subject to a personnel action as 
defined in Sec. 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
    (ii) The personnel action was or will be based wholly or in part on 
the whistleblowing disclosure, as described in Sec. 1209.4(b) of this 
part.
    (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 Part 2: Reprisal For 
Whistleblowing of the complaint form submitted to the Office of Special 
Counsel (Form OSC-11, Complaint of Possible Prohibited Personnel 
Practice or Other Prohibited Activity, 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.
    (b) Right to hearing. An appellant has a right to a hearing.
    (c) Timely request. 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.
    (d) Electronic filing. An appeal may be filed electronically by 
using the Board's e-Appeal site (https://e-appeal.mspb.gov) in 
accordance with Sec. 1201.14 of this chapter.

[55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000; 
68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]



Sec. 1209.7  Burden and degree of proof.

    (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.
    (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.



                         Subpart C_Stay Requests



Sec. 1209.8  Filing a request for a stay.

    (a) Time of filing. 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

[[Page 90]]

under Sec. 1209.5 of this part, but no later than the time limit set 
for the close of discovery in the appeal. The request may be filed prior 
to, simultaneous with, or after the filing of an appeal.
    (b) Place of filing. Requests must be filed with the appropriate 
Board regional or field office as set forth in 5 CFR 1201.4(d).
    (c) Service of stay request. 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.
    (d) Method of filing. A stay request must be filed with the 
appropriate Board regional or field office by mail, by facsimile, by 
commercial or personal delivery, or by electronic filing in accordance 
with Sec. 1201.14 of this chapter.

[55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 
FR 65243, Dec. 19, 1994; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 
27, 2004]



Sec. 1209.9  Content of stay request and response.

    (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 may be in any format, and must contain the following:
    (1) The name, address, and telephone number of the appellant, and 
the name and address of the acting agency;
    (2) The name, address, and telephone number of the appellant's 
representative, if any;
    (3) The signature of the appellant or, if the appellant has a 
representative, of the representative;
    (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;
    (5) Where the appellant first sought corrective action from the 
Special Counsel, evidence that the stay request is timely filed;
    (6) Evidence and/or argument showing that:
    (i) The action threatened, proposed, taken, or not taken is a 
personnel action, as defined in Sec. 1209.4(a) of this part;
    (ii) The action complained of was based on whistleblowing, as 
defined in Sec. 1209.4(b) of this part; and
    (iii) There is a substantial likelihood that the appellant will 
prevail on the merits of the appeal;
    (7) Evidence and/or argument addressing how long the stay should 
remain in effect; and
    (8) Any documentary evidence that supports the stay request.
    (b) An appellant may provide evidence and/or argument addressing the 
question of whether a stay would impose extreme hardship on the agency.
    (c) Agency response. (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.
    (2) The agency's response must contain the following:
    (i) Evidence and/or argument addressing whether there is a 
substantial likelihood that the appellant will prevail on the merits of 
the appeal;
    (ii) Evidence and/or argument addressing whether the grant of a stay 
would result in extreme hardship to the agency; and
    (iii) Any documentation relevant to the agency's position on these 
issues.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]



Sec. 1209.10  Hearing and order ruling on stay request.

    (a) Hearing. The judge may hold a hearing on the stay request.
    (b) Order ruling on stay request. (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.
    (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.

[[Page 91]]

    (3) If the judge grants a stay, the order must specify the effective 
date and duration of the stay.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]



Sec. 1209.11  Duration of stay; interim compliance.

    (a) Duration of stay. 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.
    (b) Interim compliance. 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.



             Subpart D_Reports on Applications for Transfers



Sec. 1209.12  Filing of agency reports.

    When an employee who has applied for a transfer to another position 
in an Executive agency under 5 U.S.C. 3352 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.



               Subpart E_Referrals to the Special Counsel



Sec. 1209.13  Referral of findings to the Special Counsel.

    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.

[62 FR 17048, Apr. 9, 1997]

                       PARTS 1210	1214 [RESERVED]



PART 1215_DEBT MANAGEMENT--Table of Contents

                         Subpart A_Salary Offset

Sec.
1215.1 Purpose and scope.
1215.2 Definitions.
1215.3 Applicability.
1215.4 Notice requirements.
1215.5 Hearing.
1215.6 Written decision.
1215.7 Coordinating offset with another Federal agency.
1215.8 Procedures for salary offset.
1215.9 Refunds.
1215.10 Statute of limitations.
1215.11 Nonwaiver of rights.
1215.12 Interest, penalties, and administrative costs.

                       Subpart B_Claims Collection

1215.21 Purpose and scope.
1215.22 Definitions.
1215.23 Other remedies.
1215.24 Claims involving criminal activity or misconduct.
1215.25 Collection.
1215.26 Notices to debtor.
1215.27 Interest, penalties, and administrative costs.
1215.28 Administrative offset.
1215.29 Use of credit reporting agencies.
1215.30 Collection services.
1215.31 Referral to the Department of Justice or the General Accounting 
          Office.
1215.32 Compromise, suspension and termination.
1215.33 Omissions not a defense.

    Source: 54 FR 50603, Dec. 8, 1989. Redesignated at 72 FR 56885, Oct. 
5, 2007.



                         Subpart A_Salary Offset

    Authority: 5 U.S.C. 5514, Executive Order 11809 (redesignated 
Executive Order 12107), and 5 CFR 550 subpart K.



Sec. 1215.1  Purpose and scope.

    (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

[[Page 92]]

recovery from his/her current pay account.
    (b) This regulation does not apply to debts or claims arising under:
    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et 
seq.;
    (2) The Social Security Act, 42 U.S.C. 301 et seq.;
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute.
    (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.
    (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 et seq. 4 
CFR parts 101 through 105; 5 CFR part 1215.
    (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 
pursuant to other statutory provisions applicable to the particular debt 
being collected.
    (f) Matters not addressed in these regulations should be reviewed in 
accordance with the Federal Claims Collection Standards at 4 CFR 101.1 
et seq.



Sec. 1215.2  Definitions.

    (a) Agency. 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.
    (b) Chairman. The Chairman of the MSPB or the Chairman's designee.
    (c) Creditor agency. The agency to which the debt is owed.
    (d) Debt. 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.
    (e) Disposable pay. 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.
    (f) Hearing official. 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.
    (g) Paying Agency. The agency that employs the individual who owes 
the debt and authorizes the payment of his/her current pay.
    (h) Salary offset. 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.



Sec. 1215.3  Applicability.

    (a) These regulations are to be followed when:
    (1) The MSPB is owed a debt by an individual currently employed by 
another Federal agency;
    (2) The MSPB is owed a debt by an individual who is a current 
employee of the MSPB; or
    (3) The MSPB employs an individual who owes a debt to another 
Federal agency.

[[Page 93]]



Sec. 1215.4  Notice requirements.

    (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.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature, and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency proposed beginning date, and duration of 
the intended deduction(s);
    (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 et seq.;
    (5) The employee's right to inspect, request, or receive a copy of 
government records relating to the debt;
    (6) The opportunity to establish a written schedule for the 
voluntary repayment of the debt;
    (7) The right to a hearing conducted by an impartial hearing 
official;
    (8) The methods and time period for petitioning for hearings;
    (9) A statement that the timely filing of a petition for a hearing 
will stay the commencement of collection proceedings;
    (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 employee requests and the hearing official grants a 
delay in the proceedings;
    (11) A statement that knowingly false or frivolous statements, 
representations, or evidence may subject the employee to appropriate 
disciplinary procedures;
    (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
    (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.



Sec. 1215.5  Hearing.

    (a) Request for hearing. (1) An employee must file a petition for a 
hearing in accordance with the instructions outlined in the agency's 
notice to offset.
    (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.
    (b) Hearing procedures. (1) The hearing will be presided over by an 
impartial hearing official.
    (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.



Sec. 1215.6  Written decision.

    (a) The hearing official shall issue a written opinion no later than 
60 days after the hearing.
    (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.



Sec. 1215.7  Coordinating offset with another Federal agency.

    (a) The MSPB as the creditor agency. (1) When the Chairman 
determines that an employee of a Federal agency owes a delinquent debt 
to the MSPB, the Chairman shall as appropriate:
    (i) Arrange for a hearing upon the proper petitioning by the 
employee;
    (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

[[Page 94]]

salary offset have been approved by the Office of Personnel Management;
    (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;
    (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;
    (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
    (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.
    (b) MSPB as the paying agency. (1) Upon receipt of a properly 
certified 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.
    (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.



Sec. 1215.8  Procedures for salary offset.

    (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 Sec. 1215.4. 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.
    (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.
    (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.
    (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.



Sec. 1215.9  Refunds.

    (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.
    (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.
    (c) Unless required by law, refunds under this subsection shall not 
bear interest.

[[Page 95]]



Sec. 1215.10  Statute of limitations.

    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.



Sec. 1215.11  Nonwaiver of rights.

    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.



Sec. 1215.12  Interest, penalties, and administrative costs.

    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.



                       Subpart B_Claims Collection

    Authority: 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.



Sec. 1215.21  Purpose and scope.

    This part prescribes standards and procedures for officers and 
employees of the MSPB who are responsible for the collection and 
disposition of debts 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.



Sec. 1215.22  Definitions.

    (a) Claim or debt. 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 Sec. 1215.26) or if the debtor 
fails to satisfy his or her obligation under a repayment agreement.
    (b) Debtor. 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.
    (c) MSPB. The Merit Systems Protection Board.
    (d) Administrative offset. Satisfying a debt by withholding money 
payable by the United States to or held by the United States for a 
debtor.



Sec. 1215.23  Other remedies.

    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.



Sec. 1215.24  Claims involving criminal activity or misconduct.

    (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.
    (b) Debts involving fraud, false claims, or misrepresentation shall 
not be compromised, terminated, suspended, or otherwise disposed of 
under

[[Page 96]]

this rule. Only the Department of Justice is authorized to compromise, 
terminate, suspend, or otherwise dispose of such debts.



Sec. 1215.25  Collection.

    (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.
    (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.



Sec. 1215.26  Notices to debtor.

    The first written demand for payment must inform the debtor of the 
following:
    (a) The amount and nature of the debt;
    (b) The date payment is due, which will generally be 30 days from 
the date the notice was mailed;
    (c) The assessment of interest under Sec. 1215.27 from the date the 
notice was mailed if payment is not received within the 30 days;
    (d) The right to dispute the debt;
    (e) The office, address and telephone number that the debtor should 
contact to discuss repayment and reconsideration of the debt; and
    (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.



Sec. 1215.27  Interest, penalties, and administrative costs.

    (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 Federal 
Register and the Treasury Financial Manual Bulletins.
    (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.
    (c) The MSPB shall charge debtors for administrative costs incurred 
in handling overdue debts.
    (d) Interest will not be charged on administrative costs.
    (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.
    (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.



Sec. 1215.28  Administrative offset.

    (a) The MSPB may collect debts owed by administrative offset if:
    (1) The debt is certain in amount;

[[Page 97]]

    (2) Efforts to obtain direct payment have been, or would most likely 
be unsuccessful, or the MSPB and the debtor agree to the offset;
    (3) Offset is cost effective or has significant deterrent value; and
    (4) Offset is best suited to further and protect the Government's 
interest.
    (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;
    (c) Prior to initiating administrative offset, the MSPB will send 
the debtor written notice of the following:
    (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;
    (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
    (3) The applicable interest.
    (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:
    (1) Failure of offset would substantially prejudice the Government's 
ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit completion of those procedures.



Sec. 1215.29  Use of credit reporting agencies.

    (a) The MSPB may report delinquent accounts to credit reporting 
agencies consistent with the notice requirements contained in the Sec. 
1215.26. 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.
    (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.



Sec. 1215.30  Collection services.

    (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.
    (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.
    (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.



Sec. 1215.31  Referral to the Department of Justice or the General Accounting Office.

    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.



Sec. 1215.32  Compromise, suspension and termination.

    (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

[[Page 98]]

writing off outstanding accounts are available to the public.
    (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.
    (c) The Chairman of the MSPB will refer to the General Accounting 
Office (GAO) debts arising from GAO audit exceptions.



Sec. 1215.33  Omissions not a defense.

    Failure to comply with any provisions of this rule may not serve as 
a defense to any debtor.



PART 1216_TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS--Table of Contents

                      Subpart A_General Provisions

Sec.
1216.101 Scope and purpose.
1216.102 Applicability.
1216.103 Definitions.

 Subpart B_Demands or Requests for Testimony and Production of Documents

1216.201 General prohibition.
1216.202 Factors the MSPB will consider.
1216.203 Filing requirements for litigants seeking documents or 
          testimony.
1216.204 Service of requests or demands.
1216.205 Processing requests or demands.
1216.206 Final determination.
1216.207 Restrictions that apply to testimony.
1216.208 Restrictions that apply to released records.
1216.209 Procedure when a decision is not made prior to the time a 
          response is required.
1216.210 Procedure in the event of an adverse ruling.

                       Subpart C_Schedule of Fees

1216.301 Fees.

                          Subpart D_Penalties.

1216.401 Penalties.

    Authority: 5 U.S.C. 1204(h); 31 U.S.C. 9701.

    Source: 71 FR 17967, Apr. 10, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1216.101  Scope and purpose.

    (a) This part establishes policy, assigns responsibilities and 
prescribes procedures with respect to:
    (1) The production or disclosure of official information or records 
by MSPB employees, advisors, and consultants; and
    (2) The testimony of current and former MSPB employees, advisors, 
and consultants relating to official information, official duties, or 
the MSPB's record, in connection with federal or state litigation in 
which the MSPB is not a party.
    (b) The MSPB intends this part to:
    (1) Conserve the time of MSPB employees for conducting official 
business;
    (2) Minimize the involvement of MSPB employees in issues unrelated 
to MSPB's mission;
    (3) Maintain the impartiality of MSPB employees in disputes between 
private litigants; and
    (4) Protect sensitive, confidential information and the deliberative 
processes of the MSPB.
    (c) In providing for these requirements, the MSPB does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of MSPB. 
It does not create any right or benefit, substantive or procedural, that 
a party may rely upon in any legal proceeding against the United States.



Sec. 1216.102  Applicability.

    This part applies to demands and requests to current and former 
employees, advisors, and consultants for factual or expert testimony 
relating to official information or official duties or for production of 
official records or information, in legal proceedings in which the MSPB 
is not a named party. This part does not apply to:
    (a) Demands upon or requests for an MSPB employee to testify as to 
facts or events that are unrelated to his or her official duties or that 
are unrelated to the functions of the MSPB;
    (b) Demands upon or requests for a former MSPB employee to testify 
as to matters in which the former employee

[[Page 99]]

was not directly or materially involved while at the MSPB;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
    (d) Congressional demands and requests for testimony, records or 
information.



Sec. 1216.103  Definitions.

    The following definitions apply to this part.
    (a) Demand means an order, subpoena, or other command of a court or 
other competent authority for the production, disclosure, or release of 
records or for the appearance and testimony of an MSPB employee in a 
legal proceeding.
    (b) General Counsel means the General Counsel of the MSPB or a 
person to whom the General Counsel has delegated authority under this 
part.
    (c) Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    (d) MSPB means the Merit Systems Protection Board.
    (e) MSPB employee or employee means:
    (1)(i) Any current or former employee of the MSPB;
    (ii) Any other individual hired through contractual agreement by or 
on behalf of the MSPB or who has performed or is performing services 
under such an agreement for the MSPB; and
    (iii) Any individual who served or is serving in any consulting or 
advisory capacity to the MSPB, whether formal or informal.
    (2) This definition does not include persons who are no longer 
employed by the MSPB and who agree to testify about general matters, 
matters available to the public, or matters with which they had no 
specific involvement or responsibility during their employment with the 
MSPB.
    (f) Records or official records and information all information in 
the custody and control of the MSPB, relating to information in the 
custody and control of the MSPB, or acquired by an MSPB employee in the 
performance of his or her official duties or because of his or her 
official status, while the individual was employee by or on behalf of 
the MSPB.
    (g) Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court of other competent authority.
    (h) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.



 Subpart B_Demands or Requests for Testimony and Production of Documents



Sec. 1216.201  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.



Sec. 1216.202  Factors the MSPB will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response to 
a demand or request. Among the relevant factors that the General Counsel 
may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) Allowing such testimony or production of records would assist or 
hinder the MSPB in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in the 
best interest of the MSPB or the United States;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rule of 
procedure governing the

[[Page 100]]

case or mater in which the demand or request arose;
    (g) Disclosure would violate a statute, Executive Order or 
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential or financial 
information, otherwise protected information, or information which would 
otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights or national security interests;
    (j) Disclosure would result in the MSPB appearing to favor one 
litigant over another;
    (k) Whether the request was served before the demand;
    (l) A substantial Government interest is implicated;
    (m) The demand or request is within the authority of the party 
making it; and
    (n) The demand or request is sufficiently specific to be answered.



Sec. 1216.203  Filing requirements for litigants seeking documents or testimony.

    A litigant must comply with the following requirements when filing a 
request for official records and information or testimony under this 
part. A request should be filed before a demand.
    (a) The request must be in writing and must be submitted to the 
Clerk of the Board who will immediately forward the request to the 
General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name and 
address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth the 
assertions in the case and any other pleading or document necessary to 
show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the testimony 
or records sought;
    (4) A statement as to how the need for the information outweighs any 
need to maintain the confidentiality of the information and outweighs 
the burden on the MSPB to produce the records or provide testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than an MSPB employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders, or pending motions 
in the case that bear upon the relevance of the requested records or 
testimony;
    (8) The name, address, and telephone number of counsel to each party 
in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require for each MSPB employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The MSPB reserves the right to require additional information to 
complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the date 
that records or testimony is required. Requests submitted in less than 
30 days before records or testimony is required must be accompanied by a 
written explanation stating the reasons for the late request and the 
reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General Counsel 
to make an informed decision may serve as the basis for a determination 
not to comply with the request.
    (f) The request should state that the requester will provide a copy 
of the MSPB employee's statement free of charge and that the requester 
will permit the MSPB to have a representative present during the 
employee's testimony.



Sec. 1216.204  Service of requests or demands.

    Requests or demands for official records or information or testimony 
under this subpart must be served on

[[Page 101]]

the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M 
Street, NW., Washington, DC 20419-0002 by mail, fax, or e-mail and 
clearly marked ``Part 1216 Request for Testimony or Official Records in 
Legal Proceedings.'' The request or demand will be immediately forwarded 
to the General Counsel for processing.



Sec. 1216.205  Processing requests or demands.

    (a) After receiving service of a request or demand for testimony, 
the General Counsel will review the request and, in accordance with the 
provisions of this subpart, determine whether, or under what conditions, 
to authorize the employee to testify on matters relating to official 
information and/or produce official records and information.
    (b) Absent exigent circumstances, the MSPB will issue a 
determination within 30 days from the date the request is received.
    (c) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of the MSPB or the United States, or for 
other good cause.
    (d) Certification (authentication) of copies of records. The MSPB 
may certify that records are true copies in order to facilitate their 
use as evidence. If a requester seeks certification, the requester must 
request certified copies from the MSPB at least 30 days before the date 
they will be needed. The request should be sent to the Clerk of the 
Board.



Sec. 1216.206  Final determination.

    The General Counsel makes the final determination on demands to 
requests to employees for production of official records and information 
or testimony in litigation in which the MSPB is not a party. All final 
determinations are within the sole discretion of the General Counsel. 
The General Counsel will notify the requester and, when appropriate, the 
court of other competent authority of the final determination, the 
reasons for the grant or denial of the request, and any conditions that 
the General Counsel may impose on the release of records or information, 
or on the testimony of an MSPB employee. The General Counsel's decision 
exhausts administrative remedies for discovery of the information.



Sec. 1216.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on the 
testimony of MSPB employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only in the particular legal proceeding for which testimony was 
requested. The General Counsel may also require a copy of the transcript 
of testimony at the requester's expense.
    (b) The MSPB may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not;
    (1) Disclose confidential or privileged information; or
    (2) For a current MSPB employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's official 
duties or the functions of the MSPB unless testimony is being given on 
behalf of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to the MSPB's approval.



Sec. 1216.208  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on the 
release of official records and information, including the requirement 
that parties to the proceeding obtain a protective order or execute a 
confidentiality agreement to limit access and any further disclosure. 
The terms of the protective order or of a confidentiality agreement must 
be acceptable

[[Page 102]]

to the General Counsel. In cases where protective orders or 
confidentiality agreements have already been executed, the MSPB may 
condition the release of official records and information on an 
amendment to the existing protective order or confidentiality agreement.
    (b) If the General Counsel so determines, original MSPB records may 
be presented for examination in response to a request, but they may not 
be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official MSPB records, nor may they be 
marked or altered. In lieu of the original records, certified copies may 
be presented for evidentiary purposes.



Sec. 1216.209  Procedure when a decision is not made prior to the time a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec. 1216.206, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the request is being reviewed, provide an 
estimate as to when a decision will be made, and seek a stay of the 
demand or request pending a final determination.



Sec. 1216.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the General Counsel, will appear, if necessary, at 
the stated time and place, produce a copy of this part, state that the 
employee has been advised by counsel not to provide the requested 
testimony or produce documents, and respectfully decline to comply with 
the demand or request, citing United States ex rel. Touchy v. Ragen, 340 
U.S. 462 (1951).



                       Subpart C_Schedule of Fees



Sec. 1216.301  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a reasonable 
estimate of the costs to the MSPB.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the request, and expenses generated by materials 
and equipment used to search for, produce, and copy the responsive 
information. Costs for employee time will be calculated on the basis of 
the hourly pay of the employee (including all pay, allowances, and 
benefits). Fees for duplication will be the same as those charged by the 
MSPB in its Freedom of Information Act regulations at 5 CFR part 1204.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon the 
rule of the Federal district closest to the location where the witness 
will appear and on 28 U.S.C. 1821, as applicable. Such fees will include 
cost of time spent by the witness to prepare for testimony, in travel 
and for attendance in the legal proceeding, plus travel costs.
    (d) Payment of fees. A requester must pay witness fees for current 
MSPB employees and any record certification fees by submitting to the 
Clerk of the Board a check or money order for the appropriate amount 
made payable to the Treasury of the United States. In the case of 
testimony of former MSPB employees, the request must pay applicable fees 
directly to the former MSPB employee in accordance with 28 U.S.C. 1821 
or other applicable statutes.
    (e) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.



                           Subpart D_Penalties



Sec. 1216.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by

[[Page 103]]

the MSPB, or as ordered by a Federal court after the MSPB has had the 
opportunity to be heard, may face the penalties provided in 18 U.S.C. 
641 and other applicable laws. Additionally, former MSPB employees are 
subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
    (b) A current MSPB employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action.

[[Page 105]]



              CHAPTER III--OFFICE OF MANAGEMENT AND BUDGET




  --------------------------------------------------------------------

                 SUBCHAPTER A--ADMINISTRATIVE PROCEDURES
Part                                                                Page
1300            Standards of conduct........................         107
1302            Privacy Act procedures......................         107
1303            Public information provisions of the 
                    Administrative Procedures Act...........         113
1304            Post employment conflict of interest........         120
1305            Release of official information, and 
                    testimony by OMB personnel as witnesses, 
                    in litigation...........................         123
                      SUBCHAPTER B--OMB DIRECTIVES
1310            OMB circulars...............................         125
1312            Classification, downgrading, 
                    declassification and safeguarding of 
                    national security information...........         126
1315            Prompt payment..............................         138
1320            Controlling paperwork burdens on the public.         152
 SUBCHAPTER C--JOINT REGULATION WITH THE OFFICE OF PERSONNEL MANAGEMENT
1330            Human resources management..................         174

[[Page 107]]



                 SUBCHAPTER A_ADMINISTRATIVE PROCEDURES


PART 1300_STANDARDS OF CONDUCT--Table of Contents

    Authority: 5 U.S.C. 7301.



Sec. 1300.1  Cross-reference to employees ethical conduct standards and financial disclosure regulations.

    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.

[60 FR 12397, Mar. 7, 1995]



PART 1302_PRIVACY ACT PROCEDURES--Table of Contents

Sec.
1302.1 Rules for determining if an individual is the subject of a 
          record.
1302.2 Requests for access.
1302.3 Access to the accounting of disclosures from records.
1302.4 Requests to amend records.
1302.5 Request for review.
1302.6 Schedule of fees.

    Authority: Pub. L. 93-579, 88 Stat. 1896, 5 USC 552a(f).

    Source: 41 FR 38491, Sept. 10, 1976, unless otherwise noted.



Sec. 1302.1  Rules for determining if an individual is the subject of a record.

    (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 Federal Register 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).
    (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.
    (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.
    (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.



Sec. 1302.2  Requests for access.

    (a) Requirement for written requests. 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

[[Page 108]]

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.
    (b) Procedures--(1) Content of the Request. (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 Sec. 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.
    (ii) If the request for access follows a prior request under Sec. 
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.
    (iii) If the individual specifically desires a copy of the record, 
the request should so specify.
    (2) OMB action on request. 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:
    (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;
    (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 
Sec. 1302.2(b)(1) of this part;
    (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;
    (iv) The amount of fees charged, if any (see Sec. 1302.6 of this 
part). (Fees are applicable only to requests for copies.);
    (v) The name, title, and telephone number of the OMB official having 
operational control over the record; and
    (vi) The documentation required by OMB to verify the identity of the 
requester. At a minimum, OMB's verification standards include the 
following:
    (A) Current or former OMB employees. 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

[[Page 109]]

record are examples of acceptable identification validation.
    (B) Other than current or former OMB employees. 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).
    (C) Access granted by mail. 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.
    (D) Unavailability of identification documentation. 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.
    (E) Access by the parent of a minor, or legal guardian. 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.
    (F) Granting access when accompanied by another individual. 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.
    (G) Denial of access for inadequate identification documentation. 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.
    (H) Review of decision to deny access. 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 Sec. 1302.5 of this part.
    (vii) Exceptions. Nothing in these regulations shall be construed to 
entitle an individual the right to access to any

[[Page 110]]

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.



Sec. 1302.3  Access to the accounting of disclosures from records.

    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 Sec. 1302.2, of this 
part.



Sec. 1302.4  Requests to amend records.

    (a) Requirement for written requests. 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.
    (b) Procedures. (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.
    (ii) When the individual's identity has been previously verified 
pursuant to Sec. 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 Sec. 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.
    (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.
    (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.
    (v) Incomplete or inaccurate requests will not be rejected 
categorically. The individual will be asked to clarify the request as 
needed.
    (2) OMB action on the request. 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:
    (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.
    (ii) The reasons for the determination for any portion of the 
request which is denied.
    (iii) The name and address of the official with whom an appeal of 
the denial may be lodged.

[[Page 111]]

    (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.
    (v) A description of the review of the appeal within OMB (see Sec. 
1302.5 of this part).
    (vi) A description of any other procedures which may be required of 
the individual in order to process the appeal.

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.



Sec. 1302.5  Request for review.

    (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 Sec. Sec. 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 Sec. 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.
    (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 Sec. Sec. 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.
    (c) The request for review should be addressed to the Assistant to 
the Director for Administration.
    (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.
    (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:
    (1) Deputy Director;
    (2) Assistant to the Director for Administration;
    (3) General Counsel;
    (4) Assistant Director for Budget Review;
    (5) Assistant Director for Legislative Reference;
    (6) Assistant to the Director for Public Affairs;
    (7) Deputy Associate Director for Information Systems;

[[Page 112]]

    (8) Deputy Associate Director for Statistical Policy;
    (9) Deputy Associate Director for National Security;
    (10) Budget and Management Officer;
    (11) Personnel Officer.
    (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.
    (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 
Sec. 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.



Sec. 1302.6  Schedule of fees.

    (a) Prohibitions against charging fees. Individuals will not be 
charged for:
    (1) The search and review of the record,
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access, or
    (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.
    (b) Waiver. 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.
    (c) Fee schedule and method of payment. Fees will be charged as 
provided below except as provided in paragraphs (a) and (b) of this 
section.
    (1) Duplication of records. 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.
    (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

[[Page 113]]

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.
    (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.
    (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.
    (5) A receipt for fees paid will be given upon request.



PART 1303_PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT--Table of Contents

                              Organization

Sec.
1303.1 General.
1303.2 Authority and functions.
1303.3 Organization.

                               Procedures

1303.10 Access to information.

                       Availability of Information

1303.20 Inspection and copying.

                   Charges for Search and Reproduction

1303.30 Definitions.
1303.40 Fees to be charged--general.
1303.50 Fees to be charged--categories of requesters.
1303.60 Miscellaneous fee provisions.
1303.70 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552.

    Source: 47 FR 33483, Aug. 3, 1982, unless otherwise noted.

                              Organization



Sec. 1303.1  General

    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.



Sec. 1303.2  Authority and functions.

    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.

[63 FR 20514, Apr. 27, 1998]



Sec. 1303.3  Organization.

    (a) The brief description of the central organization of the Office 
of Management and Budget follows:
    (1) The Director's Office includes the Director, the Deputy 
Director, the Deputy Director for Management, and the Executive 
Associate Director.
    (2) Staff Offices include General Counsel, Legislative Affairs, 
Communications, Administration, and Economic Policy.
    (3) Offices that provide OMB-wide support include the Legislative 
Reference and Budget Review Divisions.
    (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.
    (5) Statutory offices include the Office of Federal Financial 
Management, Office of Federal Procurement Policy, and the Office of 
Information and Regulatory Affairs.
    (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

[[Page 114]]

from entering the building without an appointment.

[63 FR 20514, Apr. 27, 1998]

                               Procedures



Sec. 1303.10  Access to information.

    (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.
    (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.
    (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.)
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined that 
they involve:
    (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;
    (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;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
effect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (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

[[Page 115]]

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.
    (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.
    (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.
    (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.
    (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.
    (h) As used herein, but only to the extent reasonably necessary to 
the proper processing of the particular request, the term ``unusual 
circumstances'' means:
    (1) The need to search for and collect the requested records from 
establishments that are separated from the office processing the 
request;
    (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
    (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.

[63 FR 20514, Apr. 27, 1998]

                       Availability of Information



Sec. 1303.20  Inspection and copying.

    When a request for information has been approved pursuant to Sec. 
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 Sec. 1303.10(b). Such materials may be copied and 
reasonable facilities will be made available for that purpose. Copies

[[Page 116]]

of individual pages of such materials will be made available at the 
price per page specified in Sec. 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.

[63 FR 20515, Apr. 27, 1998]

                   Charges for Search and Reproduction



Sec. 1303.30  Definitions.

    For the purpose of these regulations:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) A statute specifically providing for setting the level of fees 
for particular types of records (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:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (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;
    (3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in part, 
appropriated funds used to pay the cost of disseminating government 
information.

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.
    (c) The term direct costs 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.
    (d) The term search 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).
    (e) The term duplication 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.
    (f) The term review 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.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.

[[Page 117]]

    (g) The term `commercial use' request refers to a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or the 
person on whose behalf the request is made. 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.
    (h) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program or programs of scholarly research.
    (i) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (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.
    (j) The term representative of the news media 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 news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of news) who 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.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of freelance 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.

[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]



Sec. 1303.40  Fees to be charged--general.

    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.
    (a) Manual searches for records. OMB will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search.
    (b) Computer searches for records. 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.
    (c) Review of records. 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; i.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

[[Page 118]]

be reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review is 
assessable.
    (d) Duplication of records. 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.
    (e) Other charges. OMB will recover the full costs of providing 
services such as those enumerated below when it elects to provide them:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (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.
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.
    (h) Restrictions on assessing fees. 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.
    (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.
    (2) For purposes of these restrictions on assessment of fees, the 
word ``pages'' refers to paper copies of ``8\1/2\ x 11'' or ``11 x 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.
    (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, i.e., the 
operator, OMB will begin assessing charges for computer search.

[52 FR 49153, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]



Sec. 1303.50  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters. The 
specific levels of fees for each of these categories are:
    (a) Commercial use requesters. 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 Sec. 1303.60(b)).
    (b) Educational and non-commercial scientific institution 
requesters. OMB shall provide documents to requesters

[[Page 119]]

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.
    (c) Requesters who are representatives of the news media. 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 Sec. 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.
    (d) All other requesters. 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.

[52 FR 49154, Dec. 30, 1987]



Sec. 1303.60  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. 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.
    (b) Charges for unsuccessful search. 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.
    (c) Aggregating requests. A requester may not file multiple requests 
at the same time, each seeking portions of a document or documents, 
solely in order to avoid payment of fees. When 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.
    (d) Advance payments. OMB may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (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
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). 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

[[Page 120]]

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.
    (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.
    (e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). 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.

[52 FR 49154, Dec. 30, 1987, as amended at 63 FR 20515, Apr. 27, 1998]



Sec. 1303.70  Waiver or reduction of charges.

    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.

[52 FR 49155, Dec. 30, 1987]



PART 1304_POST EMPLOYMENT CONFLICT OF INTEREST--Table of Contents

Sec.
1304.4601 Purpose.
1304.4604 Definitions.
1304.4605 Post-employment restrictions.
1304.4606 Exemptions.
1304.4607 Advice to former Government employees.
1304.4608 Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 
          737.27).

    Authority: 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.

    Source: 45 FR 84007, Dec. 22, 1980, unless otherwise noted.



Sec. 1304.4601  Purpose.

    (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.
    (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.
    (c) These regulations do not incorporate possible additional 
restrictions contained in a professional code of conduct to which an 
employee may also be subject.
    (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.



Sec. 1304.4604  Definitions.

    (a) Government Employee 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.
    (b) Former Government Employee means one who was, and no longer is, 
a Government employee.
    (c) Special Government Employee 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

[[Page 121]]

Special Government Employee is compensated or not.
    (d) Senior Employee 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.)



Sec. 1304.4605  Post-employment restrictions.

    (a) General Restrictions Applicable to All Former Government 
Employees:
    (1) Permanent Bar. 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.
    (2) Two-Year Bar. (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.
    (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.
    (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.
    (b) Restrictions Applicable Only to Former Senior Employees:
    (1) Two-Year Bar on Assisting in Representing. (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.
    (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.
    (2) One-Year Bar on Attempts to Influence Former Agency. (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.
    (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.
    (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.
    (c) OFPP is a separate agency for purposes of the foregoing 
restrictions on post-employment activities.



Sec. 1304.4606  Exemptions.

    (a) General. (1) Communications made solely to furnish scientific or 
technological information are exempt from these prohibitions.
    (2) A former Government employee may be exempted from the 
restrictions on post-employment practices if the

[[Page 122]]

Deputy Director of OMB, in consultation with the Director of the Office 
of Government Ethics, executes a certification that is published in the 
Federal Register. 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.
    (b) Specific. The one-year bar shall not apply to a former Senior 
Employee's representation on new matters if the former Senior Employee 
is:
    (1) An elected State or local government official, who is acting on 
behalf of such government; or
    (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.



Sec. 1304.4607  Advice to former Government employees.

    The Office of General Counsel, OMB, has the responsibility for 
providing assistance promptly to former Government employees who seek 
advice on specific problems.



Sec. 1304.4608  Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).

    (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.
    (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.
    (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.
    (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.
    (e) Notice. 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.
    (f) Hearing. A hearing may be obtained by submitting a written 
request to the Office of General Counsel.
    (g) Examiner. 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.
    (h) Time, date and place. 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

[[Page 123]]

for an expeditious resolution of allegations that may be damaging to his 
reputation.
    (i) Hearing rights. 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.
    (j) Burden of proof. OMB has the burden of proof and must establish 
substantial evidence of a violation.
    (k) Decision. 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.
    (l) Appeal within OMB. 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.
    (m) Administrative sanctions. 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)).
    (n) Judicial review. 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.



PART 1305_RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB PERSONNEL AS WITNESSES, IN LITIGATION--Table of Contents

Sec.
1305.1 Purpose and scope.
1305.2 Production prohibited unless approved.
1305.3 Procedures in the event of a demand for disclosure.
1305.4 Procedure in the event of an adverse ruling.
1305.5 No private right of action.

    Authority: 31 U.S.C. 502.

    Source: 62 FR 29285, May 30, 1997, unless otherwise noted.



Sec. 1305.1  Purpose and scope.

    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:
    (a) Any material contained in the files of OMB;
    (b) Any information relating to materials contained in the files of 
OMB; or
    (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.



Sec. 1305.2  Production prohibited unless approved.

    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.



Sec. 1305.3  Procedures in the event of a demand for disclosure.

    (a) Whenever a demand is made upon an employee or former employee of

[[Page 124]]

OMB for the production of material or the disclosure of information 
described in Sec. 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.
    (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.
    (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.

(Approved by the Office of Management and Budget under control number 
0348-0056)



Sec. 1305.4  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 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. Touhy v. Ragen, 340 
U.S. 462 (1951)).

(Approved by the Office of Management and Budget under control number 
0348-0056)



Sec. 1305.5  No private right of action.

    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.

[[Page 125]]



                       SUBCHAPTER B_OMB DIRECTIVES


PART 1310_OMB CIRCULARS--Table of Contents

Sec.
1310.1 Policy guidelines.
1310.3 Availability of circulars.
1310.5 List of current circulars.

    Authority: 31 U.S.C. 501-06.

    Source: 63 FR 70311, Dec. 21, 1998, unless otherwise noted.



Sec. 1310.1  Policy guidelines.

    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.



Sec. 1310.3  Availability of circulars.

    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.



Sec. 1310.5  List of current circulars.

    The following list includes all circulars in effect as of December 
1, 1998.

No. and Title
A-1--``System of Circulars and Bulletins to Executive Departments and 
Establishments''
A-11--``Preparation and Submission of Budget Estimates'' (Part 1)
    ``Preparation and Submission of Strategic Plans and Annual 
Performance Plans'' (Part 2)
    ``Planning, Budgeting, and Acquisition of Capital Assets'' (Part 3)
    ``Capital Programming Guide'' (Supplement to Part 3)
A-16--``Coordination of Surveying, Mapping, and Related Spatial Data 
Activities''
A-19--``Legislative Coordination and Clearance''
A-21--``Cost Principles for Educational Institutions''
A-25--``User Charges''
A-34--``Instructions on Budget Execution''
A-45--``Rental and Construction of Government Quarters''
A-50--``Audit Followup''
A-76--``Performance of Commercial Activities''
A-87--``Cost Principles for State, Local, and Indian Tribal 
Governments''
A-89--``Federal Domestic Assistance Program Information''
A-94--``Guidelines and Discount Rates for Benefit-Cost Analysis of 
Federal Programs''
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''
A-102--``Grants and Cooperative Agreements With State and Local 
Governments''
A-109--``Major System Acquisitions''
A-110--``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations''
A-119--``Federal Participation in the Development and Use of Voluntary 
Consensus Standards and in Conformity Assessment Activities''
A-122--``Cost Principles for Non-Profit Organizations''
A-123--``Management Accountability and Control''
A-125--``Prompt Payment''
A-126--``Improving the Management and Use of Government Aircraft''
A-127--``Financial Management Systems''
A-129--``Policies for Federal Credit Programs and Non-Tax Receivables ``
A-130--``Management of Federal Information Resources''
A-131--``Value Engineering''
A-133--``Audits of States, Local Governments, and Non-Profit 
Organizations''
A-134--``Financial Accounting Principles and Standards''

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A-135--``Management of Federal Advisory Committees''



PART 1312_CLASSIFICATION, DOWNGRADING, DECLASSIFICATION AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION--Table of Contents

   Subpart A_Classification and Declassification of National Security 
                               Information

Sec.
1312.1 Purpose and authority.
1312.2 Responsibilities.
1312.3 Classification requirements.
1312.4 Classified designations.
1312.5 Authority to classify
1312.6 Duration of classification.
1312.7 Derivative classification.
1312.8 Standard identification and markings.
1312.9 Downgrading and declassification.
1312.10 Systematic review guidelines.
1312.11 Challenges to classifications.
1312.12 Security Program Review Committee.

     Subpart B_Control and Accountability of Classified Information

1312.21 Purpose and authority.
1312.22 Responsibilities.
1312.23 Access to classified information.
1312.24 Access by historical researchers and former Presidential 
          appointees.
1312.25 Storage.
1312.26 Control of secret and confidential material.
1312.27 Top secret control.
1312.28 Transmission of classified material.
1312.29 Destruction.
1312.30 Loss or possible compromise.
1312.31 Security violations.

               Subpart C_Mandatory Declassification Review

1312.32 Purpose and authority.
1312.33 Responsibility.
1312.34 Information in the custody of OMB.
1312.35 Information classified by another agency.
1312.36 Appeal procedure.
1312.37 Fees.

    Authority: Executive Order 12958, April 20, 1995, 3 CFR, 1995 Comp., 
p. 333.

    Source: 62 FR 25426, May 9, 1997, unless otherwise noted.



   Subpart A_Classification and Declassification of National Security 
                               Information



Sec. 1312.1  Purpose and authority.

    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.



Sec. 1312.2  Responsibilities.

    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.
    (a) EOP Security Officer. 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:
    (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.

[[Page 127]]

    (2) Issues and keeps current such classification guides and 
guidelines for review for declassification as are required by the Order.
    (3) Conducts periodic reviews of classified documents produced and 
provides assistance and guidance where necessary.
    (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.
    (b) Heads of divisions or offices. 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.



Sec. 1312.3  Classification requirements.

    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.
    (a) Information shall be considered for classification if it 
concerns:
    (1) Military plans, weapons systems, or operations;
    (2) Foreign government information;
    (3) Intelligence activities (including special activities), 
intelligence sources or methods, or cryptology;
    (4) Foreign relations or foreign activities of the United States, 
including confidential sources;
    (5) Scientific, technological, or economic matters relating to the 
national security;
    (6) United States Government programs for safeguarding nuclear 
materials or facilities; or
    (7) Vulnerabilities or capabilities of systems, installations, 
projects or plans relating to the national security.
    (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.
    (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.
    (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.



Sec. 1312.4  Classified designations.

    (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:
    (1) Top Secret. 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.
    (2) Secret. 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.
    (3) Confidential. 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.
    (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.



Sec. 1312.5  Authority to classify.

    (a) The authority to originally classify information or material 
under this part shall be limited to those officials

[[Page 128]]

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:
    (1) Top Secret and below:
    (i) Deputy Director.
    (ii) Deputy Director for Management.
    (iii) Associate Director for National Security and International 
Affairs.
    (iv) Associate Director for Natural Resources, Energy and Science.
    (2) Secret and below:
    (i) Deputy Associate Director for National Security.
    (ii) Deputy Associate Director for International Affairs.
    (iii) Deputy Associate Director for Energy and Science.
    (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.



Sec. 1312.6  Duration of classification.

    (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:
    (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;
    (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;
    (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.
    (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.
    (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.
    (b) When extending the duration of classification, the original 
classification authority must:
    (1) Be an original classification authority with jurisdiction over 
the information.
    (2) Ensure that the information continues to meet the standards for 
classification under the Executive Order.
    (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:
    (i) Be declassified by a declassification authority as defined in 
Section 3.1 of the Executive Order.
    (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.
    (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

[[Page 129]]

from the date of its original classification.



Sec. 1312.7  Derivative classification.

    A derivative classification 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.



Sec. 1312.8  Standard identification and markings.

    (a) Original classification. 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:
    (1) Classification authority. The name/personal identifier, and 
position title of the original classifier shall appear on the 
``Classified By'' line.
    (2) Agency and office of origin. If not otherwise evident, the 
agency and office of origin shall be identified and placed below the 
name on the ``Classified By'' line.
    (3) Reasons for classification. 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.
    (4) Declassification instructions. These instructions shall indicate 
the following:
    (i) The duration of the original classification decision shall be 
placed on the ``Declassify On'' line.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.
    (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.

[[Page 130]]

    (b) Derivative classification. Information classified derivatively 
on the basis of source documents shall carry the following markings on 
those documents:
    (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''.
    (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.
    (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''.
    (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.
    (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.
    (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).
    (7) The derivatively classified document shall be conspicuously 
marked with the highest level of classification of information.
    (8) Each portion of a derivatively classified document shall be 
marked in accordance with its source.
    (9) Each office shall, consistent with Section 3.8 of the Executive 
Order, establish and maintain a database of information that has been 
declassified.
    (c) Additional Requirements. (1) Markings other than ``Top Secret'', 
``Secret'', and ``Confidential'' shall not be used to identify 
classified national security information.
    (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.
    (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.
    (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.
    (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:
    (i) Released by the originator outside the originating activity;
    (ii) Retained more than 180 days from the date of origin;
    (iii) Filed permanently.
    (6) Information contained in unmarked records, or Presidential or 
related materials, and which pertain to

[[Page 131]]

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.



Sec. 1312.9  Downgrading and declassification.

    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 Sec. 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.
    (a) Transferred material. 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.
    (b) Periodic review of classified material. 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.



Sec. 1312.10  Systematic review guidelines.

    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.



Sec. 1312.11  Challenges to classifications.

    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.



Sec. 1312.12  Security Program Review Committee.

    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.



     Subpart B_Control and Accountability of Classified Information



Sec. 1312.21  Purpose and authority.

    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.



Sec. 1312.22  Responsibilities.

    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

[[Page 132]]

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.
    (a) EOP Security Officer. In cooperation with the Associate Director 
(or Assistant Director) for Administration, the EOP Security Officer 
supervises the administration of this section. Specifically, he/she:
    (1) Promotes the correct understanding of this section and insures 
that initial and annual briefings about security procedures are given to 
all new employees.
    (2) Provides for periodic inspections of office areas and reviews of 
produced documents to ensure full compliance with OMB regulations and 
procedures.
    (3) Takes prompt action to investigate alleged violations of 
security, and recommends appropriate administrative action with respect 
to violators.
    (4) Supervises the annual inventories of Top Secret material.
    (5) Ensures that containers used to store classified material meet 
the appropriate security standards and that combinations to security 
containers are changed as required.
    (b) Heads of Offices. The head of each division or office is 
responsible for the administration of this section in his/her area. 
These responsibilities include:
    (1) The appointment of accountability control clerks as prescribed 
in Sec. 1312.26.
    (2) The maintenance of the prescribed control and accountability 
records for classified information within the office.
    (3) Establishing internal procedures to ensure that classified 
material is properly safeguarded at all times.



Sec. 1312.23  Access to classified information.

    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.



Sec. 1312.24  Access by historical researchers and former Presidential appointees.

    (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:
    (1) Determines in writing that access is consistent with the 
interest of national security;
    (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
    (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.
    (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

[[Page 133]]

by the division/office of primary interest to ensure that access is 
granted only to material over which OMB has classification jurisdiction.



Sec. 1312.25  Storage.

    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.



Sec. 1312.26  Control of secret and confidential material.

    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.
    (a) Accountability Control Clerks. 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.
    (b) OMB Form 87. 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.
    (c) Working papers and drafts. 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.
    (d) Typewriter ribbons. 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 Sec. 1312.29.
    (e) Reproduction. 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.



Sec. 1312.27  Top secret control.

    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.
    (a) Procedures. 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

[[Page 134]]

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.
    (b) Inventory. 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.



Sec. 1312.28  Transmission of classified material.

    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.
    (a) Transmittal of Top Secret material. 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.
    (b) Transmittal of Secret material. The transmittal of Secret 
material shall be as follows:
    (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.
    (2) Other Areas. Use the same means authorized for Top Secret, or 
transmit by U.S. registered mail through Military Postal Service 
facilities.
    (c) Transmittal of Confidential material. 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.
    (d) Transmittal between OMB offices and within the EOP complex. 
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.

[[Page 135]]



Sec. 1312.29  Destruction.

    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:
    (a) Shredding. 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.
    (b) Burn bag. 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:
    (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.
    (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.
    (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.
    (c) Technical guidance. 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.



Sec. 1312.30  Loss or possible compromise.

    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.



Sec. 1312.31  Security violations.

    (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:
    (1) Preparation of a Record of Security Violation form;
    (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
    (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

[[Page 136]]

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.
    (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.
    (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.
    (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:
    (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.
    (ii) Provide any assistance needed for the inquiry conducted by the 
office/division involved in the alleged violation.
    (iii) Upon receipt of the report of inquiry from the responsible 
office/division, the EOP Security Officer will:
    (A) Consult with the OMB Associate Director (or Assistant Director) 
for Administration and the General Counsel;
    (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
    (C) Forward the report with a recommendation to the OMB General 
Counsel.
    (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:
    (i) Whether an actual security violation occurred;
    (ii) The identity of the person(s) responsible; and
    (iii) The probability of unauthorized access.
    (3) Deputy Associate Directors (or the equivalent) will:
    (i) Review and concur or comment on the written report; and
    (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.
    (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.
    (1) First violation:
    (i) Written notification of the violation will be filed in the 
responsible individual's security file; and
    (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.
    (2) Second violation:

[[Page 137]]

    (i) Written notification of the violation will be filed in the 
responsible individual's security file;
    (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
    (iii) A letter of Warning will be placed in the Disciplinary Action 
file maintained by the Office of Administration, Human Resources 
Management Division.
    (3) Third violation:
    (i) Written notification of the violation will be filed in the 
responsible individual's security file;
    (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
    (iii) A Letter of Reprimand will be placed in the Disciplinary 
Action file maintained by the OA/HRMD.
    (4) Fourth violation:
    (i) Written notification of the violation will be filed in the 
responsible individual's security file;
    (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;
    (iii) The responsible individual may receive a suspension without 
pay for a period not to exceed 14 days; and
    (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.



               Subpart C_Mandatory Declassification Review



Sec. 1312.32  Purpose and authority.

    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).



Sec. 1312.33  Responsibility.

    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.



Sec. 1312.34  Information in the custody of OMB.

    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.

[[Page 138]]



Sec. 1312.35  Information classified by another agency.

    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.



Sec. 1312.36  Appeal procedure.

    Appeals received as a result of a denial, see Sec. 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.



Sec. 1312.37  Fees.

    There will normally be no fees charged for the mandatory review of 
classified material for declassification under this section.



PART 1315_PROMPT PAYMENT--Table of Contents

Sec.
1315.1 Application.
1315.2 Definitions.
1315.3 Responsibilities.
1315.4 Prompt payment standards and required notices to vendors.
1315.5 Accelerated payment methods.
1315.6 Payment without evidence that supplies have been received (fast 
          payment).
1315.7 Discounts.
1315.8 Rebates.
1315.9 Required documentation.
1315.10 Late payment interest penalties.
1315.11 Additional penalties.
1315.12 Payments to governmentwide commercial purchase card issuers.
1315.13 Commodity Credit Corporation payments.
1315.14 Payments under construction contracts.
1315.15 Grant recipients.
1315.16 Relationship to other laws.
1315.17 Formulas.
1315.18 Inquiries.
1315.19 Regulatory references to OMB Circular A-125.
1315.20 Application of Section 1010 of the National Defense 
          Authorization Act for Fiscal Year 2001.

    Authority: 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.

    Source: 64 FR 52586, Sept. 29, 1999, unless otherwise noted.



Sec. 1315.1  Application.

    (a) Procurement contracts. This part applies to contracts for the 
procurement of goods or services awarded by:
    (1) All Executive branch agencies except:
    (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
    (ii) Agencies specifically exempted under 5 U.S.C. 551(1); and
    (2) The United States Postal Service. The Postmaster General is 
responsible for issuing implementing procurement regulations, 
solicitation provisions, and contract clauses for the United States 
Postal Service.
    (b) Vendor payments. All Executive branch vendor payments and 
payments to those defined as contractors or vendors (see Sec. 
1315.2(hh)) are subject to the Prompt Payment Act with the following 
exceptions:
    (1) Contract Financing Payments, as defined in Sec. 1315.2(h); and
    (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 et 
seq.)); 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).
    (c) Utility payments. All utility payments, including payments for 
telephone service, are subject to the Act except those under paragraph 
(b)(2) of

[[Page 139]]

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.
    (d) Commodity Credit Corporation payments. 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 
et seq.) are subject to this part.



Sec. 1315.2  Definitions.

    (a) Accelerated payment means a payment made prior to the due date 
(see discussion in Sec. 1315.5).
    (b) Acceptance 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.
    (c) Agency 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. Agency 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 agency includes military 
post and base exchanges and commissaries.
    (d) Applicable interest rate 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 Federal Register on or about January 1 and July 1.
    (e) Automated Clearing House (ACH) means a network that performs 
interbank clearing of electronic debit and credit entries for 
participating financial institutions.
    (f) Banking information means information necessary to facilitate an 
EFT payment, including the vendor's bank account number, and the vendor 
financial institution's routing number.
    (g) Contract 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 et seq.). Contracts must meet the requirements of Sec. 1315.9(a).
    (h) Contract financing payments 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., Sec. Sec. 1315.4(d) and (e), and 1315.9(b)(1) and (c)).

[[Page 140]]

    (i) Contracting office means any entity issuing a contract or 
purchase order or issuing a contract modification or termination.
    (j) Contractor (see Vendor).
    (k) Day means a calendar day including weekend and holiday, unless 
otherwise indicated.
    (l) Delivery ticket 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.
    (m) Designated agency office 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.
    (n) Discount means an invoice payment reduction offered by the 
vendor for early payment.
    (o) Discount date means the date by which a specified invoice 
payment reduction, or a discount, can be taken.
    (p) Due date means the date on which Federal payment should be made. 
Determination of such dates is discussed in Sec. 1315.4(g).
    (q) Electronic commerce 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.
    (r) Electronic data interchange 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.
    (s) Electronic Funds Transfer (EFT) 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.
    (t) Emergency payment 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.
    (u) Evaluated receipts means contractually designated use of the 
acceptance document and the contract as the basis for payment without 
requiring a separate invoice.
    (v) Fast payment 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.
    (w) Federal Acquisition Regulation (FAR) 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.
    (x) Governmentwide commercial purchase cards 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.
    (y) Invoice 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 Sec. 1315.9(b). The term invoice can include receiving 
reports and delivery tickets when contractually designated as invoices.
    (z) Payment date means the date on which a check for payment is 
dated or the date of an electronic fund transfer (EFT) payment 
(settlement date).
    (aa) Rebate means a monetary incentive offered to the Government by 
Governmentwide commercial purchase

[[Page 141]]

card issuers to pay purchase card invoices early.
    (bb) Receiving office means the entity which physically receives the 
goods or services, and may be separate from the accepting entity.
    (cc) Receiving report means written or electronic evidence of 
receipt of goods or services by a Government official. Receiving reports 
must meet the requirements of Sec. 1315.9(c).
    (dd) Recurring payments 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.
    (ee) Settlement date means the date on which an EFT payment is 
credited to the vendor's financial institution.
    (ff) Taxpayer Identifying Number (TIN) 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).
    (gg) Utilities and telephones means electricity, water, sewage 
services, telephone services, and natural gas. Utilities can be 
regulated, unregulated, or under contract.
    (hh) Vendor 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).

[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78404, Dec. 15, 2000]



Sec. 1315.3  Responsibilities.

    Each agency head is responsible for the following:
    (a) Issuing internal procedures. 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.
    (b) Internal control systems. Ensuring that effective internal 
control systems are established and maintained as required by OMB 
Circular A-123, ``Management Accountability and Control.'' \1\ 
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.
---------------------------------------------------------------------------

    \1\ For availability of OMB circulars, see 5 CFR 1310.3.
---------------------------------------------------------------------------

    (c) Financial management systems. Ensuring that financial management 
systems comply with OMB Circular A-127, ``Financial Management 
Systems.'' \2\ 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.
---------------------------------------------------------------------------

    \2\ See footnote 1 in Sec. 1315.3(b).
---------------------------------------------------------------------------

    (d) Reviews. Ensuring that Inspectors General and internal auditors 
review payments performance and systems accuracy, consistent with the 
Chief Financial Officers (CFO) Act requirements.
    (e) Timely payments and interest penalties. Ensuring timely payments 
and payment of interest penalties where required.



Sec. 1315.4  Prompt payment standards and required notices to vendors.

    Agency business practices shall conform to the following standards:
    (a) Required documentation. Agencies will maintain paper or 
electronic documentation as required in Sec. 1315.9.
    (b) Receipt of invoice. 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:
    (1) On the later of:

[[Page 142]]

    (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
    (ii) The seventh day after the date on which the property is 
actually delivered or performance of the services is actually completed; 
unless--
    (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
    (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;
    (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
    (3) On the date of delivery, when the contract specifies that the 
delivery ticket may serve as an invoice.
    (c) Review of invoice. Agencies will use the following procedures in 
reviewing invoices:
    (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 Sec. 1315.9(b);
    (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;
    (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.
    (d) Receipt of goods and services. 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.
    (e) Acceptance. 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.
    (f) Starting the payment period. 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 Sec. 1315.2(dd)).
    (g) Determining the payment due date. (1) Except as provided in 
paragraphs (g)(2) through (5) of this section, the payment is due 
either:
    (i) On the date(s) specified in the contract;
    (ii) In accordance with discount terms when discounts are offered 
and taken (see Sec. 1315.7);
    (iii) In accordance with Accelerated Payment Methods (see Sec. 
1315.5); or
    (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

[[Page 143]]

taken, and if accelerated payment methods are not used.
    (2) Interim payments under cost-reimbursement contracts for 
services. 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.
    (3) Certain commodity payments. (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.
    (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.
    (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.
    (4) Mixed invoices for commodities. When an invoice is received for 
items with different payment periods, agencies:
    (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;
    (ii) May make split payments by the due date applicable to each 
category;
    (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
    (iv) Shall not require vendors to submit multiple invoices for 
payment of individual orders by the agency.
    (5) Notification of improper invoice. 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;
    (h) Payment date. 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.
    (i) Late payment. When payments are made after the due date, 
interest will be paid automatically in accordance with the procedures 
provided in this part.
    (j) Timely payment. 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 Sec. 1315.5 when it determines that such earlier payment 
is necessary.

[[Page 144]]

    (k) Payments for partial deliveries. 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.

[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]



Sec. 1315.5  Accelerated payment methods.

    (a) A single invoice under $2,500. 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.
    (b) Small business (as defined in FAR 19.001 (48 CFR 19.001)). 
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.
    (c) Emergency payments. 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 et 
seq.); 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.
    (d) Interim payments under cost-reimbursement contracts for 
services. 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.

[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]



Sec. 1315.6  Payment without evidence that supplies have been received (fast payment).

    (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:
    (1) Individual orders do not exceed $25,000 (except where agency 
heads permits a higher amount on a case-by-case basis);
    (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;
    (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
    (4) The contractor agrees to replace, repair, or correct supplies 
not received at destination, damaged in transit, or not conforming to 
purchase requirements.
    (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.
    (c) Agencies shall ensure that specific internal controls are in 
place to assure that supplies paid for are received.
    (d) As authorized by the 1988 Amendment to the Prompt Payment Act 
(Section 11(b)(1)(C)), a contract clause at 48

[[Page 145]]

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.



Sec. 1315.7  Discounts.

    Agencies shall follow these procedures in taking discounts and 
determining the payment due dates when discounts are taken:
    (a) Economically justified discounts. 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) \3\ 
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.
---------------------------------------------------------------------------

    \3\ 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.
---------------------------------------------------------------------------

    (b) Discounts taken after the discount date. If an agency takes the 
discount after the deadline, the agency shall pay an interest penalty on 
any amount remaining unpaid as prescribed in Sec. 1315.10(a)(6).
    (c) Payment date. When a discount is taken, payment will be made as 
close as possible to, but no later than, the discount date.
    (d) Start date. 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.



Sec. 1315.8  Rebates.

    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 Sec. 
1315.17 and at the Prompt Payment website at www.fms.treas.gov/prompt/
index.html.



Sec. 1315.9  Required documentation.

    Agencies are required to ensure the following payment documentation 
is established to support payment of invoices and interest penalties:
    (a) The following information from the contract is required as 
payment documentation:
    (1) Payment due date(s) as defined in Sec. 1315.4(g);
    (2) A notation in the contract that partial payments are prohibited, 
if applicable;
    (3) For construction contracts, specific payment due dates for 
approved progress payments or milestone payments for completed phases, 
increments, or segments of the project;
    (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;
    (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;
    (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;
    (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);
    (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

[[Page 146]]

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;
    (9) If using Fast Payment, the proper FAR clause stipulating Fast 
Payment is required.
    (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:
    (i) Name of vendor;
    (ii) Invoice date;
    (iii) Government contract number, or other authorization for 
delivery of goods or services;
    (iv) Vendor invoice number, account number, and/or any other 
identifying number agreed to by contract;
    (v) Description (including, for example, contract line/subline 
number), price, and quantity of goods and services rendered;
    (vi) Shipping and payment terms (unless mutually agreed that this 
information is only required in the contract);
    (vii) Taxpayer Identifying Number (TIN), unless agency procedures 
provide otherwise;
    (viii) Banking information, unless agency procedures provide 
otherwise, or except in situations where the EFT requirement is waived 
under 31 CFR 208.4;
    (ix) Contact name (where practicable), title and telephone number;
    (x) Other substantiating documentation or information required by 
the contract.
    (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.
    (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:
    (1) Name of vendor;
    (2) Contract or other authorization number;
    (3) Description of goods or services;
    (4) Quantities received, if applicable;
    (5) Date(s) goods were delivered or services were provided;
    (6) Date(s) goods or services were accepted;
    (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.
    (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.

[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]



Sec. 1315.10  Late payment interest penalties.

    (a) Application and calculation. Agencies will use the following 
procedures in calculating interest due on late payments:
    (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;
    (2) Adjustments will be made for errors in calculating interest;
    (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;
    (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;
    (5) Interest penalties under the Prompt Payment Act will not 
continue to accrue:
    (i) After the filing of a claim for such penalties under the 
Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.); or
    (ii) For more than one year;
    (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

[[Page 147]]

specified discount date through the date of payment of the discount 
erroneously taken;
    (7) Interest penalties of less than one dollar need not be paid;
    (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);
    (9) Interest calculations are to be based on a 360 day year; and
    (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.
    (b) Payment. Agencies will meet the following requirements in paying 
interest penalties:
    (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;
    (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;
    (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;
    (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 Sec. 1315.11; and
    (5) Agencies shall pay any late payment interest penalties 
(including any additional penalties required under Sec. 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.
    (c) Penalties not due. Interest penalties are not required:
    (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 et seq.), except for interest payments required under 31 
U.S.C. 3902(h)(2);
    (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);
    (3) For a period when amounts are withheld temporarily in accordance 
with the contract;
    (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
    (5) When the interest penalty is less than $1.00.

[64 FR 52586, Sept. 29, 1999, as amended at 65 FR 78405, Dec. 15, 2000]



Sec. 1315.11  Additional penalties.

    (a) Vendor entitlements. 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:
    (1) Receives a payment dated after the payment due date which does 
not include the interest penalty also due to the vendor;
    (2) Is not paid the interest penalty by the agency within 10 days 
after the actual payment date; and
    (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

[[Page 148]]

40th day. The written request must include the following:
    (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
    (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.
    (b) Maximum penalty. The additional penalty shall be equal to one 
hundred (100) percent of the original late payment interest penalty but 
must not exceed $5,000.
    (c) Minimum penalty. 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.
    (d) Penalty basis. 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.
    (e) Utility payments. 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.



Sec. 1315.12  Payments to governmentwide commercial purchase card issuers.

    Standards for payments to government wide commercial purchase card 
issuers follow:
    (a) Payment date. 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 Sec. 1315.8. I TFM 4-4535.10 \4\ permits 
payment of the bill in full prior to verification that goods or services 
were received.
---------------------------------------------------------------------------

    \4\ See footnote 3 in Sec. 1315.7(a).
---------------------------------------------------------------------------

    (b) Disputed line items. 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.



Sec. 1315.13  Commodity Credit Corporation payments.

    As provided in Sec. 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 et seq.) (``1949 Act''.) Such payments shall be subject to 
the following provisions:
    (a) Payment standards. 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.
    (b) Interest penalties. 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:
    (1) On the amount of payment or loan due;
    (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
    (3) Out of funds available under Section 8 of the CCC Charter Act 
(15 U.S.C. 714f).
    (c) Contract Disputes Act of 1978. Insofar as covered CCC payments 
are concerned, provisions relating to the Contract Disputes Act of 1978 
(41 U.S.C. 601 et seq.) in Sec. 1315.10(a)(5)(i) and Sec. 1315.6(a) do 
not apply.
    (d) Extended periods for payment. 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.

[[Page 149]]



Sec. 1315.14  Payments under construction contracts.

    (a) Payment standards. Agencies shall follow these standards when 
making progress payments under construction contracts:
    (1) An agency may approve a request for progress payment if the 
application meets the requirements specified in paragraph (b) of this 
section;
    (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;
    (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);
    (4) A vendor is obligated to pay interest to the Government on 
unearned amounts in its possession from:
    (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
    (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);
    (5) Interest payment on unearned amounts to the government under 31 
U.S.C. 3905(a)(2) or 3905(e)(6), shall:
    (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;
    (ii) Be deducted from the next available payment to the vendor; and
    (iii) Revert to the Treasury.
    (b) Required documentation. (1) Substantiation of the amount(s) 
requested shall include:
    (i) An itemization of the amounts requested related to the various 
elements of work specified in the contract;
    (ii) A listing of the amount included for work performed by each 
subcontractor under the contract;
    (iii) A listing of the total amount for each subcontract under the 
contract;
    (iv) A listing of the amounts previously paid to each subcontractor 
under the contract; and
    (v) Additional supporting data and detail in a form required by the 
contracting officer.
    (2) Certification by the prime vendor is required, to the best of 
the vendor's knowledge and belief, that:
    (i) The amounts requested are only for performance in accordance 
with the specifications, terms, and conditions of the contract;
    (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
    (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.
    (c) Interest penalties. (1) Agencies will pay interest on:
    (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:
    (A) A period of more than 14 days after receipt of the payment 
request by the designated agency office; or
    (B) A longer period specified in the solicitation and/or contract if 
required,

[[Page 150]]

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;
    (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;
    (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:
    (A) The 30th day after the date on which the designated agency 
office receives a proper invoice; or
    (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.
    (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.



Sec. 1315.15  Grant recipients.

    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.



Sec. 1315.16  Relationship to other laws.

    (a) Contract Disputes Act of 1978 (41 U.S.C. 605). (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 Sec. 
1315.9) not paid under this part may be filed under Section 6 of the 
Contract Disputes Act.
    (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.
    (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.
    (b) Small Business Act (15 U.S.C. 644(k)). 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.



Sec. 1315.17  Formulas.

    (a) Rebate formula. (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

[[Page 151]]

date or the date specified in the contract.
    (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.
    (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:

(CVF/360) * 100

    (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:

(CVF/360) * 100
(5/360) * 100 = 1.4

    (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.
    (b) Daily simple interest formula. (1) To calculate daily simple 
interest the following formula may be used:

P(r/360*d)

Where:

P is the amount of principle or invoice amount;
r equals the Prompt Payment interest rate; and
d equals the numbers of days for which interest is being calculated.

    (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:

$1,500 (.065/360*10) = $2.71

    (c) Monthly compounding interest formula. (1) To calculate interest 
as required in Sec. 1315.10(a)(3), the following formula may be used:

P(1+r/12)\n\*(1+(r/360*d))-P

Where:

P equals the principle or invoice amount;
r equals the interest rate;
n equals the number of months; and
d equals the number of days for which interest is being calculated.

    (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.
    (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:

$ 1,500(1+.06/12) \2\ * (1+(0.06/360*15))-$1,500 = $18.83



Sec. 1315.18  Inquiries.

    (a) Regulation. 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 
prompt.inquiries@fms.sprint.com, or by completing a Prompt Payment 
inquiry

[[Page 152]]

form available at www.fms.treas.gov/prompt/inquiries.html.
    (b) Applicable interest rate. The rate is published by the Fiscal 
Service, Department of the Treasury, semiannually in the Federal 
Register 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.
    (c) Agency payments. 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.



Sec. 1315.19  Regulatory references to OMB Circular A-125.

    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.



Sec. 1315.20  Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.

    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:
    (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.
    (b) No interest penalty shall accrue under this part for any delay 
in payment that occurred prior to December 15, 2000.
    (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.

[67 FR 79516, Dec. 30, 2002]



PART 1320_CONTROLLING PAPERWORK BURDENS ON THE PUBLIC--Table of Contents

Sec.
1320.1 Purpose.
1320.2 Effect.
1320.3 Definitions.
1320.4 Coverage.
1320.5 General requirements.
1320.6 Public protection.
1320.7 Agency head and Senior Official responsibilities.
1320.8 Agency collection of information responsibilities.
1320.9 Agency certifications for proposed collections of information.
1320.10 Clearance of collections of information, other than those 
          contained in proposed rules or in current rules.
1320.11 Clearance of collections of information in proposed rules.
1320.12 Clearance of collections of information in current rules.
1320.13 Emergency processing.
1320.14 Public access.
1320.15 Independent regulatory agency override authority.
1320.16 Delegation of approval authority.
1320.17 Information collection budget.
1320.18 Other authority.

Appendix A to Part 1320--Agencies With Delegated Review and Approval 
          Authority

    Authority: 31 U.S.C. Sec. 1111 and 44 U.S.C. Chs. 21, 25, 27, 29, 
31, 35.

    Source: 60 FR 44984, Aug. 29, 1995, unless otherwise noted.



Sec. 1320.1  Purpose.

    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

[[Page 153]]

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.



Sec. 1320.2  Effect.

    (a) Except as provided in paragraph (b) of this section, this part 
takes effect on October 1, 1995.
    (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:
    (i) The date of the first extension of approval for or modification 
of that collection of information after September 30, 1995; or
    (ii) The date of the expiration of the OMB control number after 
September 30, 1995.
    (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.



Sec. 1320.3  Definitions.

    For purposes of implementing the Act and this Part, the following 
terms are defined as follows:
    (a) Agency 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:
    (1) The General Accounting Office;
    (2) Federal Election Commission;
    (3) The governments of the District of Columbia and the territories 
and possessions of the United States, and their various subdivisions; or
    (4) Government-owned contractor-operated facilities, including 
laboratories engaged in national defense research and production 
activities.
    (b)(1) Burden 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:
    (i) Reviewing instructions;
    (ii) Developing, acquiring, installing, and utilizing technology and 
systems for the purpose of collecting, validating, and verifying 
information;
    (iii) Developing, acquiring, installing, and utilizing technology 
and systems for the purpose of processing and maintaining information;
    (iv) Developing, acquiring, installing, and utilizing technology and 
systems for the purpose of disclosing and providing information;
    (v) Adjusting the existing ways to comply with any previously 
applicable instructions and requirements;
    (vi) Training personnel to be able to respond to a collection of 
information;
    (vii) Searching data sources;
    (viii) Completing and reviewing the collection of information; and
    (ix) Transmitting, or otherwise disclosing the information.
    (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.
    (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.
    (c) Collection of information means, except as provided in Sec. 
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''

[[Page 154]]

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.
    (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.
    (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.
    (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.
    (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.
    (i) Any recordkeeping, reporting, or disclosure requirement 
contained in a rule of general applicability is deemed to involve ten or 
more persons.
    (ii) Any collection of information addressed to all or a substantial 
majority of an industry is presumed to involve ten or more persons.
    (d) Conduct or Sponsor. 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:

[[Page 155]]

    (1) The recipient of a grant is conducting the collection of 
information at the specific request of the agency; or
    (2) The terms and conditions of the grant require specific approval 
by the agency of the collection of information or collection procedures.
    (e) Director means the Director of OMB, or his or her designee.
    (f) Display means:
    (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;
    (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;
    (3) In the case of collections of information published in 
regulations, guidelines, and other issuances in the Federal Register, to 
publish the currently valid OMB control number in the Federal Register 
(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 
Federal Register 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.
    (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.
    (g) Independent regulatory agency 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.
    (h) Information 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'':
    (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

[[Page 156]]

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);
    (2) Samples of products or of any other physical objects;
    (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;
    (4) Facts or opinions submitted in response to general solicitations 
of comments from the public, published in the Federal Register 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;
    (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;
    (6) A request for facts or opinions addressed to a single person;
    (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;
    (8) Facts or opinions obtained or solicited at or in connection with 
public hearings or meetings;
    (9) Facts or opinions obtained or solicited through nonstandardized 
follow-up questions designed to clarify responses to approved 
collections of information; and
    (10) Like items so designated by OMB.
    (i) OMB refers to the Office of Management and Budget.
    (j) Penalty 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.
    (k) Person 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;
    (l) Practical utility 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 
Sec. 1320.3(c)(3)), ``practical utility'' means that actual uses can be 
demonstrated.
    (m) Recordkeeping requirement means a requirement imposed by or for 
an agency on persons to maintain specified records, including a 
requirement to:
    (1) Retain such records;
    (2) Notify third parties, the Federal government, or the public of 
the existence of such records;
    (3) Disclose such records to third parties, the Federal government, 
or the public; or

[[Page 157]]

    (4) Report to third parties, the Federal government, or the public 
regarding such records.



Sec. 1320.4  Coverage.

    (a) The requirements of this part apply to all agencies as defined 
in Sec. 1320.3(a) and to all collections of information conducted or 
sponsored by those agencies, as defined in Sec. 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:
    (1) During the conduct of a Federal criminal investigation or 
prosecution, or during the disposition of a particular criminal matter;
    (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;
    (3) By compulsory process pursuant to the Antitrust Civil Process 
Act and section 13 of the Federal Trade Commission Improvements Act of 
1980; or
    (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.
    (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.
    (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.



Sec. 1320.5  General requirements.

    (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--
    (1) The agency has--
    (i) Conducted the review required in Sec. 1320.8;
    (ii) Evaluated the public comments received under Sec. 1320.8(d) 
and Sec. 1320.11;
    (iii) Submitted to the Director, in accordance with such procedures 
and in such form as OMB may specify,
    (A) The certification required under Sec. 1320.9,
    (B) The proposed collection of information in accordance with Sec. 
1320.10, Sec. 1320.11, or Sec. 1320.12, as appropriate,
    (C) An explanation for the decision that it would not be 
appropriate, under Sec. 1320.8(b)(1), for a proposed collection of 
information to display an expiration date;
    (D) An explanation for a decision to provide for any payment or gift 
to respondents, other than remuneration of contractors or grantees;
    (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;
    (F) A summary of the public comments received under Sec. 1320.8(d), 
including actions taken by the agency in response to the comments, and 
the date and page of the publication in the Federal Register of the 
notice therefor; and
    (G) Copies of pertinent statutory authority, regulations, and such 
related supporting materials as OMB may request; and
    (iv) Published, except as provided in Sec. 1320.13(d), a notice in 
the Federal Register--
    (A) Stating that the agency has made such submission; and
    (B) Setting forth--
    (1) A title for the collection of information;

[[Page 158]]

    (2) A summary of the collection of information;
    (3) A brief description of the need for the information and proposed 
use of the information;
    (4) A description of the likely respondents, including the estimated 
number of likely respondents, and proposed frequency of response to the 
collection of information;
    (5) An estimate of the total annual reporting and recordkeeping 
burden that will result from the collection of information;
    (6) Notice that comments may be submitted to OMB; and
    (7) 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 Sec. 
1320.10, Sec. 1320.11 or Sec. 1320.12, the agency plans to request or 
has requested OMB to conduct its review on an emergency basis under 
Sec. 1320.13; and
    (2) OMB has approved the proposed collection of information, OMB's 
approval has been inferred under Sec. 1320.10(c), Sec. 1320.11(i), or 
Sec. 1320.12(e), or OMB's disapproval has been voided by an independent 
regulatory agency under Sec. 1320.15; and
    (3) The agency has obtained from the Director a control number to be 
displayed upon the collection of information.
    (b) In addition to the requirements in paragraph (a) of this 
section, an agency shall not conduct or sponsor a collection of 
information unless:
    (1) The collection of information displays a currently valid OMB 
control number; and
    (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.
    (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.
    (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.
    (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.
    (C) In the case of collections of information published in 
regulations, guidelines, and other issuances in the Federal Register, 
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 Federal 
Register (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 Federal Register as a separate notice 
or in the preamble for the final rule (rather than in the regulatory 
text for

[[Page 159]]

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 Sec. 1320.3(f)(3)).
    (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.
    (c)(1) Agencies shall submit all collections of information, other 
than those contained in proposed rules published for public comment in 
the Federal Register or in current regulations that were published as 
final rules in the Federal Register, in accordance with the requirements 
in Sec. 1320.10. Agencies shall submit collections of information 
contained in interim final rules or direct final rules in accordance 
with the requirements of Sec. 1320.10.
    (2) Agencies shall submit collections of information contained in 
proposed rules published for public comment in the Federal Register in 
accordance with the requirements in Sec. 1320.11.
    (3) Agencies shall submit collections of information contained in 
current regulations that were published as final rules in the Federal 
Register in accordance with the requirements in Sec. 1320.12.
    (4) Special rules for emergency processing of collections of 
information are set forth in Sec. 1320.13.
    (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.
    (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:
    (i) Is the least burdensome necessary for the proper performance of 
the agency's functions to comply with legal requirements and achieve 
program objectives;
    (ii) Is not duplicative of information otherwise accessible to the 
agency; and
    (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.
    (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--
    (i) Requiring respondents to report information to the agency more 
often than quarterly;
    (ii) Requiring respondents to prepare a written response to a 
collection of information in fewer than 30 days after receipt of it;
    (iii) Requiring respondents to submit more than an original and two 
copies of any document;
    (iv) Requiring respondents to retain records, other than health, 
medical, government contract, grant-in-aid, or tax records, for more 
than three years;
    (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;
    (vi) Requiring the use of a statistical data classification that has 
not been reviewed and approved by OMB;
    (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
    (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.
    (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

[[Page 160]]

this section, and will consider whether the burden of the collection of 
information is justified by its practical utility. In addition:
    (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
    (2) OMB will consider necessary any collection of information 
specifically required by an agency rule approved or not acted upon by 
OMB under Sec. 1320.11 or Sec. 1320.12, but will independently assess 
any such collection of information to the extent that it deviates from 
the specifications of the rule.
    (f) Except as provided in Sec. 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.
    (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.
    (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).



Sec. 1320.6  Public protection.

    (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:
    (1) The collection of information does not display, in accordance 
with Sec. 1320.3(f) and Sec. 1320.5(b)(1), a currently valid OMB 
control number assigned by the Director in accordance with the Act; or
    (2) The agency fails to inform the potential person who is to 
respond to the collection of information, in accordance with Sec. 
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.
    (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.
    (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 Sec. 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.
    (1) If OMB disapproves the whole of such a collection of information 
(and the disapproval is not overridden under Sec. 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.
    (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 Sec. 1320.15), the agency shall permit respondents to 
prove or satisfy the condition by complying with the collection of 
information as so changed.
    (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

[[Page 161]]

other person through administrative or judicial process.
    (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. Sec. 6011(a) (statutory requirement for person 
to file a tax return), 42 U.S.C. Sec. 6938(c) (statutory requirement 
for person to provide notification before exporting hazardous waste).



Sec. 1320.7  Agency head and Senior Official responsibilities.

    (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.
    (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.
    (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.
    (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.
    (e) Agency submissions of collections of information for OMB review, 
and the accompanying certifications under Sec. 1320.9, may be made only 
by the agency head or the Senior Official, or their designee.



Sec. 1320.8  Agency collection of information responsibilities.

    The office established under Sec. 1320.7 shall review each 
collection of information before submission to OMB for review under this 
part.
    (a) This review shall include:
    (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;
    (2) A functional description of the information to be collected;
    (3) A plan for the collection of information;
    (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;
    (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;
    (6) A test of the collection of information through a pilot program, 
if appropriate; and
    (7) A plan for the efficient and effective management and use of the 
information to be collected, including necessary resources.
    (b) Such office shall ensure that each collection of information:
    (1) Is inventoried, displays a currently valid OMB control number, 
and, if appropriate, an expiration date;
    (2) Is reviewed by OMB in accordance with the clearance requirements 
of 44 U.S.C. Sec. 3507; and
    (3) Informs and provides reasonable notice to the potential persons 
to whom the collection of information is addressed of--
    (i) The reasons the information is planned to be and/or has been 
collected;
    (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;

[[Page 162]]

    (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);
    (iv) Whether responses to the collection of information are 
voluntary, required to obtain or retain a benefit (citing authority), or 
mandatory (citing authority);
    (v) The nature and extent of confidentiality to be provided, if any 
(citing authority); and
    (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.
    (c)(1) An agency shall provide the information described in 
paragraphs (b)(3)(i) through (v) of this section as follows:
    (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.
    (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;
    (iii) In the case of collections of information published in 
regulations, guidelines, and other issuances in the Federal Register, 
such information can be published in the Federal Register (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).
    (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.
    (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 Sec. 1320.5(b)(2)(ii)).
    (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 Federal 
Register, and otherwise consult with members of the public and affected 
agencies concerning each proposed collection of information, to solicit 
comment to:
    (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;
    (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;
    (iii) Enhance the quality, utility, and clarity of the information 
to be collected; and
    (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.
    (2) If the agency does not publish a copy of the proposed collection 
of information, together with the related instructions, as part of the 
Federal Register notice, the agency should--
    (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
    (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.

[[Page 163]]

    (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 Sec. 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.
    (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 Sec. 1320.13.



Sec. 1320.9  Agency certifications for proposed collections of information.

    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--
    (a) Is necessary for the proper performance of the functions of the 
agency, including that the information to be collected will have 
practical utility;
    (b) Is not unnecessarily duplicative of information otherwise 
reasonably accessible to the agency;
    (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:
    (1) Establishing differing compliance or reporting requirements or 
timetables that take into account the resources available to those who 
are to respond;
    (2) The clarification, consolidation, or simplification of 
compliance and reporting requirements; or
    (3) An exemption from coverage of the collection of information, or 
any part thereof;
    (d) Is written using plain, coherent, and unambiguous terminology 
and is understandable to those who are to respond;
    (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;
    (f) Indicates for each recordkeeping requirement the length of time 
persons are required to maintain the records specified;
    (g) Informs potential respondents of the information called for 
under Sec. 1320.8(b)(3);
    (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;
    (i) Uses effective and efficient statistical survey methodology 
appropriate to the purpose for which the information is to be collected; 
and
    (j) To the maximum extent practicable, uses appropriate information 
technology to reduce burden and improve data quality, agency efficiency 
and responsiveness to the public.



Sec. 1320.10  Clearance of collections of information, other than those contained in proposed rules or in current rules.

    Agencies shall submit all collections of information, other than 
those contained either in proposed rules published for public comment in 
the Federal Register (which are submitted under Sec. 1320.11) or in 
current rules that were published as final rules in the Federal Register 
(which are submitted under Sec. 1320.12), in accordance with the 
following requirements:
    (a) On or before the date of submission to OMB, the agency shall, in 
accordance with the requirements in Sec. 1320.5(a)(1)(iv), forward a 
notice to the Federal Register 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

[[Page 164]]

copy of the notice submitted to the Federal Register, together with the 
date of expected publication, shall be included in the agency's 
submission to OMB.
    (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 Sec. 
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.
    (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.
    (d) As provided in Sec. 1320.5(b) and Sec. 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.
    (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:
    (i) Conduct the review established under Sec. 1320.8, including the 
seeking of public comment under Sec. 1320.8(d); and
    (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.
    (2) The agency may continue to conduct or sponsor the collection of 
information while the submission is pending at OMB.
    (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.
    (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 Federal Register to that effect.



Sec. 1320.11  Clearance of collections of information in proposed rules.

    Agencies shall submit collections of information contained in 
proposed rules published for public comment in the Federal Register in 
accordance with the following requirements:
    (a) The agency shall include, in accordance with the requirements in 
Sec. 1320.5(a)(1)(iv) and Sec. 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].
    (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 Federal

[[Page 165]]

Register, 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.
    (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.
    (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.
    (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 Sec. 1320.13.
    (f) When the final rule is published in the Federal Register, 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.
    (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 Federal Register, OMB may assign an OMB control number prior to 
publication of the final rule.
    (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:
    (1) The agency has failed to comply with paragraph (b) of this 
section;
    (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
    (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.
    (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.
    (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.
    (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 
Federal Register to inform the public of OMB's decision.

[[Page 166]]

    (l) As provided in Sec. 1320.5(b) and Sec. 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.



Sec. 1320.12  Clearance of collections of information in current rules.

    Agencies shall submit collections of information contained in 
current rules that were published as final rules in the Federal Register 
in accordance with the following procedures:
    (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:
    (1) Conduct the review established under Sec. 1320.8, including the 
seeking of public comment under Sec. 1320.8(d); and
    (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.
    (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:
    (i) Conduct the review established under Sec. 1320.8, including the 
seeking of public comment under Sec. 1320.(8)(d); and
    (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.
    (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 Sec. 1320.3(f) and Sec. 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.
    (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 Sec. 1320.5(a)(1)(iv), forward a notice to 
the Federal Register 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 Federal Register, together with the date of 
expected publication, shall be included in the agency's submission to 
OMB.
    (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 Sec. 1320.13.
    (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

[[Page 167]]

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.
    (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.
    (3) As provided in Sec. 1320.5(b) and Sec. 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.
    (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:
    (i) Publish an explanation thereof in the Federal Register; and
    (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 Sec. 
1320.10 or Sec. 1320.11, as appropriate; and
    (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 Sec. 1320.10 or 
Sec. 1320.11, as appropriate.
    (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 Federal Register. 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 Federal Register and submission to OMB 
shall initiate OMB clearance procedures under section 3507(d) of the Act 
and Sec. 1320.11. All procedures shall be completed within a reasonable 
period of time to be determined by OMB in consultation with the agency.
    (g) OMB may disapprove, in whole or in part, any collection of 
information subject to the procedures of this section, if the agency:
    (1) Has refused within a reasonable time to comply with an OMB 
instruction to submit the collection of information for review;
    (2) Has refused within a reasonable time to initiate procedures to 
change the collection of information; or
    (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.
    (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.
    (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

[[Page 168]]

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.
    (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.



Sec. 1320.13  Emergency processing.

    An agency head or the Senior Official, or their designee, may 
request OMB to authorize emergency processing of submissions of 
collections of information.
    (a) Any such request shall be accompanied by a written determination 
that:
    (1) The collection of information:
    (i) Is needed prior to the expiration of time periods established 
under this Part; and
    (ii) Is essential to the mission of the agency; and
    (2) The agency cannot reasonably comply with the normal clearance 
procedures under this part because:
    (i) Public harm is reasonably likely to result if normal clearance 
procedures are followed;
    (ii) An unanticipated event has occurred; or
    (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.
    (b) The agency shall state the time period within which OMB should 
approve or disapprove the collection of information.
    (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.
    (d) The agency shall set forth in the Federal Register notice 
prescribed by Sec. 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.
    (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.
    (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.



Sec. 1320.14  Public access.

    (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.
    (b) Agencies shall provide copies of the material submitted to OMB 
for review promptly upon request by any person.
    (c) Any person may request OMB to review any collection of 
information

[[Page 169]]

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:
    (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
    (2) Take appropriate remedial action, if necessary.



Sec. 1320.15  Independent regulatory agency override authority.

    (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:
    (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
    (2) An exercise of authority under Sec. 1320.10(g) concerning such 
agency.
    (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 Sec. 1320.5(b) and Sec. 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.



Sec. 1320.16  Delegation of approval authority.

    (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.
    (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:
    (1) Is sufficiently independent of program responsibility to 
evaluate fairly whether proposed collections of information should be 
approved;
    (2) Has sufficient resources to carry out this responsibility 
effectively; and
    (3) Has established an agency review process that demonstrates the 
prompt, efficient, and effective performance of collection of 
information review responsibilities.
    (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.
    (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:
    (1) Board of Governors of the Federal Reserve System; and
    (2) Managing Director of the Federal Communications Commission.



Sec. 1320.17  Information collection budget.

    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.

[[Page 170]]



Sec. 1320.18  Other authority.

    (a) OMB shall determine whether any collection of information or 
other matter is within the scope of the Act, or this Part.
    (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.
    (c) Each agency is responsible for complying with the information 
policies, principles, standards, and guidelines prescribed by OMB under 
this Act.
    (d) To the extent permitted by law, OMB may waive any requirements 
contained in this part.
    (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.



    Sec. Appendix A to Part 1320--Agencies With Delegated Review and 
                           Approval Authority

         1. The Board of Governors of the Federal Reserve System

    (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.
    (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:
    (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.
    (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 Federal Register 
notices specified in paragraph (1)(3)(i) of this section 1.
    (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.
    (2) The Board may ask that OMB review and approve collections of 
information covered by this delegation.
    (3) In exercising delegated authority, the Board will:
    (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 
Federal Register 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 Federal Register 
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.
    (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.
    (B) At the earliest practical date after approving the temporary 
extension to the collection of information, the Board will publish a 
Federal Register 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 Federal Register soliciting public 
comment on the intention to extend the collection of information for a 
period not to exceed three years.
    (ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve Board 
with a copy of the Board's Federal Register notice not later than the 
day the Board files the notice with the Office of the Federal Register.
    (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

[[Page 171]]

the review has not been completed prior to 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.
    (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.
    (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.
    (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.
    (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.
    (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 Federal Register 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.
    (b) OMB will:
    (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.
    (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.
    (3) Review any collection of information referred by the Board in 
accordance with the provisions of section 1(a)(2) of this Appendix.
    (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.
    (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 Federal Register notices and 
generally only if:
    (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;
    (2) There is substantial public objection to a proposed information 
collection: or
    (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 Federal Register notice provided for in section 1(a)(3)(i) of this 
Appendix.
    (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.

    2. The Managing Director of the Federal Communications Commission

    (a) Authority to review and approve currently valid (OMB-approved) 
collections of

[[Page 172]]

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.
    (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.
    (2) The Managing Director may ask that OMB review and approve 
collections of information covered by the delegation.
    (3) In exercising delegated authority, the Managing Director will:
    (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 Federal Register 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.
    (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.
    (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 Federal Register notice 
soliciting public comment on its intention to extend the collection of 
information for a period not to exceed three years.
    (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.
    (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.
    (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.
    (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.
    (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.
    (b) OMB will:
    (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.
    (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.
    (3) Periodically assess, at its discretion, the Commission's 
paperwork review process as administered under the delegation. The

[[Page 173]]

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.
    (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.

[[Page 174]]



 SUBCHAPTER C_JOINT REGULATIONS WITH THE OFFICE OF PERSONNEL MANAGEMENT


PART 1330_HUMAN RESOURCES MANAGEMENT--Table of Contents

Subparts A-C [Reserved]

     Subpart D_Performance Appraisal Certification for Pay Purposes

Sec.
1330.401 Purpose.
1330.402 Definitions.
1330.403 System certification.
1330.404 Certification criteria.
1330.405 Procedures for certifying agency appraisal systems.

    Authority: 5 U.S.C. 5307(d).

    Source: 69 FR 45550, 45551, July 29, 2004, unless otherwise noted.

Subparts A-C [Reserved]



     Subpart D_Performance Appraisal Certification for Pay Purposes

    Note to Subpart D: Regulations identical to this subpart appear at 5 
CFR part 430, subpart D.



Sec. 1330.401  Purpose.

    (a) This subpart implements 5 U.S.C. 5307(d), as added by section 
1322 of the Chief Human Capital Officers Act of 2002 (Title XIII of 
Public Law 107-296, the Homeland Security Act of 2002; November 25, 
2002), which provides a higher aggregate limitation on pay for certain 
members of the Senior Executive Service (SES) under 5 U.S.C. 5382 and 
5383 and employees in senior-level (SL) and scientific or professional 
(ST) positions paid under 5 U.S.C. 5376. In addition, this subpart is 
necessary to administer rates of basic pay for members of the SES under 
5 U.S.C. 5382, as amended by section 1125 of the National Defense 
Authorization Act for Fiscal Year 2004. The regulations in this subpart 
strengthen the application of pay-for-performance principles to senior 
executives and senior professionals. Specifically, the statutory 
provisions authorize an agency to apply a higher maximum rate of basic 
pay for senior executives (consistent with 5 CFR part 534, subpart D, 
when effective) and apply a higher aggregate limitation on pay 
(consistent with 5 CFR part 530, subpart B) to its senior employees, but 
only after OPM, with OMB concurrence, has certified that the design and 
application of the agency's appraisal systems for these employees make 
meaningful distinctions based on relative performance. This subpart 
establishes the certification criteria and procedures that OPM will 
apply in considering agency requests for such certification.
    (b) Senior executives generally may receive an annual rate of basic 
pay up to the rate for level III of the Executive Schedule under 5 
U.S.C. 5382 and 5 CFR part 534, subpart D, when effective. Senior 
employees generally may receive total compensation in a calendar year up 
to the rate for level I of the Executive Schedule under 5 U.S.C. 5307(a) 
and 5 CFR 530.203(a). Only employees covered by an appraisal system that 
OPM, with OMB concurrence, certifies under this subpart are eligible for 
a maximum annual rate of basic pay for senior executives up to the rate 
for level II of the Executive Schedule (consistent with 5 U.S.C. 5382 
and 5 CFR part 534, subpart D, when effective) and a higher aggregate 
pay limitation equivalent to the total annual compensation payable to 
the Vice President (consistent with 5 U.S.C. 5307(d) and 5 CFR 
530.203(b)).



Sec. 1330.402  Definitions.

    In this subpart--
    Appraisal system means the policies, practices, and procedures an 
agency establishes under 5 U.S.C. chapter 43 and 5 CFR part 430, 
subparts B and C, or other applicable legal authority, for planning, 
monitoring, developing, evaluating, and rewarding employee performance. 
This includes appraisal systems and appraisal programs as defined at 
Sec. 430.203 and performance management systems as defined at Sec. 
430.303.
    GPRA means the Government Performance and Results Act of 1993.

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    OMB means the Office of Management and Budget.
    OPM means the Office of Personnel Management.
    Outstanding performance means performance that substantially exceeds 
the normally high performance expected of any senior employee, as 
evidenced by exceptional accomplishments or contributions to the 
agency's performance.
    Performance evaluation means the comparison of the actual 
performance of senior employees against their performance expectations 
and may take into account their contribution to agency performance, 
where appropriate.
    Performance expectations means critical and other performance 
elements and performance requirements that constitute the senior 
executive performance plans (as defined in Sec. 430.303) established 
for senior executives, the performance elements and standards that 
constitute the performance plans (as defined in Sec. 430.203) 
established for senior professionals, or other appropriate means 
authorized under performance appraisal systems not covered by 5 U.S.C. 
chapter 43 for communicating what a senior employee is expected to do 
and the manner in which he/she is expected to do it, and may include 
contribution to agency performance, where appropriate.
    Program performance measures means results-oriented measures of 
performance, whether at the agency, component, or function level, which 
include, for example, measures under the Government Performance and 
Results Act.
    PRB means Performance Review Board, as described at Sec. 430.310.
    Relative performance means the performance of a senior employee with 
respect to the performance of other senior employees, including their 
contribution to agency performance, where appropriate, as determined by 
the application of a certified appraisal system.
    Senior employee means a senior executive or a senior professional.
    Senior executive means a member of the Senior Executive Service 
(SES) paid under 5 U.S.C. 5383.
    Senior professional means an employee in a senior-level (SL) or 
scientific or professional position (ST) paid under 5 U.S.C. 5376.



Sec. 1330.403  System certification.

    (a) The performance appraisal system(s) covering senior employees 
must be certified by OPM, with OMB concurrence, as making meaningful 
distinctions based on relative performance before an agency may apply a 
maximum annual rate of basic pay for senior executives equal to the rate 
for level II of the Executive Schedule or apply an annual aggregate 
limitation on payments to senior employees equal to the salary of the 
Vice President under 5 U.S.C. 5307(d)). OPM, with OMB concurrence, will 
certify an agency's appraisal system(s) only when a review of that 
system's design, application, and administration reveals that the agency 
meets the certification criteria established in Sec. 1330.404 and has 
followed the procedures for certifying agency appraisal systems in Sec. 
1330.405.
    (b) Except as provided in paragraph (c) of this section, agencies 
subject to 5 U.S.C. chapter 43 and 5 CFR part 430 seeking certification 
of their appraisal systems must submit systems that have been approved 
by OPM under Sec. 430.312 or Sec. 430.210, as applicable. In some 
agencies, the performance appraisal system(s) covers employees in many 
organizations and/or components, and their ability to meet the 
certification criteria in Sec. 1330.404 may vary significantly. In such 
cases, an agency may establish and/or submit separate performance 
appraisal systems for each of these distinct organizations and/or 
components to ensure timely certification of those performance appraisal 
system(s) that meet the criteria. New appraisal systems established 
under 5 CFR part 430, subpart B or C, as applicable based on the 
employees covered, must be approved by OPM.
    (c) When an agency establishes a new appraisal system for the 
purpose of seeking certification under this subpart, the agency may 
submit that system for certification even if it has not yet been 
approved by OPM under Sec. 430.312 or Sec. 430.210, as applicable. OPM 
will certify, with OMB concurrence, only those systems that OPM 
determines meet the approval requirements

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of 5 CFR part 430, subpart B or C, as applicable.
    (d) An agency must establish an appraisal system(s), as defined in 
Sec. 1330.402, for its senior professionals that meets the requirements 
of 5 CFR part 430, subpart B, and is separate from the system(s) 
established to cover its SES members under 5 CFR part 430, subpart C. 
For the purpose of certification under this subpart, such senior 
professional appraisal system(s) must meet the certification criteria 
set forth in Sec. 1330.404. At its discretion, an agency may include 
system features in its senior professional appraisal system(s) that are 
the same as, or similar to, the features of its SES appraisal system(s), 
as appropriate, including procedures that correspond to the higher level 
review procedures under Sec. 430.308(b) and PRB reviews of summary 
ratings under Sec. 430.308(c).
    (e) For agencies subject to 5 U.S.C. chapter 43 and 5 CFR part 430, 
OPM approval of the agency performance appraisal system(s) is a 
prerequisite to certification. Agencies not subject to the appraisal 
provisions of 5 U.S.C. chapter 43 and 5 CFR part 430 and which are 
seeking certification of their appraisal system(s) under this subpart 
must submit appropriate documentation to demonstrate that each system 
complies with the appropriate legal authority that governs the 
establishment, application, and administration of that system.



Sec. 1330.404  Certification criteria.

    (a) To be certified, an agency's applicable appraisal system(s) for 
senior executives or senior professionals must make meaningful 
distinctions based on relative performance and meet the other 
requirements of 5 U.S.C. chapter 43, as applicable, in addition to the 
particular criterion cited here (i.e., consultation). Such system(s) 
must provide for the following:
    (1) Alignment, so that the performance expectations for individual 
senior employees derive from, and clearly link to, the agency's mission, 
GPRA strategic goals, program and policy objectives, and/or annual 
performance plans and budget priorities;
    (2) Consultation, so that the performance expectations for senior 
employees meet the requirements of 5 CFR part 430, subparts B and C, as 
applicable, and/or other applicable legal authority; are developed with 
the input and involvement of the individual senior employees who are 
covered thereby; and are communicated to them at the beginning of the 
applicable appraisal period, and/or at appropriate times thereafter;
    (3) Results, so that the performance expectations for individual 
senior employees apply to their respective areas of responsibility; 
reflect expected agency and/or organizational outcomes and outputs, 
performance targets or metrics, policy/program objectives, and/or 
milestones; identify specific programmatic crosscutting, external, and 
partnership-oriented goals or objectives, as applicable; and are stated 
in terms of observable, measurable, and/or demonstrable performance;
    (4) Balance, so that in addition to expected results, the 
performance expectations for individual senior employees include 
appropriate measures or indicators of employee and/or customer/
stakeholder feedback; quality, quantity, timeliness, and cost 
effectiveness, as applicable; and those technical, leadership and/or 
managerial competencies or behaviors that contribute to and are 
necessary to distinguish outstanding performance;
    (5) Appropriate assessments of the agency's performance--overall and 
with respect to each of its particular missions, components, programs, 
policy areas, and support functions--such as reports of the agency's 
GPRA goals, annual performance plans and targets, program performance 
measures, and other appropriate indicators, as well as evaluation 
guidelines based, in part, upon those assessments, that are communicated 
by the agency head, or an individual specifically designated by the 
agency head for such purpose, to senior employees, appropriate senior 
employee rating and reviewing officials, and PRB members. These 
assessments and guidelines are to be provided at the conclusion of the 
appraisal period but before individual senior employee performance 
ratings are recommended, so that they may serve as a basis for 
individual performance evaluations, as appropriate. The guidance

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provided may not take the form of quantitative limitations on the number 
of ratings at any given rating level, and must conform to 5 CFR part 
430, subpart B or C, as applicable;
    (6) Oversight by the agency head or the individual specifically 
designated under paragraph (a)(5) of this section, who certifies, for a 
particular senior employee appraisal system, that--
    (i) The senior employee appraisal process makes meaningful 
distinctions based on relative performance;
    (ii) The results of the senior employee appraisal process take into 
account, as appropriate, the agency's assessment of its performance 
against program performance measures, as well as other relevant 
considerations; and
    (iii) Pay adjustments, cash awards, and levels of pay based on the 
results of the appraisal process accurately reflect and recognize 
individual performance and/or contribution to the agency's performance;
    (7) Accountability, so that final agency head decisions and any PRB 
recommendations regarding senior employee ratings consistent with 5 CFR 
part 430, subparts B and C, individually and overall, appropriately 
reflect the employee's performance expectations, relevant program 
performance measures, and such other relevant factors as the PRB may 
find appropriate; in the case of supervisory senior employees, ratings 
must reflect the degree to which performance standards, requirements, or 
expectations for individual subordinate employees clearly link to 
organizational mission, GPRA strategic goals, or other program or policy 
objectives and take into account the degree of rigor in the appraisal of 
their subordinate employees;
    (8) Performance differentiation, so that the system(s) includes at 
least one summary level of performance above fully successful, including 
a summary level that reflects outstanding performance, as defined in 
Sec. 1330.402, and so that its annual administration results in 
meaningful distinctions based on relative performance that take into 
account the assessment of the agency's performance against relevant 
program performance measures, as described in paragraph (a)(6) of this 
section, employee performance expectations, and such other relevant 
factors as may be appropriate. Relative performance does not require 
ranking senior employees against each other; such ranking is prohibited 
for the purpose of determining performance ratings. For equivalent 
systems that do not use summary ratings, the appraisal system must 
provide for clear differentiation of performance at the outstanding 
level; and
    (9) Pay differentiation, so that those senior employees who have 
demonstrated the highest levels of individual performance and/or 
contribution to the agency's performance receive the highest annual 
summary ratings or ratings of record, as applicable, as well as the 
largest corresponding pay adjustments, cash awards, and levels of pay, 
particularly above the rate for level III of the Executive Schedule. 
Agencies must provide for transparency in the processes for making pay 
decisions, while assuring confidentiality.
    (b) Consistent with the requirements in section 3(a) of the 
Inspector General Act of 1978, an agency's Inspector General or an 
official he or she designates must perform the functions listed in 
paragraphs (a)(5) and (6) of this section for senior employees in the 
Office of the Inspector General.



Sec. 1330.405  Procedures for certifying agency appraisal systems.

    (a) General. To receive system certification, an agency must provide 
documentation demonstrating that its appraisal system(s), in design, 
application, and administration, meets the certification criteria in 
Sec. 1330.404 as well as the procedural requirements set forth in this 
section.
    (b) Certification requests. In order for an agency's appraisal 
system to be certified, the head of the agency or designee must submit a 
written request for full or provisional certification of its appraisal 
system(s) to OPM. Certification requests may cover an agencywide system 
or a system that applies to one or more agency organizations or 
components and must include--
    (1) A full description of the appraisal system(s) to be certified, 
including--
    (i) Organizational and employee coverage information;

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    (ii) Applicable administrative instructions and implementing 
guidance; and
    (iii) The system's use of rating levels that are capable of clearly 
differentiating among senior employees based on appraisals of their 
relative performance against performance expectations in any given 
appraisal period reflecting performance evaluation results that make 
meaningful distinctions based on relative performance, and which 
include--
    (A) For the agency's senior executives covered by 5 CFR part 430, 
subpart C, at least four, but not more than five, summary rating 
levels--an outstanding level, a fully successful level, an optional 
level between outstanding and fully successful, a minimally satisfactory 
level, and an unsatisfactory level;
    (B) For the agency's senior professionals covered by 5 CFR part 430, 
subpart B, at least three, but not more than five, summary levels--an 
outstanding level, a fully successful level, an optional level between 
outstanding and fully successful, an unacceptable level, and an optional 
level between fully successful and unacceptable; and
    (C) For agencies not subject to 5 CFR part 430, subparts B and C, a 
summary rating level that reflects outstanding performance or a 
methodology that clearly differentiates outstanding performance, as 
defined in Sec. 1330.402;
    (2) A clearly defined process for reviewing--
    (i) The initial summary ratings and ratings of record, as 
applicable, of senior employees to ensure that annual summary ratings or 
ratings of record are not distributed arbitrarily or on a rotational 
basis, and
    (ii) In the case of senior employees with supervisory 
responsibilities--
    (A) The performance standards, requirements, or expectations for the 
employees they supervise to ensure that they clearly link to 
organizational mission, GPRA strategic goals, or other program and 
policy objectives, as appropriate, and
    (B) The performance standards, requirements, or expectations and the 
performance ratings of the employees they supervise to ensure that they 
reflect distinctions in individual and organizational performance, as 
appropriate;
    (3) Documentation showing that the appraisal system(s) meets the 
applicable certification criteria, as follows:
    (i) For provisional certification, the requirements in Sec. 
1330.404(a)(1)-(4); and
    (ii) For full certification, all of the requirements in Sec. 
1330.404.
    (4) For full certification, data on senior executive annual summary 
ratings and senior professional ratings of record, as applicable (or 
other documentation for agencies that do not use summary ratings), for 
the two appraisal periods preceding the request, as well as 
corresponding pay adjustments, cash awards, and levels of pay provided 
to those senior employees; and
    (5) Any additional information that OPM and OMB may require to make 
a determination regarding certification.
    (c) Certification actions. At the request of an agency, the Director 
of OPM, at his or her discretion and in accordance with the requirements 
of this subpart and with OMB concurrence, may grant full or provisional 
certification of the agency's appraisal system(s). OPM, with OMB 
concurrence, may--
    (1) Grant full certification of an agency's senior employee 
appraisal system(s) for 2 calendar years when an agency has demonstrated 
that it has designed and fully implemented and applied an appraisal 
system(s) for its senior executives or senior professionals, as 
applicable, that meets the certification criteria in Sec. 1330.404 and 
the documentation requirements of this section.
    (2) Grant provisional certification of an agency's senior employee 
appraisal system(s) for 1 calendar year when an agency has designed, but 
not yet fully implemented or applied, an appraisal system(s) for its 
senior executives or senior professionals, as applicable, that meets the 
certification criteria in Sec. 1330.404. OPM may extend provisional 
certification into the following calendar year in order to permit an 
agency to take any actions needed to adjust pay based on annual summary 
ratings, ratings of record, or other performance appraisal results 
determined during the

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calendar year for which the system was certified; or
    (3) Suspend certification under paragraph (h) of this section if, at 
any time during the certification period, OPM, with OMB concurrence, 
determines that the agency appraisal system is not in compliance with 
certification criteria.
    (d) Pay limitations. Absent full or provisional certification of its 
appraisal system(s), an agency must--
    (1) Set a senior executive's rate of basic pay at a rate that does 
not exceed the rate for level III of the Executive Schedule, consistent 
with 5 CFR part 534, subpart D, when effective; and
    (2) Limit aggregate compensation paid to senior employees in a 
calendar year to the rate for level I of the Executive Schedule, 
consistent with 5 CFR 530.203(b).
    (e) Full certification. (1) OPM, with OMB concurrence, may grant 
full certification when a review of the agency's request and 
accompanying documentation demonstrates that the design, application, 
and administration of the agency's appraisal system(s) meet the criteria 
in Sec. 1330.404 and the documentation requirements of this section.
    (2) An agency with a fully-certified appraisal system(s) may set the 
rate of basic pay under 5 CFR part 534, subpart D, when effective, for a 
senior executive covered by a certified system at a rate that does not 
exceed the rate for level II of the Executive Schedule and pay senior 
employees covered by certified system(s) aggregate compensation in a 
certified calendar year in an amount up to the Vice President's salary 
under 3 U.S.C. 104.
    (3) Full certification of an agency's appraisal system will be 
renewed automatically for an additional 2 calendar years, if--
    (i) The agency meets the annual reporting requirements in paragraph 
(g) of this section; and
    (ii) Based on those annual reports, OPM determines, and OMB concurs, 
that the appraisal system(s) continues to meet the certification 
criteria and procedural requirements set forth in this subpart.
    (f) Provisional certification. (1) OPM, with OMB concurrence, may 
grant provisional certification when the design of an agency's appraisal 
system(s) for senior executives or senior professionals, as applicable, 
meets the requirements set forth in this subpart, but insufficient 
documentation exists to determine whether the actual application and 
administration of the appraisal system(s) meet the requirements for full 
certification. OPM, with OMB concurrence, may grant provisional 
certification to an agency more than once.
    (2) During the 1-year period of provisional certification, an agency 
may set the rate of basic pay for a senior executive covered by the 
provisionally certified system at a rate that does not exceed the rate 
for level II of the Executive Schedule (consistent with 5 CFR part 534, 
subpart D, when effective) and pay senior employees covered by 
provisionally certified systems aggregate compensation in the certified 
calendar year in an amount up to the Vice President's salary under 3 
U.S.C. 104 (consistent with 5 CFR part 530, subpart B).
    (3) An agency must resubmit an application requesting provisional 
certification for every calendar year for which it intends to maintain 
provisional certification. An agency with a provisionally certified 
appraisal system(s) may request that OPM, with OMB concurrence, grant 
full certification upon a showing that its performance appraisal systems 
for senior executives and senior professionals, as applicable, meet the 
certification criteria in Sec. 1330.404 and the documentation 
requirements in this section, particularly with respect to the 
implementation and administration of the system(s) over at least two 
consecutive performance appraisal periods.
    (g) Annual reporting requirement. Agencies with certified appraisal 
systems must provide OPM with a general summary of the annual summary 
ratings and ratings of record, as applicable, and rates of basic pay, 
pay adjustments, cash awards, and aggregate total compensation 
(including any lump-sum payments in excess of the applicable aggregate 
limitation on pay that were paid in the current calendar year as 
required by Sec. 530.204) for their senior employees covered by a 
certified

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appraisal system at the conclusion of each appraisal period that ends 
during a calendar year for which the certification is in effect, in 
accordance with OPM instructions.
    (h) Suspension of certification. (1) When OPM determines that an 
agency's certified appraisal system is no longer in compliance with 
certification criteria, OPM, with OMB concurrence, may suspend such 
certification, as provided in paragraph (c)(3) of this section.
    (2) An agency's system certification is automatically suspended when 
OPM withdraws performance appraisal system approval or mandates 
corrective action because of misapplication of the system as authorized 
under Sec. Sec. 430.210(c), 430.312(c), and 1330.403(e).
    (3) OPM will notify the head of the agency at least 30 calendar days 
in advance of the suspension and the reason(s) for the suspension, as 
well as any expected corrective action. Upon such notice, and until its 
system certification is reinstated, the agency must set a senior 
executive's rate of basic pay under 5 CFR part 534, subpart D, when 
effective, at a rate that does not exceed the rate for level III of the 
Executive Schedule. While certification is suspended, an agency must 
limit aggregate compensation received in a calendar year by a senior 
employee to the rate for level I of the Executive Schedule. Pay 
adjustments, cash awards, and levels of pay in effect prior to that 
notice will remain in effect unless OPM finds that any such decision and 
subsequent action was in violation of law, rule, or regulation.
    (4) OPM, with OMB concurrence, may reinstate an agency's suspended 
certification only after the agency has taken appropriate corrective 
action.
    (5) OPM may reinstate the certification of an appraisal system that 
has been automatically suspended under paragraph (h)(2) of this section 
upon the agency's compliance with the applicable OPM-mandated corrective 
action(s).

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   CHAPTER V--THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD




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Part                                                                Page
1501            Operations of the International 
                    Organizations Employees Loyalty Board...         183

[[Page 183]]



PART 1501_OPERATIONS OF THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD--Table of Contents

Sec.
1501.1 Name.
1501.2 Officers.
1501.3 Duties of officers.
1501.4 Hearings.
1501.5 Panels of the Board.
1501.6 Quorum.
1501.7 Authority and responsibility of the Board.
1501.8 Grounds for determinations of the Board.
1501.9 Cases reviewable by the Board.
1501.10 Consideration of reports of investigation.
1501.11 Consideration of complete file before hearing.
1501.12 Obtaining further information.
1501.13 Conduct of hearings.
1501.14 Decision of the Board.
1501.15 Transmission of Determination to the Secretary of State.
1501.16 Notification of individual concerned.

    Authority: E.O. 10422, as amended; 3 CFR, 1949-1953 Comp., p. 921.

    Source: 18 FR 6371, Oct. 7, 1953, unless otherwise noted.



Sec. 1501.1  Name.

    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.



Sec. 1501.2  Officers.

    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.



Sec. 1501.3  Duties of officers.

    (a) The Chairman. 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.
    (b) The Vice-Chairman. The duties of the vice-chairman, when acting 
in the place of the chairman, shall be the same as the duties of the 
chairman.
    (c) The Executive-Secretary. 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.



Sec. 1501.4  Hearings.

    No adverse determination shall be made without the opportunity for a 
hearing.



Sec. 1501.5  Panels of the Board.

    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.



Sec. 1501.6  Quorum.

    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.



Sec. 1501.7  Authority and responsibility of the Board.

    The Board shall have the authority and responsibility to make rules 
and regulations, not inconsistent with the

[[Page 184]]

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.



Sec. 1501.8  Grounds for determinations of the Board.

    (a) Standard. 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.
    (b) Activities and associations. 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:
    (1) Sabotage, espionage, or attempts or preparations therefor, or 
knowingly associating with spies or saboteurs.
    (2) Treason or sedition or advocacy thereof.
    (3) Advocacy of revolution or force or violence to alter the 
constitutional form of government of the United States.
    (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.
    (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.
    (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.



Sec. 1501.9  Cases reviewable by the Board.

    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.



Sec. 1501.10  Consideration of reports of investigation.

    (a) In all cases the Board shall consider the reports of 
investigation in the light of the standard as set forth in Sec. 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.
    (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.
    (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

[[Page 185]]

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.



Sec. 1501.11  Consideration of complete file before hearing.

    (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.
    (b) If, upon such consideration, the Board concludes that a finding 
favorable to the individual may be made, no hearing shall be required.
    (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.



Sec. 1501.12  Obtaining further information.

    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.



Sec. 1501.13  Conduct of hearings.

    (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.
    (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.
    (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.
    (d) Testimony shall be given under oath or affirmation.
    (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.
    (f) A complete verbatim stenographic transcript shall be made of the 
hearing, and the transcript shall constitute a permanent part of the 
record.
    (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

[[Page 186]]

the applicant resides, and such payment is considered in the interest of 
good administration and funds are available for this purpose.

[18 FR 6371, Oct. 7, 1953, as amended at 21 FR 5249, July 14, 1956]



Sec. 1501.14  Decision of the Board.

    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.



Sec. 1501.15  Transmission of Determination to the Secretary of State.

    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.



Sec. 1501.16  Notification of individual concerned.

    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.

[[Page 187]]



         CHAPTER VI--FEDERAL RETIREMENT THRIFT INVESTMENT BOARD




  --------------------------------------------------------------------
Part                                                                Page
1600            Employee contribution elections and 
                    contribution allocations................         189
1601            Participants' choices of TSP Funds..........         192
1603            Vesting.....................................         195
1604            Uniformed services accounts.................         196
1605            Correction of administrative errors.........         200
1606

[Reserved]

1620            Expanded and continuing eligibility.........         212
1630            Privacy Act regulations.....................         218
1631            Availability of records.....................         227
1632            Rules regarding public observation of 
                    meetings................................         237
1633            Standards of conduct........................         241
1636            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Retirement Thrift Investment Board......         241
1639            Claims collection...........................         247
1640            Periodic participant statements.............         262
1645            Calculation of share prices.................         263
1650            Methods of withdrawing funds from the Thrift 
                    Savings Plan............................         264
1651            Death benefits..............................         275
1653            Court orders and legal processes affecting 
                    Thrift Savings Plan accounts............         281
1655            Loan program................................         289
1690            Thrift Savings Plan.........................         296

[[Page 189]]



PART 1600_EMPLOYEE CONTRIBUTION ELECTIONS AND CONTRIBUTION ALLOCATIONS--Table of Contents

                            Subpart A_General

Sec.
1600.1 Definitions.

                           Subpart B_Elections

1600.11 Types of elections.
1600.12 Contribution elections.
1600.13 Timing of agency contributions.
1600.14 Effect of transfer to FERS.

                   Subpart C_Program of Contributions

1600.21 Contributions in whole numbers.
1600.22 Maximum contributions.

        Subpart D_Transfers From Other Qualified Retirement Plans

1600.31 Accounts eligible for transfer.
1600.32 Methods for transferring eligible rollover distribution to TSP.
1600.33 Treatment accorded transferred funds.

    Authority: 5 U.S.C. 8351, 8432(a), 8432(b), 8432(c), 8432(j), 
8474(b)(5) and (c)(1), Thrift Savings Plan Enhancement Act of 2009, 
section 102.

    Source: 66 FR 22089, May 2, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 1600.1  Definitions.

    Definitions generally applicable to the Thrift Savings Plan are set 
forth at 5 CFR 1690.1.

[68 FR 35494, June 13, 2003]



                           Subpart B_Elections



Sec. 1600.11  Types of elections.

    (a) Contribution elections. A contribution election must be made 
pursuant to Sec. 1600.14 and includes the following types of elections:
    (1) To make employee contributions;
    (2) To change the amount of employee contributions; or
    (3) To terminate employee contributions.
    (b) Contribution allocation. A participant may make or change the 
manner in which future deposits to his or her account are allocated 
among the TSP Funds only in accordance with 5 CFR part 1601.

[66 FR 22089, May 2, 2001, as amended at 68 FR 35494, June 13, 2003; 70 
FR 32207, June 1, 2005]



Sec. 1600.12  Contribution elections.

    (a) An employee may make a contribution election at any time.
    (b) A participant must submit a contribution election to his or her 
employing agency. To make an election, employees may use either the 
paper election form provided by the TSP, or, if available from their 
employing agency, electronic media. If an electronic medium is used, all 
relevant elements contained on the paper form must be included in the 
electronic medium.
    (c) A contribution election must:
    (1) Be completed in accordance with the instructions on the form, if 
a paper form is used;
    (2) Be made in accordance with the employing agency's instructions, 
if the submission is made electronically; and
    (3) Not exceed the maximum contribution limitations described in 
Sec. 1600.22.
    (d) A contribution election will become effective no later than the 
first full pay period after it is received by the employing agency.

[70 FR 32207, June 1, 2005]



Sec. 1600.13  Timing of agency contributions.

    An employee appointed or reappointed to a position covered by FERS 
is immediately eligible to receive agency contributions. In order to 
enable agencies to modify their personnel and payroll systems, agencies 
must implement this regulation as soon as practicable, but in no case 
later than the first full pay period in August 2009. Effective with the 
first full pay period of August 2009, all eligible employees must 
receive immediate agency contributions.

[74 FR 29112, June 19, 2009]



Sec. 1600.14  Effect of transfer to FERS.

    (a) If an employee appointed to a position covered by CSRS elects to 
transfer to FERS, the employee may make a contribution election at any 
time.

[[Page 190]]

    (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.
    (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.
    (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.

[70 FR 32207, June 1, 2005]



                   Subpart C_Program of Contributions



Sec. 1600.21  Contributions in whole numbers.

    Employees may elect to contribute a percentage of basic pay or a 
dollar amount, subject to the limits described in Sec. 1600.22. The 
election must be expressed in whole percentages or whole dollar amounts.



Sec. 1600.22  Maximum contributions.

    (a) Regular employee contributions. A participant's regular TSP 
contributions are subject the following limitations:
    (1) FERS percentage limit. The maximum employee contribution from 
basic pay for a FERS participant for 2005 is 15 percent. After 2005 the 
percentage of basic pay limit will not apply and the maximum 
contribution will be limited only by the provisions of the Internal 
Revenue Code (26 U.S.C.).
    (2) CSRS and uniformed services percentage limit. The maximum 
employee contribution from basic pay for a CSRS or uniformed services 
participant for 2005 is 10 percent. After 2005 the percentage of basic 
pay limit will not apply and the maximum contribution will be limited 
only by the provisions of the Internal Revenue Code.
    (b) Catch-up contributions. (1) A participant may make tax-deferred 
catch-up contributions from basic pay at any time during the calendar 
year if he or she:
    (i) Is at least age 50 by the end of the calendar year;
    (ii) Is making regular TSP contributions at a rate that will result 
in the participant making the maximum regular contributions permitted 
under paragraph (a) of this section; and
    (iii) Does not exceed the annual limit on catch-up contributions 
contained in the Internal Revenue Code.
    (2) Elections to make catch-up contributions will be separate from 
the participant's regular contribution election.
    (3) A participant who has both a civilian and a uniformed services 
account can make catch-up contributions to both accounts, but the total 
amount of the catch-up contributions to both accounts cannot exceed the 
Internal Revenue Code catch-up contribution limit for the year.
    (4) Catch-up contributions are not eligible for matching 
contributions.

[70 FR 32207, June 1, 2005]



        Subpart D_Transfers From Other Qualified Retirement Plans



Sec. 1600.31  Accounts eligible for transfer.

    (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.
    (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

[[Page 191]]

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).

[67 FR 17604, Apr. 11, 2002]



Sec. 1600.32  Methods for transferring eligible rollover distribution to TSP.

    (a) Trustee-to-trustee transfer. 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 either 
complete the appropriate section of the form and forward the completed 
form and the distribution to the TSP record keeper or the Agency must 
receive sufficient evidence from which to reasonably conclude that a 
contribution is a valid rollover contribution. By way of example, 
sufficient evidence to conclude a contribution is a valid rollover 
contribution includes a copy of the plan's determination letter, a 
letter or other statement from the plan indicating that it is an 
eligible retirement plan, a check indicating that the contribution is a 
direct rollover or a tax notice from the plan to the participant 
indicating that the participant could receive a rollover from the plan.
    (b) Rollover by participant. 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:
    (1) The participant must complete Form TSP-60 or TSP-U-60, Request 
for a Transfer Into the TSP.
    (2) The administrator or trustee must either complete the 
appropriate section of the form and forward the completed form and the 
distribution to the TSP record keeper or the Agency must receive 
sufficient evidence from which to reasonably conclude that a 
contribution is a valid rollover contribution. By way of example, 
sufficient evidence to conclude a contribution is a valid rollover 
contribution includes a copy of the plan's determination letter, a 
letter or other statement from the plan indicating that it is an 
eligible retirement plan, a check indicating that the contribution is a 
direct rollover or a tax notice from the plan to the participant 
indicating that the participant could receive a rollover from the plan.
    (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, treasurer's check from a credit union, or personal check, 
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 from the distribution for the payment of Federal taxes.
    (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.
    (c) Participant's certification. 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:
    (1) Distribution from an eligible employer plan. The participant 
must certify that the distribution:
    (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;
    (ii) Is not a minimum distribution required by I.R.C. section 
401(a)(9) (26 U.S.C. 401(a)(9));
    (iii) Is not a hardship distribution;
    (iv) Is not a plan loan that is deemed to be a taxable distribution 
because of default;
    (v) Is not a return of excess elective deferrals; and
    (vi) If not transferred or rolled over, would be includible in gross 
income for

[[Page 192]]

the tax year in which the distribution is paid.
    (2) Distribution from a traditional IRA. The participant must 
certify that the distribution:
    (i) Is not a minimum distribution required under I.R.C. section 
401(a)(9) (26 U.S.C. 401(a)(9)); and
    (ii) If not transferred or rolled over, would be includible in gross 
income for the tax year in which the distribution is paid.

[67 FR 17604, Apr. 11, 2002, as amended at 68 FR 35495, June 13, 2003; 
72 FR 53413, Sept. 19, 2007]



Sec. 1600.33  Treatment accorded transferred funds.

    (a) All funds transferred to the TSP pursuant to Sec. Sec. 1600.31 
and 1600.32 will be treated as employee contributions.
    (b) All funds transferred to the TSP pursuant to Sec. Sec. 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.
    (c) Funds transferred to the TSP pursuant to Sec. Sec. 1600.31 and 
1600.32 are not subject to the limits on contributions described in 
Sec. 1600.22.



PART 1601_PARTICIPANTS' CHOICES OF TSP FUNDS--Table of Contents

                            Subpart A_General

Sec.
1601.1 Definitions.

                   Subpart B_Investing Future Deposits

1601.11 Applicability
1601.12 Investing future deposits in the TSP Funds.
1601.13 Elections.

    Subpart C_Redistributing Participants' Existing Account Balances 
                          (Interfund Transfers)

1601.21 Applicability.
1601.22 Methods of requesting an interfund transfer.

   Subpart D_Contribution Allocations and Interfund Transfer Requests

1601.31 Applicability.
1601.32 Timing and posting dates.
1601.33 Acknowledgment of risk.
1601.34 Error correction.

                        Subpart E_Lifecycle Funds

1601.40 Lifecycle Funds.

    Authority: 5 U.S.C. 8351, 8438, 8474(b)(5) and (c)(1).

    Source: 66 FR 22093, May 2, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 1601.1  Definitions.

    (a) Definitions generally applicable to the Thrift Savings Plan are 
set forth at 5 CFR 1690.1.
    (b) As used in this part:
    Acknowledgment of risk means an acknowledgment that any investment 
in a TSP Fund other than the G Fund is made at the participant's risk, 
that the participant is not protected by the 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.

[68 FR 35495, June 13, 2003, as amended at 70 FR 32207, June 1, 2005]



                   Subpart B_Investing Future Deposits

    Source: 68 FR 35495, June 13, 2003, unless otherwise noted.



Sec. 1601.11  Applicability.

    This subpart applies only to the investment of future deposits to 
the TSP's TSP Funds, including contributions, loan payments, and 
transfers or rollovers from traditional IRAs and eligible employer 
plans; it does not apply to redistributing participants' existing 
account balances among the TSP Funds, which is covered in subpart C of 
this part.

[68 FR 35495, June 13, 2003, as amended at 70 FR 32207, June 1, 2005]



Sec. 1601.12  Investing future deposits in the TSP Funds.

    (a) Allocation. Future deposits in the TSP, including contributions, 
loan payments, and transfers or rollovers from traditional IRAs and 
eligible employer plans, will be allocated among

[[Page 193]]

the TSP Funds based on the most recent contribution allocation on file 
for the participant.
    (b) TSP Funds availability. All participants may elect to invest all 
or any portion of their deposits in any of the TSP Funds.

[70 FR 32207, June 1, 2005]



Sec. 1601.13  Elections.

    (a) Contribution allocation. Each participant may indicate his or 
her choice of TSP Funds for the allocation of future deposits by using 
the TSP Web site or the ThriftLine, or by completing and filing the 
appropriate paper TSP form with the TSP record keeper in accordance with 
the form's instructions. The following rules apply to contribution 
allocations:
    (1) Contribution allocations must be made in one percent increments. 
The sum of the percentages elected for all of the TSP Funds must equal 
100 percent;
    (2) The percentage elected by a participant for investment of future 
deposits in a TSP Fund will be applied to all sources of contributions 
and transfers (or rollovers) from traditional IRAs and eligible employer 
plans. A participant may not make different percentage elections for 
different sources of contributions;
    (3) A participant who elects for the first time to invest in a TSP 
Fund other than the G Fund must execute an acknowledgment of risk in 
accordance with Sec. 1601.33;
    (4) All deposits made on behalf of a participant who does not have a 
contribution allocation in effect will be invested in the G Fund; and
    (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 and had not withdrawn his or her 
entire TSP account, the participant's last contribution allocation 
before separation from service will be effective until a new allocation 
is made.
    (b) Effect of rejection of contribution allocation. If a participant 
does not correctly complete a contribution allocation, the attempted 
allocation will have no effect. The TSP will provide the participant 
with a written statement of the reason the transaction was rejected.
    (c) Contribution elections. 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.

[68 FR 35495, June 13, 2003, as amended at 70 FR 32207, June 1, 2005]



    Subpart C_Redistributing Participants' Existing Account Balances 
                          (Interfund Transfers)

    Source: 68 FR 35495, June 13, 2003, unless otherwise noted.



Sec. 1601.21  Applicability.

    This subpart applies only to interfund transfers, which involve 
redistributing participants' existing account balances among the TSP 
Funds; it does not apply to the investment of future deposits, which is 
covered in subpart B of this part.

[68 FR 35495, June 13, 2003, as amended at 70 FR 32208, June 1, 2005]



Sec. 1601.22  Methods of requesting an interfund transfer.

    (a) Participants may make an interfund transfer using the TSP Web 
site or the ThriftLine, or by completing and filing the appropriate 
paper TSP form with the TSP record keeper in accordance with the form's 
instructions. The following rules apply to an interfund transfer 
request:
    (1) Interfund transfer requests must be made in whole percentages 
(one percent increments). The sum of the percentages elected for all of 
the TSP Funds must equal 100 percent.
    (2) The percentages elected by the participant will be applied to 
the balances in each source of contributions and to both tax-deferred 
and tax-exempt balances on the effective date of the interfund transfer.
    (3) Any participant who elects to invest in a TSP Fund other than 
the G Fund for the first time must execute an acknowledgement of risk in 
accordance with Sec. 1601.33.
    (b) An interfund transfer request has no effect on deposits made 
after the effective date of the interfund transfer

[[Page 194]]

request; subsequent deposits will continue to be allocated among the 
investment funds in accordance with the participant's contribution 
allocation made under subpart B of this part.
    (c) If an interfund transfer is found to be invalid pursuant to 
Sec. 1601.34, the purported transfer will not be made. The TSP will 
provide the participant with a written statement of the reason the 
transaction was rejected.

[70 FR 32208, June 1, 2005]



   Subpart D_Contribution Allocations and Interfund Transfer Requests



Sec. 1601.31  Applicability.

    This subpart applies both to contribution allocations made under 
subpart B of this part and interfund transfers made under subpart C of 
this part.



Sec. 1601.32  Timing and posting dates.

    (a) Posting dates. The date on which the TSP processes or posts a 
contribution allocation or interfund transfer request (transaction 
request) is subject to a number of factors, including some that are 
outside of the control of the TSP, such as power outages, the failure of 
telephone service, unusually heavy transaction volume, and acts of God. 
These factors also could affect the availability of the TSP Web site and 
the ThriftLine. Therefore, the TSP cannot guarantee that a transaction 
request will be processed on a particular day. However, the TSP will 
process transaction requests under ordinary circumstances according to 
the following rules:
    (1) A transaction request entered into the TSP record keeping system 
by a participant who uses the TSP Web site or the ThriftLine, or by a 
TSP Service Office participant service representative at the 
participant's request, at or before 12:00 noon eastern time of any 
business day, will ordinarily be posted that business day. A transaction 
request entered into the system after 12:00 noon eastern time of any 
business day will ordinarily be posted on the next business day.
    (2) A transaction request made on the TSP Web site or the ThriftLine 
on a non-business day will ordinarily be posted on the next business 
day.
    (3) A transaction request made on a paper TSP form will ordinarily 
be posted under the rules in paragraph (a)(1) of this section, based on 
when the TSP record keeper enters the form into the TSP system. The TSP 
record keeper ordinarily enters such forms into the system within 24 
hours of their receipt.
    (4) In most cases, the share price(s) applied to an interfund 
transfer request is the value of the shares on the date the relevant 
transaction is posted. In some circumstances, such as error correction, 
the share price(s) for an earlier date will be used.
    (b) Limit. There is no limit on the number of contribution 
allocation requests. A participant may make two unrestricted interfund 
transfers (account rebalancings) per account (e.g., civilian or 
uniformed services), per calendar month. An interfund transfer will 
count toward the monthly total on the date posted by the TSP and not on 
the date requested by a participant. After a participant has made two 
interfund transfers in a calendar month, the participant may make 
additional interfund transfers only into the G Fund until the first day 
of the next calendar month.

[70 FR 32208, June 1, 2005, as amended at 72 FR 73252, Dec. 27, 2007; 73 
FR 22057, Apr. 24, 2008]



Sec. 1601.33  Acknowledgment of risk.

    (a) A participant who wants to invest in a TSP 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.
    (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 a paper TSP form.

[70 FR 32208, June 1, 2005]



Sec. 1601.34  Error correction.

    Errors in processing contribution allocations and interfund transfer 
requests, or errors that otherwise cause

[[Page 195]]

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.

[66 FR 22093, May 2, 2001. Redesignated at 70 FR 32208, June 1, 2005]



                        Subpart E_Lifecycle Funds



Sec. 1601.40  Lifecycle Funds.

    The Executive Director will establish TSP Lifecycle Funds, which are 
target date asset allocation portfolios. The TSP Lifecycle Funds will 
invest solely in the funds established by the TSP pursuant to 5 U.S.C. 
8438.

[70 FR 32208, June 1, 2005]



PART 1603_VESTING--Table of Contents

Sec.
1603.1 Definitions.
1603.2 Basic vesting rules.
1603.3 Service requirements.

    Authority: 5 U.S.C. 8432(g), 8432b(h)(1), 8474(b)(5) and (c)(1).

    Source: 52 FR 29835, Aug. 12, 1987, unless otherwise noted.



Sec. 1603.1  Definitions.

    (a) Definitions generally applicable to the Thrift Savings Plan are 
set forth at 5 CFR 1690.1.
    (b) As used in this part:
    Service means:
    (1) Any non-military service that is creditable under either 5 
U.S.C. chapter 83, subchapter III, or 5 U.S.C. 8411. However, that 
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
    (2) Any military service creditable under the provisions of 5 U.S.C. 
8432b(h)(1) and the regulations at 5 CFR part 1620, subpart H.
    Uniformed services means the Army, Navy, Air Force, Marine Corps, 
Coast Guard, Public Health Service, and National Oceanic and Atmospheric 
Administration, as well as members of the Ready Reserve including the 
National Guard.
    Vested means those amounts in an individual account which are 
nonforfeitable.
    Year of service means one full calendar year of service.

[68 FR 35497, June 13, 2003]



Sec. 1603.2  Basic vesting rules.

    (a) All amounts in a CSRS employee's or uniformed service member's 
individual account are immediately vested.
    (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.
    (c) Except as provided in paragraph (d) of this section, upon 
separation from Government service without meeting the applicable 
service requirements of Sec. 1603.3, a FERS employee's agency automatic 
(1%) contributions and attributable earnings will be forfeited.
    (d) If a FERS employee dies (or died) after January 7, 1988, without 
meeting the applicable service requirements set forth in Sec. 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.

[52 FR 29835, Aug. 12, 1987, as amended at 62 FR 33969, June 23, 1997; 
68 FR 35497, June 13, 2003]



Sec. 1603.3  Service requirements.

    (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.
    (b) FERS employees will be vested in their agency automatic (1%) 
contributions and attributable earnings upon separating from Government 
service if,

[[Page 196]]

as of their separation date, they have completed two years of service 
and they are serving in one of the following positions:
    (1) A position in the Senior Executive Service as a non-career 
appointee (as defined in 5 U.S.C. 3132(a)(7));
    (2) Positions listed in 5 U.S.C. 5312, 5313, 5314, 5315 or 5316;
    (3) A position placed in level IV or level V of the Executive 
Schedule, pursuant to 5 U.S.C. 5317;
    (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
    (5) A Member of Congress or a Congressional employee.

[52 FR 29835, Aug. 12, 1987, as amended at 60 FR 24535, May 9, 1995; 62 
FR 33969, June 23, 1997]



PART 1604_UNIFORMED SERVICES ACCOUNTS--Table of Contents

Sec.
1604.1 Applicability.
1604.2 Definitions.
1604.3 Contribution elections.
1604.4 Contributions.
1604.5 Separate service member and civilian accounts.
1604.6 Error correction.
1604.7 Withdrawals.
1604.8 Death benefits.
1604.9 Court orders and legal processes.
1604.10 Loans.

    Authority: 5 U.S.C. 8440e, 8474(b)(5) and (c)(1).

    Source: 66 FR 50713, Oct. 4, 2001, unless otherwise noted.



Sec. 1604.1  Applicability.

    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.



Sec. 1604.2  Definitions.

    As used in this part:
    Basic pay means basic pay payable under 37 U.S.C. 204 and 
compensation received under 37 U.S.C. 206.
    Bonus contributions means contributions made by participants from a 
bonus as defined in 37 U.S.C. chapter 5.
    Civilian account means the TSP account to which contributions have 
been made by or on behalf of a civilian employee.
    Civilian employee means a TSP participant covered by the Federal 
Employees' Retirement System, the Civil Service Retirement System, or 
equivalent retirement plans.
    Combat zone compensation means compensation received for active 
service during a month in which a member of the uniformed services 
serves in a combat zone.
    Combat zone contributions 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.
    Employee contributions means contributions made by participants from 
basic pay, incentive pay, and special pay (including bonuses).
    Employing agency 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.
    Federal civilian retirement system 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.
    Periodic contributions means employee contributions made from 
recurring incentive pay and special pay (including bonuses) as defined 
in 37 U.S.C. chapter 5.
    Ready Reserve means those members of the uniformed services 
described at 10 U.S.C. 10142.
    Regular contributions means employee contributions made from basic 
pay.
    Separation from service 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

[[Page 197]]

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.
    Service member means a member of the uniformed services on active 
duty or a member of the Ready Reserve in any pay status.
    Service member account means the account to which contributions have 
been made by or on behalf of a member of the uniformed services.
    Special and incentive pay means pay payable as special or incentive 
pay under 37 U.S.C. chapter 5.
    Uniformed services means the Army, Navy, Air Force, Marine Corps, 
Coast Guard, Public Health Service, and the National Oceanic and 
Atmospheric Administration.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005]



Sec. 1604.3  Contribution elections.

    A service member may make contribution elections as described in 5 
CFR part 1600. 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 elect to contribute to the TSP from 
basic pay in order to contribute to the TSP from incentive pay and 
special pay (including bonuses). 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.

[70 FR 32209, June 1, 2005]



Sec. 1604.4  Contributions.

    (a) Employee contributions. 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. The 
maximum TSP regular employee contribution (including contributions from 
pay earned in a combat zone) which a service member may make for 2005 is 
10 percent of basic pay. After 2005 the percentage of basic pay limit 
will not apply and the maximum contribution will be limited only by the 
provisions of the Internal Revenue Code (26 U.S.C.).
    (b) Matching contributions. 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.
    (c) Deduction and transmittal of contributions. 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.

[66 FR 50713, Oct. 4, 2001, as amended at 68 FR 35497, June 13, 2003; 70 
FR 32209, June 1, 2005]



Sec. 1604.5  Separate service member and civilian accounts.

    (a) Separate accounts. 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:

[[Page 198]]

    (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 (26 U.S.C.) contribution limits.
    (2) A member of the uniformed services may obtain a loan from his or 
her account, as described at Sec. 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 Sec. 1604.10(a)(3).
    (b) Transfers between TSP accounts. 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:
    (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.
    (2) Combat zone contributions may not be transferred from a 
uniformed services TSP account to a civilian TSP account.
    (3) Transferred funds will be allocated among the TSP Funds 
according to the contribution allocation in effect for the account into 
which the funds are transferred.
    (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.
    (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.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005]



Sec. 1604.6  Error correction.

    (a) General rule. 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.
    (b) Missed bonus contributions. 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.
    (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).
    (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.



Sec. 1604.7  Withdrawals.

    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:
    (a) Separate accounts. If the TSP maintains a service member account

[[Page 199]]

and a civilian account for an individual, a separate withdrawal request 
must be made for each account.
    (b) Spousal rights. 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 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.
    (c) Combat zone contributions. If a service member account contains 
combat zone contributions, the withdrawal will be distributed pro rata 
from all sources. If a participant requests the TSP to transfer all, or 
a portion, of a withdrawal to a traditional IRA or eligible employer 
plan, the share of the withdrawal attributable to combat zone 
contributions (if any) can be transferred only if the IRA or plan 
accepts such funds.
    (d) Separation. The definition of separation from service at Sec. 
1604.2 applies when determining a service member's eligibility for a 
withdrawal.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005]



Sec. 1604.8  Death benefits.

    The account balance of a deceased service member will be paid as 
described at 5 CFR part 1651, with the following exceptions:
    (a) Separate accounts. 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.
    (b) Combat zone contributions. If a service member account contains 
combat zone contributions, the death benefit payment will be made pro 
rata from all sources.
    (c) Trustee-to-trustee transfers. The surviving spouse of a TSP 
participant can request the TSP to transfer a death benefit payment to a 
traditional IRA or eligible employer 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 plan accepts such funds.
    (d) Transfer to a TSP account. 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.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005]



Sec. 1604.9  Court orders and legal processes.

    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:
    (a) Separate accounts. 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.
    (b) Combat zone contributions. If a service member account contains 
combat zone contributions, the payment will be made pro rata from all 
sources.
    (c) Trustee-to-trustee transfers. The current or former spouse of a 
TSP participant can request the TSP to transfer a court-ordered payment 
to a traditional IRA or eligible employer plan. If the payee requests 
the TSP to transfer all or a portion of the court-ordered payment to an 
IRA or 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.
    (d) Transfer to a TSP account. 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

[[Page 200]]

the court-ordered payment to the payee's TSP account; the pro rata share 
attributable to combat zone contributions (if any) cannot be 
transferred.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005; 74 
FR 63062, Dec. 2, 2009]



Sec. 1604.10  Loans.

    A service member may be eligible for a TSP loan as described at 5 
CFR part 1655, with the following exceptions:
    (a) Separate accounts. If the TSP maintains a service member account 
and a civilian account for an individual:
    (1) A separate loan application must be made for each account;
    (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;
    (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.
    (b) Spousal rights. 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.
    (c) Combat zone contributions. 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.

[66 FR 50713, Oct. 4, 2001, as amended at 70 FR 32209, June 1, 2005]



PART 1605_CORRECTION OF ADMINISTRATIVE ERRORS--Table of Contents

                            Subpart A_General

Sec.
1605.1 Definitions.
1605.2 Calculating, posting, and charging breakage.

                    Subpart B_Employing Agency Errors

1605.11 Makeup of missed or insufficient contributions.
1605.12 Removal of erroneous contributions.
1605.13 Back pay awards and other retroactive pay adjustments.
1605.14 Misclassified retirement system coverage.
1605.15 Reporting and processing late contributions and late loan 
          payments.
1605.16 Claims for correction of employing agency errors; time 
          limitations.

               Subpart C_Board or TSP Record Keeper Errors

1605.21 Plan-paid breakage and other corrections.
1605.22 Claims for correction of Board or TSP record keeper errors; time 
          limitations.

                   Subpart D_Miscellaneous Provisions

1605.31 Contributions missed as a result of military service.

    Authority: 5 U.S.C. 8351, 8432a, and 8474(b)(5)(5) and (c)(1). 
Subpart B also issued under section 1043(b) of Public Law 104-106, 110 
Stat. 186 and sec. 7202(m)(2) of Public Law 101-508, 104 Stat. 1388.

    Source: 66 FR 44277, Aug. 22, 2001, unless otherwise noted.



                            Subpart A_General



Sec. 1605.1  Definitions.

    (a) Definitions generally applicable to the Thrift Savings Plan are 
set forth at 5 CFR 1690.1.
    (b) As used in this part:
    ``As of'' date means the date on which a TSP contribution or other 
transaction entailing acquisition of investment fund shares should have 
taken place. Employing agencies use this date on payment records to 
report makeup or late contributions or late loan payments.
    Attributable pay date ordinarily means the pay date of an erroneous 
contribution for which a negative adjustment is being made or, in the 
case of the uniformed services, the pay date of a contribution that is 
being recharacterized from tax-deferred to tax-exempt, or vice versa. 
However, if the erroneous contribution was a makeup or late 
contribution, the attributable pay date is the ``as of'' date of the 
erroneous makeup or late contribution.
    Breakage means the loss incurred or the gain realized on makeup or 
late

[[Page 201]]

contributions. It is the difference between the value of the shares of 
the applicable investment fund(s) that would have been purchased had the 
contribution been made on the ``as of'' date and the value of the shares 
of the same investment fund(s) on the date the contribution is posted to 
the account.
    Error means any act or omission by the Board, the TSP Record Keeper, 
or the participant's employing agency that is not in accordance with 
applicable statutes, regulations, or administrative procedures that are 
made available to employing agencies and/or TSP participants. It does 
not mean an act or omission caused by events that are beyond the control 
of the Board, the TSP Record Keeper, or the participant's employing 
agency.
    FERCCA correction means the correction of a retirement coverage 
error pursuant to the Federal Erroneous Retirement Coverage Corrections 
Act, title II, Public Law 106-265, 114 Stat. 770.
    Late contributions means:
    (1) Employee contributions that were timely deducted from a 
participant's basic pay but were not timely reported to the TSP record 
keeper for investment;
    (2) Employee contributions that were timely reported to the TSP but 
were not timely posted to the participant's account by the TSP because 
the payment record on which they were submitted contained errors;
    (3) Agency matching contributions attributable to employee 
contributions referred to in paragraphs (1) or (2) of this definition; 
and
    (4) Delayed agency automatic (1%) contributions.
    Makeup contributions 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.
    Negative adjustment means the removal of money from a participant's 
TSP account by an employing agency.
    Negative adjustment record means a data record submitted by an 
employing agency to remove from a participant's TSP account money that 
the agency had previously submitted in error.
    Pay date means the date established by an employing agency for 
paying its employees or service members.
    Payment record means a data record submitted by an employing agency 
to report contributions or loan payments to a participant's TSP account.

[68 FR 35497, June 13, 2003, as amended at 70 FR 32209, June 1, 2005]



Sec. 1605.2  Calculating, posting, and charging breakage.

    (a) The TSP will calculate breakage on late contributions, makeup 
agency contributions, and loan payments as described by Sec. 
1605.15(b). This breakage calculation is subject to the following rules:
    (1) The TSP will not calculate breakage if contributions or loan 
payments are posted within 30 days of the ``as of'' date, or if the 
total amount on a late payment record or the total agency contributions 
on a current payment record is less than $1.00; and
    (2) The TSP will not take the participant's interfund transfers into 
account when determining breakage.
    (b) Calculating breakage. The TSP will calculate breakage as 
follows:
    (1) For contributions or loan payments with ``as of'' dates on or 
after January 1, 2000, the TSP will:
    (i) Use the participant's contribution allocation on file for the 
``as of'' date to determine how the funds would have been invested. If 
there is no contribution allocation on file, or one cannot be derived 
based on the investment of contributions, the TSP will consider the 
funds to have been invested in the G Fund;
    (ii) Determine the number of shares of the applicable investment 
funds the participant would have received had the contributions or loan 
payments been made on time. If the ``as of'' date is before TSP account 
balances were converted to shares, this determination will be the number 
of shares the participant would have received on the conversion date, 
and will include the monthly earnings the participant would have 
received had the contributions or loan payments been made on the ``as 
of'' date; and

[[Page 202]]

    (iii) Determine the dollar value on the posting date of the number 
of shares the participant would have received had the contributions or 
loan payments been made on time. The difference between the dollar value 
of the contribution or loan payment on the posting date and the dollar 
value of the contribution or loan payment on the ``as of'' date is the 
breakage.
    (2) For contributions and loan payments with an ``as of'' date 
before January 1, 2000, the TSP will:
    (i) Value the contributions and loan payments from the ``as of'' 
date through the date TSP accounts were converted to shares, by using 
the greater of either the G Fund monthly rate of return or the average 
monthly rate of return for all TSP Funds;
    (ii) Determine the number of shares the participant would have 
received at conversion; and
    (iii) Determine the dollar value of those shares on the posting date 
by using the greater of either the G Fund share price or the average 
share price for all of the TSP Funds. The difference between the dollar 
value of the contribution or loan payment on the posting date and the 
dollar value of the contribution or loan payment on the ``as of'' date 
is the breakage.
    (c) Posting contributions and loan payments. Makeup and late 
contributions, late loan payments, and breakage, will be posted to the 
participant's account according to his or her contribution allocation on 
file for the posting date. If there is no contribution allocation on 
file for the posting date, they will be posted to the G Fund.
    (d) Charging breakage. If the dollar amount posted to the 
participant's account is greater than the dollar amount of the makeup or 
late contribution or late loan payment, the TSP will charge the agency 
the additional amount. If the dollar amount posted to the participant's 
account is less than the dollar amount of the makeup or late 
contribution, or late loan payment, the difference between the amount of 
the contribution and the amount posted will be forfeited to the TSP.
    (e) Posting of multiple contributions. If the TSP posts multiple 
makeup or late contributions or late loan payments with different ``as 
of'' dates for a participant on the same business day, the amount of 
breakage charged to the employing agency or forfeited to the TSP will be 
determined separately for each transaction, without netting any gains or 
losses attributable to different ``as of'' dates. In addition, gains and 
losses from different sources of contributions or different TSP Funds 
will not be netted against each other. Instead, breakage will be 
determined separately for each as-of date, TSP Fund, and source of 
contributions.

[70 FR 32209, June 1, 2005]



                    Subpart B_Employing Agency Errors



Sec. 1605.11  Makeup of missed or insufficient contributions.

    (a) Applicability. 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.
    (b) Employer makeup contributions. If an employing agency has failed 
to make agency automatic (1%) contributions that are required under 5 
U.S.C.

[[Page 203]]

8432(c)(1)(A), agency matching contributions that are required under 
section 8432(c)(2), or matching contributions that are authorized under 
37 U.S.C. 211(d), the following rules apply:
    (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 for the 
contributions.
    (2) The TSP will calculate the breakage due to the participant and 
post both the contributions and the associated breakage to the 
participant's account in accordance with Sec. 1605.2.
    (c) Employee makeup contributions. 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 a smaller amount of employee contributions to be made to the 
participant's account than should have been made, a participant may 
elect to establish a schedule to make up the deficient 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:
    (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 total 
amount to be contributed must be established when the schedule is 
created. After the schedule is created, a participant may, with the 
agreement of his or her agency, elect to change his or her payment 
amount (e.g., to accelerate payment). The length of the schedule may not 
exceed four times the number of pay periods over which the error 
occurred.
    (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.
    (3) The employing agency must implement the participant's schedule 
of makeup contributions as soon as practicable.
    (4) For each pay date involved, the employing agency must submit a 
separate payment record showing the ``as of'' date for which the 
employee contribution should have been made. An employee is not eligible 
to make up contributions with an ``as of'' date occurring during a 
period of six months following a financial hardship in-service 
withdrawal, as provided in 5 CFR 1650.33. An employee may make up 
contributions during a period of ineligibility due to a hardship 
withdrawal as long as the ``as of'' date is for an earlier period.
    (5) Employee makeup contributions will be invested in accordance 
with the participant's current contribution allocation. The number of 
shares of each TSP Fund which will be purchased will be determined by 
dividing the amount of the makeup contributions by the share price of 
the applicable fund(s) on the posting date.
    (6) Employee makeup contributions will be included for purposes of 
applying the annual limit contained in Internal Revenue Code (I.R.C.) 
section 402(g) (26 U.S.C. 402(g)(1)). For purposes of applying that 
limit, employee makeup contributions will be applied against the limit 
for the year of the ``as of'' date.
    (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 I.R.C. section 402(g) for the year(s) 
with respect to which the contributions are being made.
    (ii) The employing agency must not permit contributions that, when 
combined with prior contributions, would exceed the applicable annual 
contribution limit contained in I.R.C. section 402(g).

[[Page 204]]

    (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 complete the schedule of makeup 
contributions.
    (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 Federal service, the participant may elect to 
accelerate the payment schedule by a lump sum contribution from his or 
her final paycheck.
    (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.
    (10) If a participant transfers to an employing agency different 
from the one by 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.
    (11) Employee makeup contributions may be made only by payroll 
deduction from basic pay or, for uniformed services participants, from 
basic pay, incentive pay, or special pay, including bonus 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.

[68 FR 35498, June 13, 2003, as amended at 70 FR 32210, June 1, 2005]



Sec. 1605.12  Removal of erroneous contributions.

    (a) Applicability. This section applies to the removal of funds 
erroneously contributed to the TSP. The TSP calls this action a negative 
adjustment, and agencies may only request negative adjustments of 
erroneous contributions made on or after January 1, 2000. Excess 
contributions addressed by this section include, for example, excess 
employee contributions that result from employing agency error and 
excess employer contributions. This section does not address excess 
contributions resulting from a FERCCA correction; those contributions 
are addressed in Sec. 1605.14.
    (b) Method of correction. Negative adjustment records must be 
submitted by employing agencies in accordance with this part and any 
other procedures provided by the Board.
    (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 attributable pay date and the amount, by 
source, of the erroneous contribution.
    (2) A negative adjustment record may be for any part of the 
contributions made for the attributable pay date. However, for each 
source of contributions, the negative adjustment may not exceed the 
amount of the contributions made for that date, minus any prior negative 
adjustments for the same date.
    (c) Processing negative adjustments. To determine current value, a 
negative adjustment will be allocated among the TSP Funds as it would 
have been allocated on the attributable pay period (as reported by the 
employing agency).
    (1) If the attributable pay date for the erroneous contribution is 
on or before the date TSP accounts were converted to shares (and on or 
after January 1, 2000), the TSP will, for each source of contributions 
and investment fund:

[[Page 205]]

    (i) Determine the dollar value of the amount to be removed by using 
the monthly returns for the applicable TSP Fund;
    (ii) Determine the number of shares that the dollar value determined 
in paragraph (c)(1)(i) of this section would have purchased on the 
conversion date; and
    (iii) Multiply the price per share for the date the adjustment is 
posted by the number of shares calculated in paragraph (c)(1)(ii) of 
this section.
    (2) If the attributable pay date of the negative adjustment is after 
the date TSP accounts were converted to shares, the TSP will, for each 
source of contributions and TSP Fund:
    (i) Determine the number of shares that represent the amount of the 
contribution to be removed using the share price on the attributable pay 
date; and
    (ii) Multiply the price per share on the date the adjustment is 
posted by the number of shares calculated in paragraph (c)(2)(i) of this 
section.
    (d) Employee contributions. The following rules apply to negative 
adjustments involving employee contributions:
    (1) If, on the posting date, the amount calculated under paragraph 
(c) of this section is equal to or greater than the amount of the 
proposed negative adjustment, the full amount of the adjustment will be 
removed from the participant's account and returned to the employing 
agency. Earnings on the erroneous contribution will remain in the 
participant's account;
    (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 removed from the participant's account and returned to the 
employing agency. However, the employing agency must refund to the 
participant the full amount of the erroneous contribution;
    (3) If an employing agency requests the removal of erroneous 
employee contributions from a participant's account, it must also 
request the removal, under paragraph (e) of this section, of any 
attributable agency matching contributions; and
    (4) If all employee contributions are removed from a participant's 
account under the rules set forth in this section, the earnings 
attributable to those contributions will remain in the account until the 
participant removes them with an in-service or a post-employment 
withdrawal. If the participant is not eligible to maintain a TSP 
account, the employing agency must submit an employee data record to the 
TSP indicating that the participant has separated from Federal service 
(this will allow the TSP-ineligible participant to make a post-
employment withdrawal election).
    (e) Employer contributions. The following rules apply to negative 
adjustments involving erroneous employer contributions:
    (1) The amount calculated under paragraph (c) of this section will 
be removed from the participant's account.
    (2) 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;
    (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 
equal to or 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;
    (4) 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

[[Page 206]]

    (5) 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.
    (f)(1) If multiple negative adjustments for the same attributable 
pay date for a participant are posted on the same business day, the 
amount removed from the participant's account and used to offset TSP 
administrative expenses, or returned to the employing agency, will be 
determined separately for each adjustment. Earnings and losses for 
erroneous contributions made on different dates will not be netted 
against each other. In addition, for a negative adjustment for any 
attributable pay date, gains and losses from different sources of 
contributions or different TSP Funds will not be netted against each 
other. Instead, for each attributable pay date each source of 
contributions and each TSP Fund will be treated separately for purposes 
of these calculations. The amount computed by applying the rules in this 
section will be removed from the participant's account pro rata from all 
funds, by source, based on the allocation of the participant's account 
among the TSP Funds when the transaction is posted; and
    (2) If there is insufficient money in the same source of 
contributions to cover the amount to be removed or the amount of the 
requested adjustment, the negative adjustment record will be rejected.

[70 FR 32210, June 1, 2005]



Sec. 1605.13  Back pay awards and other retroactive pay adjustments.

    (a) Participant not employed. 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:
    (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;
    (2) The employing agency must give the participant the following 
options for electing makeup contributions:
    (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
    (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 if he or she would have been 
eligible to make such an election but for the erroneous separation.
    (3) All contributions made under this paragraph (a) and associated 
breakage will be invested according to the participant's contribution 
allocation on the posting date. Breakage will be calculated using the G 
Fund share prices in accordance with Sec. 1605.2 unless otherwise 
required by the employing agency or the court or other tribunal with 
jurisdiction over the back pay case.
    (b) Participant employed. 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:
    (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--
    (i) The participant had designated a percentage of basic pay to be 
contributed to the TSP; or
    (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;
    (2) The employing agency must compute the amount of additional 
employee contributions, agency matching contributions, and agency 
automatic (1%) contributions that would have been contributed to the 
participant's

[[Page 207]]

account had the reduction in pay leading to the back pay award or other 
retroactive pay adjustment not occurred; and
    (3) All contributions under this paragraph (b) and associated 
breakage will be posted to the participant's account based on the 
participant's contribution allocation on the posting date. Breakage will 
be calculated in accordance with Sec. 1605.2.
    (c) Contributions to be deducted before payment or other retroactive 
pay adjustment. Employee makeup contributions required under paragraphs 
(a) and (b) of this section:
    (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;
    (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
    (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.
    (d) Prior withdrawal of TSP account. If a participant has withdrawn 
his or her TSP account other than by purchasing an annuity, and the 
separation from Federal service 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 the participant does not notify the Board within 90 
days of reinstatement. If the participant returns the funds that were 
withdrawn, the number of shares purchased will be determined by using 
the share price of the applicable investment fund on the posting date. 
Restored funds will not incur breakage.
    (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.

[66 FR 44277, Aug. 22, 2001, as amended at 68 FR 35500, June 13, 2003; 
68 FR 74451, Dec. 23, 2003; 70 FR 32211, June 1, 2005]



Sec. 1605.14  Misclassified retirement system coverage.

    (a) If a CSRS participant is misclassified by an employing agency as 
a FERS participant, when the misclassification is corrected:
    (1) Employee contributions that exceed the applicable contribution 
percentage for the pay period(s) involved may remain in the 
participant's account. The participant may request the return of excess 
employee contributions made on or after January 1, 2000; those 
contributed before January 1, 2000, must remain in the participant's 
account. If the participant requests a refund of employee contributions, 
the employing agency must submit a negative adjustment record to remove 
these funds under the procedure described in Sec. 1605.12.
    (2) The TSP will forfeit all agency contributions that were made to 
a CSRS participant's account. An employing agency may submit a negative 
adjustment record to request the return of an erroneous contribution 
that has been in the participant's account for less than one year.
    (b) If a FERS participant is misclassified by an employing agency as 
a CSRS participant, when the misclassification is corrected:
    (1) The participant may not elect to have the contributions made 
while classified as CSRS removed from his or her account;
    (2) The participant may, under the rules of Sec. 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;
    (3) The employing agency must, under the rules of Sec. 1605.11, 
make agency automatic (1%) contributions and

[[Page 208]]

agency matching contributions on employee contributions that were made 
while the participant was misclassified;
    (4) If the retirement coverage correction is a FERCCA correction, 
the employing agency must submit makeup employee contributions on late 
payment records. The participant is entitled to breakage on 
contributions from all three sources. Breakage will be calculated 
pursuant to Sec. 1605.2. If the retirement coverage correction is not a 
FERCCA correction, the employing agency must submit makeup employee 
contributions on current payment records; in such cases, the employee is 
not entitled to breakage. Agency makeup contributions may be submitted 
on either current or late payment records; and
    (5) If employee contributions were made up before the Office of 
Personnel Management implemented its regulations on FERCCA correction, 
and the correction is considered to be a FERCCA correction, an amount to 
replicate TSP 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.
    (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.
    (1) Employee contributions in the account are subject to the rules 
in paragraph (a)(1) of this section.
    (2) Employer contributions in the account are subject to the rules 
in paragraph (a)(2) of this section.
    (3) The TSP will consider a participant to be separated from Federal 
service for all TSP purposes and the employing agency must submit an 
employee data record to reflect separation from Federal service. 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).
    (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 Sec. 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.
    (e) The provisions of paragraph (c) of this section shall apply to 
any TSP contributions relating to a period for which an employee elects 
retroactive Nonappropriated Fund retirement coverage.

[66 FR 44277, Aug. 22, 2001, as amended at 68 FR 35500, June 13, 2003; 
68 FR 74451, Dec. 23, 2003; 70 FR 32212, June 1, 2005; 72 FR 53414, 
Sept. 19, 2007]



Sec. 1605.15  Reporting and processing late contributions and late loan payments.

    (a) The employing agency must promptly submit late contributions to 
the TSP record keeper on behalf of the affected participant on late 
payment records as soon as the error is discovered. For each pay date 
involved, the employing agency must submit a separate record showing the 
``as of'' date for the contributions. Breakage for both employee and 
agency contributions will be calculated, posted, and charged to the 
agency or forfeited to the TSP in accordance with Sec. 1605.2.
    (b) If an employing agency deducts loan payments from a 
participant's pay, but fails to submit those payments to the TSP for the 
pay date for which they were deducted (or submits them in a manner that 
prevents them from being timely credited to the participant's account), 
the employing agency will be responsible for paying breakage using the 
procedure described in Sec. 1605.2. The loan payment record must 
contain the ``as of'' date for which the loan payment was deducted.
    (c) All contributions or loan payments on payment records contained 
in a payroll submission that was received from an employing agency more 
than 30 days after the pay date associated

[[Page 209]]

with the payroll submission (as reported on the appropriate journal 
voucher), will be subject to breakage calculated, posted, and charged to 
the employing agency (or forfeited to the TSP) in accordance with Sec. 
1605.2. The employing agency will be apprised of the breakage due for 
each record reported on the late submission.

[68 FR 35501, June 13, 2003]



Sec. 1605.16  Claims for correction of employing agency errors; time limitations.

    (a) Agency's discovery of error. 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 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 it was discovered, the agency may 
exercise sound discretion in deciding whether to correct it, but, in any 
event, the agency must act promptly in doing so.
    (b) Participant's discovery of error. 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 retirement 
system misclassification error as covered by paragraph (c) of this 
section), the participant may file a claim with his or her employing 
agency to have the error corrected 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; if the participant files a claim to 
correct any such error after that time, the agency may do so at its 
sound discretion.
    (c) Retirement system misclassification error. Errors arising from 
retirement system misclassification must be corrected no matter when 
they are discovered, whether by an agency or a participant.
    (d) Agency procedures. 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:
    (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;
    (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;
    (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
    (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.

[66 FR 44277, Aug. 22, 2001, as amended at 70 FR 32212, June 1, 2005]

[[Page 210]]



               Subpart C_Board or TSP Record Keeper Errors



Sec. 1605.21  Plan-paid breakage and other corrections.

    (a) Plan-paid breakage. (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 investment gains or losses the account have received had the error 
not occurred, the account will be credited accordingly.
    (2) Errors that warrant the crediting of breakage under paragraph 
(a)(1) of this section include, but are not limited to:
    (i) Delay in crediting contributions or other money to a 
participant's account;
    (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
    (iii) Investment of all or part of a participant's account in the 
wrong investment fund(s).
    (3) A participant will not be entitled to breakage under paragraph 
(a)(1) of this section if the participant had the use of the money on 
which the investment gains would have accrued.
    (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's error, the TSP will compute gains or losses under paragraph 
(a)(1) of this section for the relevant period based upon the investment 
funds in which the affected money would have been invested had the error 
not occurred. If the participant did not have, and should not have had, 
a TSP account during this period, then the TSP will use the G Fund rate 
of return for the relevant period and return the money to the 
participant.
    (b) Other corrections. 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 breakage, if the Executive Director determines that the 
correction would serve the interests of justice and fairness and equity 
among all participants of the TSP.

[70 FR 32212, June 1, 2005]



Sec. 1605.22  Claims for correction of Board or TSP record keeper errors; time limitations.

    (a) Filing claims. 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.
    (b) Board's or TSP record keeper's discovery of error. (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.
    (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.
    (c) Participant's or beneficiary's discovery of error. (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.

[[Page 211]]

    (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 the TSP provides the participant with a 
transaction confirmation reflecting the error, or makes available on its 
Web site a participant statement detailing the error. The Board or TSP 
record keeper must promptly correct such errors.
    (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.
    (d) Processing claims. (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 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.
    (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.

[66 FR 44277, Aug. 22, 2001, as amended at 70 FR 32212, June 1, 2005]



                   Subpart D_Miscellaneous Provisions



Sec. 1605.31  Contributions missed as a result of military service.

    (a) Applicability. 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.
    (b) Missed employee contributions. 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 Sec. 1605.11(c) 
and 5 CFR 1620.42.
    (c) Missed agency contributions. 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:
    (1) The employee is entitled to receive the agency automatic (1%) 
contributions that he or she would have received had he or she 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.
    (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 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.

[[Page 212]]

    (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).
    (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.
    (d) Breakage. The employee is entitled to breakage on agency 
contributions made under paragraph (c) of this section. The employee 
will elect to have the calculation based on either the contribution 
allocation(s) on file for the participant during the period of military 
service or the G Fund; the participant must make this election at the 
same time his or her makeup schedule is established pursuant to Sec. 
1605.11(c).

[67 FR 49525, July 30, 2002, as amended at 70 FR 32212, June 1, 2005]

                          PART 1606 [RESERVED]



PART 1620_EXPANDED AND CONTINUING ELIGIBILITY--Table of Contents

                            Subpart A_General

Sec.
1620.1 Application.
1620.2 Definitions.
1620.3 Contributions.
1620.4 Notices.

 Subpart B_Cooperative Extension Service, Union, and Intergovernmental 
                         Personnel Act Employees

1620.10 Definition.
1620.11 Scope.
1620.12 Employing authority contributions.
1620.13 Retroactive contributions.
1620.14 Payment to the record keeper.

                      Subpart C_Justices and Judges

1620.20 Scope.
1620.21 Contributions.
1620.22 Withdrawals.
1620.23 Spousal rights.

                Subpart D_Nonappropriated Fund Employees

1620.30 Scope.
1620.31 Definition.
1620.32 Employees who move to a NAF instrumentality on or after August 
          10, 1996.
1620.33 [Reserved]
1620.34 Employees who move from a NAF instrumentality to a Federal 
          Government agency.
1620.35 Loan payments.
1620.36 Transmission of information.

  Subpart E_Uniformed Services Employment and Reemployment Rights Act 
                    (USERRA)_Covered Military Service

1620.40 Scope.
1620.41 Definitions.
1620.42 Processing TSP contribution elections.
1620.43 Agency payments to record keeper; agency ultimately responsible.
1620.44 Restoring forfeited agency automatic (1%) contributions.
1620.45 Suspending TSP loans, restoring post-employment withdrawals, and 
          reversing taxable distributions.
1620.46 Agency responsibilities.

    Authority: 5 U.S.C. 8474(b)(5) and (c)(1).
    Subpart C also issued under 5 U.S.C. 8440a(b)(7), 8440b(b)(8), and 
8440c(b)(8).
    Subpart D also issued under sec. 1043(b) of Pub. L. 104-106, 110 
Stat. 186, and sec. 7202(m)(2) of Pub. L. 101-508, 104 Stat. 1388.
    Subpart E also issued under 5 U.S.C. 8432b(1) and 8440e.

    Source: 64 FR 31057, June 9, 1999, unless otherwise noted.



                            Subpart A_General



Sec. 1620.1  Application.

    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 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

[[Page 213]]

VI to the extent that they do not conflict with the regulations of this 
part.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.2  Definitions.

    The definitions generally applicable to the Thrift Savings Plan are 
set forth at 5 CFR 1690.1.

[70 FR 32213, June 1, 2005]



Sec. 1620.3  Contributions.

    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.



Sec. 1620.4  Notices.

    An employing agency must notify affected employees of the 
application of this part as soon as practicable.



 Subpart B_Cooperative Extension Service, Union, and Intergovernmental 
                         Personnel Act Employees



Sec. 1620.10  Definition.

    As used in this subpart, employing authority means the entity that 
employs an individual described in Sec. 1620.11 and which has the 
authority to make personnel compensation decisions for such employee.



Sec. 1620.11  Scope.

    This subpart applies to any individual participating in CSRS or FERS 
who:
    (a) Has been appointed or otherwise assigned to one of the 
cooperative extension services, as defined in 7 U.S.C. 3103(5);
    (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
    (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.



Sec. 1620.12  Employing authority contributions.

    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 commence 
or terminate employer contributions at any time after providing 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.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.13  Retroactive contributions.

    (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.
    (b) An employing authority making retroactive employing agency 
contributions on behalf of a FERS employee described in Sec. 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.
    (c) CSRS and FERS employees covered by this subpart can make 
retroactive employee contributions relating to periods of service 
described in Sec. 1620.12, unless they already have been given the 
opportunity to make contributions for these periods of service.



Sec. 1620.14  Payment to the record keeper.

    (a) The employing authority of a cooperative extension service 
employee (described at Sec. 1620.11(a)) is responsible for transmitting 
employer and employee contributions to the TSP record keeper.

[[Page 214]]

    (b) The employing authority of a union employee or an 
Intergovernmental Personnel Act employee (described at Sec. 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.



                      Subpart C_Justices and Judges



Sec. 1620.20  Scope.

    (a) This subpart applies to:
    (1) A justice or judge of the United States as defined in 28 U.S.C. 
451;
    (2) A bankruptcy judge appointed under 28 U.S.C. 152 or a United 
States magistrate judge 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;
    (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
    (4) A judge of the Court of Veterans Appeals appointed under 38 
U.S.C. 7253.
    (b) This subpart does not apply to a bankruptcy judge or a United 
States magistrate judge 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.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.21  Contributions.

    (a) An individual covered under this subpart can make contributions 
to the TSP from basic pay in the amount described at 5 CFR 
1600.22(a)(1). Unless stated otherwise in this subpart, he or she is 
covered by the same rules that apply to a CSRS participant in the TSP.
    (b) The following amounts are not basic pay and no TSP contributions 
can be made from them:
    (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);
    (2) Amounts received by a bankruptcy judge or a United States 
magistrate judge under a judges' annuity described at 28 U.S.C. 377;
    (3) An annuity or salary received by a judge of the United States 
Court of Federal Claims under 28 U.S.C. 178; and
    (4) Retired pay received by a judge of the United States Court of 
Veterans Appeals under 38 U.S.C. 7296.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.22  Withdrawals.

    (a) Post-employment withdrawal. An individual covered under this 
subpart can make a post-employment withdrawal election described at 5 
U.S.C. 8433(b):
    (1) Upon separation from Government employment.
    (2) In addition to the circumstance described in paragraph (a)(1) of 
this section, a post-employment withdrawal election can be made by:
    (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);
    (ii) A bankruptcy judge or a United States magistrate judge 
receiving a judges' annuity under 28 U.S.C. 377;
    (iii) A judge of the United States Court of Federal Claims receiving 
an annuity or salary under 28 U.S.C. 178; and
    (iv) A judge of the United States Court of Veterans Appeals 
receiving retired pay under 38 U.S.C. 7296.
    (b) In-service withdrawals. An individual covered under this subpart 
can request an in-service withdrawal described at 5 U.S.C. 8433(h) if he 
or she:
    (1) Has not separated from Government employment; and

[[Page 215]]

    (2) Is not receiving retired pay as described in paragraph (a)(2) of 
this section.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.23  Spousal rights.

    (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).
    (b) A current or former spouse of a bankruptcy judge, a United 
States magistrate judge, 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 is covered under this subpart.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32213, June 1, 2005]



                Subpart D_Nonappropriated Fund Employees



Sec. 1620.30  Scope.

    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)).



Sec. 1620.31  Definition.

    As used in this subpart, move means moving from a position covered 
by CSRS or FERS to a NAF instrumentality of the DOD or Coast Guard, or 
vice versa, without a break in service of more than one year.



Sec. 1620.32  Employees who move to a NAF instrumentality on or after August 10, 1996.

    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.



Sec. 1620.33  [Reserved]



Sec. 1620.34  Employees who move from a NAF instrumentality to a Federal Government agency.

    (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.
    (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.



Sec. 1620.35  Loan payments.

    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.



Sec. 1620.36  Transmission of information.

    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 from Federal Government service as of the 
date of the move.

[[Page 216]]



  Subpart E_Uniformed Services Employment and Reemployment Rights Act 
                    (USERRA)_Covered Military Service



Sec. 1620.40  Scope.

    To be covered by this subpart, an employee must have:
    (a) Separated from Federal civilian service or entered leave-
without-pay status in order to perform military service; and
    (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
    (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.



Sec. 1620.41  Definitions.

    As used in this subpart:
    Current contributions means contributions that must be made for the 
current pay date which is reported on the journal voucher that 
accompanies the payroll submission.
    Nonpay status means an employer-approved temporary absence from 
duty.
    Reemployed or returned to pay status 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.
    Retroactive period 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.
    Separate from civilian service 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.

[67 FR 49525, July 30, 2002]



Sec. 1620.42  Processing TSP contribution elections.

    (a) Current contribution election. 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. If the employee separated to perform military 
service, he or she must make a new contribution election to begin 
current contributions.
    (b) Makeup contribution election. Upon reemployment or return to pay 
status, an employee has 60 days to elect to make up missed 
contributions. An employee's right to make retroactive TSP contributions 
will expire if an election is not made within 60 days of the 
participant's reemployment or return to pay status.
    (c) Makeup contributions. Makeup contributions will be processed as 
follows:
    (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 
determining the makeup contributions, unless the employee submits a new 
contribution election which he or she could otherwise have made but for 
the performance of military service.
    (2) An employee who terminated contributions within two months of 
entering military service will also be eligible to make a retroactive 
contribution election to be effective on the date the contributions were 
terminated.

[70 FR 32213, June 1, 2005]



Sec. 1620.43  Agency payments to record keeper; agency ultimately responsible.

    (a) Agency making payments to record keeper. The current employing 
agency is responsible for making payments to the record keeper for all 
contributions, regardless of whether some of that expense is ultimately 
chargeable to a prior employing agency.
    (b) Agency ultimately chargeable with expense. The agency that 
reemployed

[[Page 217]]

the participant is ordinarily the agency ultimately chargeable with the 
expense of agency contributions and the breakage attributable to them. 
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.
    (c) Reimbursement by agency ultimately chargeable with expense. If 
the agency that made the payments to the record keeper for agency 
contributions 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.

[70 FR 32213, June 1, 2005]



Sec. 1620.44  Restoring forfeited agency automatic (1%) contributions.

    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 Sec. 1620.46(e) to have those funds restored.

[64 FR 31057, June 9, 1999, as amended at 67 FR 49526, July 30, 2002]



Sec. 1620.45  Suspending TSP loans, restoring post-employment withdrawals, and reversing taxable distributions.

    (a) Suspending TSP loans during nonpay status. 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.
    (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 deducting 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 
maximum 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.
    (2) The TSP may close the loan account and declare it to be a 
taxable distribution if the TSP does not receive documentation that the 
employee entered into nonpay status. However, the taxable distribution 
can be reversed in accordance with paragraph (c) of this section.
    (b) Restoring post-employment withdrawals. 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.
    (c) Reversing taxable distributions. 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:
    (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;
    (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 
maximum loan repayment term plus the length of military service, and if, 
after reinstatement of the loan, the employee will have no more than two

[[Page 218]]

outstanding loans, only one of which is a residential loan; and
    (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.
    (d) Breakage. Employees will not receive breakage on amounts 
returned to their accounts under this section.

[67 FR 49526, July 30, 2002, as amended at 70 FR 32213, June 1, 2005]



Sec. 1620.46  Agency responsibilities.

    (a) General. 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.
    (b) Agency records; procedure for reimbursement. The agency making 
payments to the record keeper for all contributions and attributable 
breakage will obtain from prior employing agencies whatever information 
is necessary to make accurate payments. If a prior employing agency is 
ultimately chargeable under Sec. 1620.43(b) for all or part of this 
expense, 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.
    (c) Payment schedule; matching contributions report. 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.
    (d) Agency automatic (1%) contributions. Employing agencies must 
calculate the agency automatic (1%) contributions for all reemployed (or 
restored) FERS employees and report those contributions to the record 
keeper within 60 days of reemployment.
    (e) Forfeiture restoration. 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 complete and file the appropriate paper TSP form with the TSP 
record keeper in accordance with the form's instructions to have those 
funds restored.
    (f) Thrift Savings Plan Service Computation Date. 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.

[64 FR 31057, June 9, 1999, as amended at 70 FR 32214, June 1, 2005]



PART 1630_PRIVACY ACT REGULATIONS--Table of Contents

Sec.
1630.1 Purpose and scope.
1630.2 Definitions.
1630.3 Publication of systems of records maintained.
1630.4 Request for notification and access.
1630.5 Granting access to a designated individual.
1630.6 Action on request.
1630.7 Identification requirements.
1630.8 Access of others to records about an individual.
1630.9 Access to the history (accounting) of disclosures from records.
1630.10 Denials of access.
1630.11 Requirements for requests to amend records.
1630.12 Action on request to amend a record.
1630.13 Procedures for review of determination to deny access to or 
          amendment of records.
1630.14 Appeals process.
1630.15 Exemptions.
1630.16 Fees.
1630.17 Federal agency requests.
1630.18 Penalties.

    Authority: 5 U.S.C. 552a.

    Source: 55 FR 18852, May 7, 1990, unless otherwise noted.



Sec. 1630.1  Purpose and scope.

    These regulations implement the Privacy Act of 1974, 5 USC 552a. The 
regulations apply to all records maintained

[[Page 219]]

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.



Sec. 1630.2  Definitions.

    For the purposes of this part--
    (a) Account number means the number assigned by the Agency to each 
participant's TSP account which serves as the primary identification 
mechanism for a participant's account. The participant's Social Security 
number will remain the identifier for the submission of data and funds 
from agency and uniformed services payroll offices, for the submission 
of information to the Internal Revenue Service about distributions, and 
for some other administrative purposes.
    (b) Agency means agency as defined in 5 USC 552(e);
    (c) Board means the Federal Retirement Thrift Investment Board;
    (d) Case reference number means the number assigned by the Agency to 
the recipient of a court order payment or a death benefit payment.
    (e) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (f) Maintain means to collect, use, or distribute;
    (g) Record 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;
    (h) Record keeper means the entity that is engaged by the Board to 
perform record keeping services for the TSP;
    (i) Routine use 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;
    (j) System manager 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;
    (k) System of records 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;
    (l) Statistical record 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;
    (m) Subject individual means the individual by whose name or other 
identifying particular a record is maintained or retrieved;
    (n) TSP 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);
    (o) TSP participant means any individual for whom a TSP account has 
been established. This includes former participants, i.e., participants 
whose accounts have been closed;
    (p) TSP records means those records maintained by the record keeper;
    (q) VRS (Voice Response System) means the fully automated telephone 
information system for TSP account records;
    (r) Work days 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.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67693, 67695, Dec. 3, 
1999; 72 FR 51353, Sept. 7, 2007]



Sec. 1630.3  Publication of systems of records maintained.

    (a) Prior to the establishment or revision of a system of records, 
the Board will publish in the Federal Register 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.

[[Page 220]]

Technical or typographical corrections are not considered to be 
revisions of a system.
    (b) When a system of records is established or revised, the Board 
will publish in the Federal Register a notice about the system. The 
notice shall include:
    (1) The system name,
    (2) The system location,
    (3) The categories of individuals covered by the system,
    (4) The categories of records in the system,
    (5) The Board's authority to maintain the system,
    (6) The routine uses of the system,
    (7) The Board's policies and practices for maintenance of the 
system,
    (8) The system manager,
    (9) The procedures for notification, access to and correction of 
records in the system, and
    (10) The sources of information for the system.



Sec. 1630.4  Request for notification and access.

    (a) TSP records. (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 is provided at http://www.tsp.gov. Telephone inquiries are subject 
to the verification procedures set forth in Sec. 1630.7. A written 
inquiry from a participant must include the participant's name and the 
participant's account number or Social Security number. A written 
inquiry from a spouse or former spouse or a beneficiary of the 
participant must include the inquiring party's name and Social Security 
number or, if available, the case reference number as well as the name 
and Social Security number or account number of the participant. Other 
third party inquiries (e.g., from other Federal agencies authorized to 
obtain information about the participant's account) must include, at a 
minimum, the participant's name and Social Security number.

To obtain information about or gain access to TSP records about you

 
------------------------------------------------------------------------
                                                         If you are a
                                                        participant who
                                     If you are a     has separated from
          If you want:            participant who is  Federal employment
                                   a current Federal     or a spouse,
                                       employee:       former spouse, or
                                                         beneficiary:
------------------------------------------------------------------------
To make inquiry as to whether     Call or write to    Call or write to
 you are a subject of this         your employing      TSP record
 system of records..               agency in           keeper.
                                   accordance with
                                   agency procedures
                                   for personnel or
                                   payroll records.
To gain access to a record about  Call or write to    Call or write to
 you.                              your employing      TSP record
                                   agency to request   keeper.
                                   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.
To learn the history of           Write to TSP        Write to TSP
 disclosures of records about      record keeper..     record keeper.
 you to entities other than the
 participant's employing agency
 or the Board or auditors see
 Sec.  1630.4 (a)(4).
------------------------------------------------------------------------

    (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 www.tsp.gov. To use 
the TSP ThriftLine, the participant must have a touch-tone telephone and 
call the following number: (877) 968-3778. 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 or withdrawal application; and an

[[Page 221]]

interfund transfer request. To access these features, the participant 
may be required to provide identity and account verification information 
such as his or her account number, PIN, or Web password.
    (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.
    (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).
    (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.
    (b) Non-TSP Board records. 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 Federal Register 
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.

[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994; 64 
FR 67693, 67695, Dec. 3, 1999; 71 FR 50319, Aug. 25, 2006; 72 FR 51353, 
Sept. 7, 2007]



Sec. 1630.5  Granting access to a designated individual.

    (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.
    (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.

[55 FR 18852, May 7, 1990, as amended at 59 FR 26409, May 20, 1994; 64 
FR 67694, Dec. 3, 1999]



Sec. 1630.6  Action on request.

    (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.
    (b) At a minimum, the acknowledgement to a request for access shall 
include:
    (1) When and where the records will be available;
    (2) Name, title and telephone number of the official who will make 
the records available;

[[Page 222]]

    (3) Whether access will be granted only by providing a copy of the 
record 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;
    (4) Fee, if any, charged for copies (See Sec. 1630.16); and
    (5) If necessary, documentation required to verify the identity of 
the requester (See Sec. 1630.7).

[55 FR 18852, May 7, 1990, as amended at 67694, 67695, Dec. 3, 1999]



Sec. 1630.7  Identification requirements.

    (a) In person. 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 Sec. 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.
    (b) In writing. A participant shall provide his or her name, date of 
birth, and account number or Social Security number and shall sign the 
request. Most other individuals shall provide the participant's account 
number or Social Security number, shall provide a statement of 
relationship to the participant unless it is clearly identified in the 
nature of the correspondence, 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.
    (c) By telephone. (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 account numbers (or 
case reference numbers) or Social Security numbers.
    (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, account number (or case reference 
number) or 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.
    (3) A participant may also access the TSP Web site or call the TSP 
ThriftLine to obtain account information. These systems may require 
identity and account verification information such as the participant's 
account number and Web password or PIN for the Web site and ThriftLine 
respectively.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999; 72 
FR 51354, Sept. 7, 2007]



Sec. 1630.8  Access of others to records about an individual.

    (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.
    (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:
    (1) To officers or employees (including contract employees) of the 
Board or the record keeper who need the information to perform their 
official duties;

[[Page 223]]

    (2) Pursuant to the requirements of the Freedom of Information Act, 
5 U.S.C. 552;
    (3) For a routine use that has been published in a notice in the 
Federal Register (routine uses for the Board's systems of records are 
published separately in the Federal Register and are available from the 
Board's Privacy Act Officer);
    (4) To the Bureau of the Census for uses under title 13 of the 
United States Code;
    (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);
    (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;
    (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;
    (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;
    (9) To either House of Congress, or to a Congressional committee or 
subcommittee if the subject matter is within its jurisdiction;
    (10) To the Comptroller General, or an authorized representative, in 
the course of the performance of the duties of the General Accounting 
Office;
    (11) Pursuant to the order of a court of competent jurisdiction; or
    (12) To a consumer reporting agency in accordance with section 
3711(f) of Title 31.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, Dec. 3, 1999]



Sec. 1630.9  Access to the history (accounting) of disclosures from records.

    Rules governing access to the accounting of disclosures are the same 
as those for granting access to the records as set forth in Sec. 
1630.4.



Sec. 1630.10  Denials of access.

    (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:
    (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
    (2) The Board has published rules in the Federal Register exempting 
the pertinent system of records from the access requirement.
    (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.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]



Sec. 1630.11  Requirements for requests to amend records.

    (a) TSP records. (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:

------------------------------------------------------------------------
                    To correct or amend a TSP record
-------------------------------------------------------------------------
                                                         If you are a
                                     If you are a       participant who
    If the type of record is:     participant who is  has separated from
                                   a current Federal  Federal employment
                                  employee write to:       write to:
------------------------------------------------------------------------
Personnel or personal records     Write to your       Write to TSP
 (e.g., age, address, Social       employing agency..  record keeper.
 Security number, date of
 birth)..

[[Page 224]]

 
The agency's and the              Write to your       Write to your
 participant's contributions,      employing agency..  former employing
 and adjustments to                                    agency.
 contributions..
Earnings, investment allocation,  Write to TSP        Write to TSP
 interfund transfers, loans,       record keeper..     record keeper.
 loan repayments, and
 withdrawals.
------------------------------------------------------------------------

    (2) The address of the record keeper is listed in Sec. 1630.4(a).
    (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 
Sec. Sec. 1630.12-1630.14, or if covered by the above chart the 
employing, or former employing, agency's Privacy Act procedures.
    (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.
    (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.
    (b) Non-TSP records. (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 
Sec. 1630.4. The words ``Privacy Act--Request to Amend Record'' should 
be written on the letter and the envelope.
    (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 Federal Register; 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 
Sec. Sec. 1630.4, 1630.5, 1630.6 or Sec. 1630.7, copies of previous 
correspondence between the requester and the Board should be attached, 
if possible.
    (3) If the individual's identity has not been previously verified, 
the Board may require documentation of identification as described in 
Sec. 1630.7.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67694, 67695, Dec. 3, 
1999]



Sec. 1630.12  Action on request to amend a record.

    (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 Sec. 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

[[Page 225]]

the date of receipt. A copy of the transmittal letter will be sent to 
the requester.
    (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.
    (c) The final response will include the decision whether to grant or 
deny the request. If the request is denied, the response will include:
    (1) The reasons for the decision;
    (2) The name and address of the official to whom an appeal should be 
directed;
    (3) The name and address of the official designated to assist the 
individual in preparing the appeal;
    (4) A description of the appeal process with the Board; and
    (5) A description of any other procedures which may be required of 
the individual in order to process the appeal.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]



Sec. 1630.13  Procedures for review of determination to deny access to or amendment of records.

    (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.
    (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:
    (1) The records involved;
    (2) The date of the initial request for access to or amendment of 
the record;
    (3) The date of the Board's denial of that request; and
    (4) The reasons supporting the request for reversal of the Board's 
decision.

Copies of previous correspondence from the Board denying the request to 
access or amend the record should also be attached, if possible.
    (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.

[55 FR 18852, May 7, 1990, as amended at 59 FR 55331, Nov. 7, 1994]



Sec. 1630.14  Appeals process.

    (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.
    (b) If the original request was for access and the initial 
determination is reversed, the procedures in Sec. 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).
    (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

[[Page 226]]

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 
Sec. 1630.9.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]



Sec. 1630.15  Exemptions.

    (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 such records pursuant to this part) if such 
portions are:
    (1) Subject to the provisions of section 552(b)(1) of the Freedom of 
Information Act, 5 U.S.C. 552;
    (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;
    (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;
    (4) Required by statute to be maintained and used solely as 
statistical records;
    (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;
    (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
    (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.
    (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.
    (c) Nothing in this part will allow an individual access to any 
information compiled in reasonable anticipation of a civil action or 
proceeding.



Sec. 1630.16  Fees.

    (a) Individuals will not be charged for:
    (1) The search and review of the record; and
    (2) Copies of ten (10) or fewer pages of a requested record.
    (b) Records of more than 10 pages will be photocopied for 15 cents a 
page. If the record is larger than 8\1/2\ x 14 inches, the fee will be 
the cost of reproducing the record through Government or commercial 
sources.
    (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 Sec. 1630.4.
    (d) The Head, TSP Service Office or the Privacy Act Officer may 
waive the fee if:

[[Page 227]]

    (1) The cost of collecting the fee exceeds the amount to be 
collected; or
    (2) The production of the copies at no charge is in the best 
interest of the Board.
    (e) A receipt will be furnished on request.

[55 FR 18852, May 7, 1990, as amended at 64 FR 67695, Dec. 3, 1999]



Sec. 1630.17  Federal agency requests.

    Employing agencies needing automated data processing services from 
the Board in order to reconcile agency TSP records for TSP purposes may 
be charged rates based upon the factors of:
    (a) Fair market value;
    (b) Cost to the TSP; and
    (c) Interests of the participants and beneficiaries.



Sec. 1630.18  Penalties.

    (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.
    (b) [Reserved]



PART 1631_AVAILABILITY OF RECORDS--Table of Contents

   Subpart A_Production or Disclosure of Records Under the Freedom of 
                      Information Act, 5 U.S.C. 552

Sec.
1631.1 Definitions.
1631.2 Purpose and scope.
1631.3 Organization and functions.
1631.4 Public reference facilities and current index.
1631.5 Records of other agencies.
1631.6 How to request records--form and content.
1631.7 Initial determination.
1631.8 Prompt response.
1631.9 Responses--form and content.
1631.10 Appeals to the General Counsel from initial denials.
1631.11 Fees to be charged--categories of requesters.
1631.12 Waiver or reduction of fees.
1631.13 Prepayment of fees over $250.
1631.14 Fee schedule.
1631.15 Information to be disclosed.
1631.16 Exemptions.
1631.17 Deletion of exempted information.
1631.18 Annual report.

 Subpart B_Production in Response to Subpoenas or Demands of Courts or 
                            Other Authorities

1631.30 Purpose and scope.
1631.31 Production prohibited unless approved by the Executive Director.
1631.32 Procedure in the event of a demand for disclosure.
1631.33 Procedure in the event of an adverse ruling.
1631.34 Certification and authentication of records.

    Authority: 5 U.S.C. 552.

    Source: 55 FR 41052, Oct. 9, 1990, unless otherwise noted.



   Subpart A_Production or Disclosure of Records Under the Freedom of 
                      Information Act, 5 U.S.C. 552



Sec. 1631.1  Definitions.

    (a) Board means the Federal Retirement Thrift Investment Board.
    (b) Agency means agency as defined in 5 U.S.C. 552(e).
    (c) Executive Director 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.
    (d) FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.
    (e) FOIA Officer means the Board's Director of Administration or his 
or her designee.
    (f) General Counsel means the General Counsel of the Federal 
Retirement Thrift Investment Board.
    (g) Working days or workdays means those days when the Board is open 
for the conduct of Government business, and does not include Saturdays, 
Sundays, and Federal holidays.

[[Page 228]]

    (h) Requester means a person making a FOIA request.
    (i) Submitter 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.



Sec. 1631.2  Purpose and scope.

    This subpart contains the regulations of the Federal Retirement 
Thrift Investment Board, implementing 5 U.S.C. 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.



Sec. 1631.3  Organization and functions.

    (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 et seq.). Its primary function is to manage and invest the 
Thrift Savings Fund for the exclusive benefit of its participants (e.g., 
participating Federal employees, Federal judges, and Members of 
Congress). The Board is responsible for investment of the assets of the 
Thrift Savings Fund and the management of the Thrift Savings Plan. The 
Board consists of:
    (1) The five part-time members who serve on the Board;
    (2) The Office of the Executive Director;
    (3) The Office of Investments;
    (4) The Office of the General Counsel;
    (5) The Office of Benefits and Program Analysis;
    (6) The Office of Accounting;
    (7) The Office of Administration;
    (8) The Office of External Affairs;
    (9) The Office of Automated Systems; and
    (10) The Office of Communications.
    (b) The Board has no field organization; however, it provides for 
its recordkeeping responsibility by contract or interagency agreement. 
The recordkeeper may be located outside of the Washington, DC area. 
Thrift Savings Plan records maintained for the Board by its recordkeeper 
are Board records subject to these regulations. Board offices are 
presently located at 1250 H Street, NW., Washington, DC 20005.

[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, Nov. 7, 1994]



Sec. 1631.4  Public reference facilities and current index.

    (a) The Board maintains a public reading area located in room 4308 
at 1250 H Street, NW., Washington, DC. Reading area hours are from 9:00 
A.M. to 5:00 P.M., Monday through Friday, exclusive of Federal holidays. 
Electronic reading room documents are available through http://
www.frtib.gov. In the reading area and through the Web site, the Board 
makes available for public inspection, copying, and downloading 
materials required by 5 U.S.C. 552(a)(2), including documents published 
by the Board in the Federal Register which are currently in effect.
    (b) The FOIA Officer shall maintain an index of Board regulations, 
directives, bulletins, and published materials.
    (c) The FOIA officer shall also maintain a file open to the public, 
which shall contain copies of all grants or denials of FOIA requests, 
appeals, and appeal decisions by the General Counsel. The materials 
shall be filed by chronological number of request within each calendar 
year, indexed according to the exceptions asserted, and, to the extent 
feasible, indexed according to the type of records requested.

[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, 55332, Nov. 7, 
1994; 63 FR 41708, Aug. 5, 1998]



Sec. 1631.5  Records of other agencies.

    Requests for records that originated in another agency and that are 
in the custody of the Board may, in appropriate circumstances, be 
referred to that agency for consultation or processing, and the person 
submitting the request shall be so notified.

[[Page 229]]



Sec. 1631.6  How to request records--form and content.

    (a) A request made under the FOIA must be submitted in writing, 
addressed to: FOIA Officer, Federal Retirement Thrift Investment Board, 
1250 H Street, NW., Washington, DC 20005. The words ``FOIA Request'' 
should be clearly marked on both the letter and the envelope.
    (b) Each request must reasonably describe the record(s) sought, 
including, when known: Entity/individual originating the record, date, 
subject matter, type of document, location, and any other pertinent 
information which would assist in promptly locating the record(s). Each 
request should also describe the type of entity the requester is for fee 
purposes. See Sec. 1631.11.
    (c) When a request is not considered reasonably descriptive, or 
requires the production of voluminous records, or places an 
extraordinary burden on the Board, seriously interfering with its normal 
functioning to the detriment of the Thrift Savings Plan, the Board may 
require the person or agent making the FOIA request to confer with a 
Board representative in order to attempt to verify, and, if possible, 
narrow the scope of the request.
    (d) Upon initial receipt of the FOIA request, the FOIA Officer will 
determine which official or officials within the Board shall have the 
primary responsibility for collecting and reviewing the requested 
information and drafting a proposed response.
    (e) Any Board employee or official who receives a FOIA request shall 
promptly forward it to the FOIA Officer, at the above address. Any Board 
employee or official who receives an oral request made under the FOIA 
shall inform the person making the request of the provisions of this 
subpart requiring a written request according to the procedures set out 
herein.
    (f) When a person requesting expedited access to records has 
demonstrated a compelling need, or when the Board has determined that it 
is appropriate to expedite its response, the Board will process the 
request ahead of other requests.
    (g) To demonstrate compelling need in accordance with paragraph (f) 
of this section, the requester must submit a written statement that 
contains a certification that the information provided therein is true 
and accurate to the best of the requester's knowledge and belief. The 
statement must demonstrate that:
    (1) The failure to obtain the record on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) The requester is a person primarily engaged in the dissemination 
of information, and there is an urgent need to inform the public 
concerning an actual or alleged Federal Government activity that is the 
subject of the request.

[55 FR 41052, Oct. 9, 1990, as amended at 59 FR 55331, Nov. 7, 1994; 63 
FR 41708, Aug. 5, 1998]



Sec. 1631.7  Initial determination.

    The FOIA Officer shall have the authority to approve or deny 
requests received pursuant to these regulations. The decision of the 
FOIA Officer shall be final, subject only to administrative review as 
provided in Sec. 1631.10.



Sec. 1631.8  Prompt response.

    (a)(1) When the FOIA Officer receives a request for expedited 
processing, he or she will determine within 10 work days whether to 
process the request on an expedited basis.
    (2) When the FOIA Officer receives a request for records which he or 
she, in good faith, believes is not reasonably descriptive, he or she 
will so advise the requester within 5 work days. The time limit for 
processing such a request will not begin until receipt of a request that 
reasonably describes the records being sought.
    (b) The FOIA Officer will either approve or deny a reasonably 
descriptive request for records within 20 work days after receipt of the 
request, unless additional time is required for one of the following 
reasons:
    (1) It is necessary to search for and collect the requested records 
from other establishments that are separate from the office processing 
the request (e.g., the record keeper);
    (2) It is necessary to search for, collect, and examine a voluminous 
amount of records which are demanded in a single request;

[[Page 230]]

    (3) It is necessary to consult with another agency which has a 
substantial interest in the determination of the request or to consult 
with two or more offices of the Board which have a substantial subject 
matter interest in the records; or
    (4) It is necessary to devote resources to the processing of an 
expedited request under Sec. 1631.6(f).
    (c) When additional time is required for one of the reasons stated 
in paragraph (b) of this section, the FOIA Officer will extend this time 
period for an additional 10 work days by written notice to the 
requester. If the Board will be unable to process the request within 
this additional time period, the requester will be notified and given 
the opportunity to--
    (1) Limit the scope of the request; or
    (2) Arrange with the FOIA Officer an alternative time frame for 
processing the request.

[63 FR 41708, Aug. 5, 1998]



Sec. 1631.9  Responses--form and content.

    (a) When a requested record has been identified and is available, 
the FOIA officer shall notify the person making the request as to where 
and when the record is available for inspection or that copies will be 
made available. The notification shall also advise the person making the 
request of any fees assessed under Sec. 1631.13 of this part.
    (b) A denial or partial denial of a request for a record shall be in 
writing signed by the FOIA Officer and shall include:
    (1) The name and title of the person making the determination;
    (2) A statement of fees assessed, if any; and
    (3) A reference to the specific exemption under the FOIA authorizing 
the withholding of the record, and a brief explanation of how the 
exemption applies to the record withheld; or
    (4) If appropriate, a statement that, after diligent effort, the 
requested records have not been found or have not been adequately 
examined during the time allowed by Sec. 1631.8, and that the denial 
will be reconsidered as soon as the search or examination is complete; 
and
    (5) A statement that the denial may be appealed to the General 
Counsel within 30 calendar days of receipt of the denial or partial 
denial.
    (c) If, after diligent effort, existing requested records have not 
been found, or are known to have been destroyed or otherwise disposed 
of, the FOIA Officer shall so notify the requester.



Sec. 1631.10  Appeals to the General Counsel from initial denials.

    (a) When the FOIA Officer has denied a request for expedited 
processing or a request for records, in whole or in part, the person 
making the request may, within 30 calendar days of receipt of the 
response of the FOIA Officer, appeal the denial to the General Counsel. 
The appeal must be in writing, addressed to the General Counsel, Federal 
Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 
20005, and be clearly labeled as a ``Freedom of Information Act 
Appeal.''
    (b)(1) The General Counsel will act upon the appeal of a denial of a 
request for expedited processing within 5 work days of its receipt.
    (2) The General Counsel will act upon the appeal of a denial of a 
request for records within 20 work days of its receipt.
    (c) The General Counsel will decide the appeal in writing and mail 
the decision to the requester.
    (d) If the appeal concerns an expedited processing request and the 
decision is in favor of the person making the request, the General 
Counsel will order that the request be processed on an expedited basis. 
If the decision concerning a request for records is in favor of the 
requester, the General Counsel will order that the subject records be 
promptly made available to the person making the request.
    (e) If the appeal of a request for expedited processing of records 
is denied, in whole or in part, the General Counsel's decision will set 
forth the basis for the decision. If the appeal of a request for records 
is denied, in whole or in part, the General Counsel's decision will set 
forth the exemption relied on and a brief explanation of how the 
exemption applies to the records withheld and the reasons for asserting 
it, if different from the reasons described by the FOIA Officer under 
Sec. 1631.9. The denial of a request for records will state that the

[[Page 231]]

person making the request may, if dissatisfied with the decision on 
appeal, file a civil action in Federal court. (A Federal court does not 
have jurisdiction to review a denial of a request for expedited 
processing after the Board has provided a complete response to the 
request.)
    (f) No personal appearance, oral argument, or hearing will 
ordinarily be permitted in connection with an appeal of a request for 
expedited processing or an appeal for records.
    (g) On appeal of a request concerning records, the General Counsel 
may reduce any fees previously assessed.

[63 FR 41708, Aug. 5, 1998]



Sec. 1631.11  Fees to be charged--categories of requesters.

    (a) There are four categories of FOIA requesters; commercial use 
requesters; representatives of news media; educational and noncommercial 
scientific institutions; and all other requesters. The Freedom of 
Information Reform Act of 1986 prescribes specific levels of fees for 
each of these categories:
    (1) When records are being requested for commercial use, the fee 
policy of the Board is to levy full allowable direct cost of searching 
for, reviewing for release, and duplicating the records sought. 
Commercial users are not entitled to two hours of free search time, nor 
100 free pages of reproduction of documents, nor waiver or reduction of 
fees, based on an assertion that disclosure would be in the public 
interest. The full allowable direct cost of searching for, and 
reviewing, records will be charged even if there is ultimately no 
disclosure of records. Commercial use is defined as a use that furthers 
the commercial trade or profit interests of the requester or person on 
whose behalf the request is made. In determining whether a requester 
falls within the commercial use category, the Board will look to the use 
to which a requester will put the documents requested.
    (2) When records are being requested by representatives of the news 
media, the fee policy of the Board is to levy reproduction charges only, 
excluding charges for the first 100 pages. The phrase ``representatives 
of the news media'' refers to any person actively gathering news for an 
entity that is organized and operated to publish or broadcast news to 
the public. The term ``news'' means information that is about current 
events or that would be of current interest to the public. Examples of 
news media entities include television or radio stations broadcasting to 
the public at large, and publishers of periodicals (but only in those 
instances where they can qualify as disseminators of news) who make 
their products available for purchase or subscription by the general 
public. These examples are not intended to be all-inclusive. As 
traditional methods of news delivery evolve (e.g. electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category. In the case of 
freelance journalists, they 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 the Board 
may also look to the past publication record of a requester in making 
this determination.
    (3) When records are being requested by an educational or 
noncommercial scientific institution whose purpose is scholarly or 
scientific research, the fee policy of the Board is to levy reproduction 
charges only, excluding charges for the first 100 pages. The term 
``educational institution'' refers to a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research. The term 
``noncommercial scientific institution'' refers to an institution that 
is not operated on a commercial basis as that term is defined under 
paragraph (a)(1) of this section and which is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To be eligible 
for inclusion in this category, a requester must show that the

[[Page 232]]

request is being made 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 noncommercial 
scientific institution) research.
    (4) For any other request which does not meet the criteria contained 
in paragraphs (a) (1) through (3) of this section, the fee policy of the 
Board is to levy full reasonable direct cost of searching for and 
duplicating the records sought, except that the first 100 pages of 
reproduction and the first two hours of search time will be furnished 
without charge. If computer search time is required, the first two hours 
of computer search time will be based on the hourly cost of operating 
the central processing unit and the operator's hourly salary plus 23.5 
percent. When the cost of the computer search, including the operator 
time and the cost of operating the computer to process the request, 
equals the equivalent dollar amount of two hours of the salary of the 
person performing the search, i.e., the operator, the Board shall begin 
assessing charges for computer search. Requests from individuals 
requesting records about themselves filed in the Board's systems of 
records shall continue to be treated under the provisions of the Privacy 
Act of 1974, which permit fees only for reproduction. The Board's fee 
schedule is set out in Sec. 1631.14 of this part.
    (b) Except for requests that are for a commercial use, the Board may 
not charge for the first two hours of search time or for the first 100 
pages of reproduction. However, a requestor may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When the Board 
believes that a requester or, on rare occasions, a group of requesters 
acting in concert, is attempting to break a request down into a series 
of requests for the purpose of evading the assessment of fees, the Board 
may aggregate any such requests and charge accordingly. For example, it 
would be reasonable to presume that multiple requests of this type made 
within a 30 calendar day period had been made to avoid fees. For 
requests made over a long period, however, the Board must have a 
reasonable basis for determining that aggregation is warranted in such 
cases. Before aggregating requests from more than one requester, the 
Board must have a reasonable basis on which to conclude that the 
requesters are acting in concert and are acting specifically to avoid 
payment of fees. In no case may the Board aggregate multiple requests on 
unrelated subjects from one requester.
    (c) In accordance with the prohibition of section (4)(A)(iv) of the 
Freedom of Information Act, as amended, the Board shall 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.
    (1) For commercial use requesters, if the direct cost of searching 
for, reviewing for release, and duplicating the records sought would not 
exceed $25, the Board shall not charge the requester any costs.
    (2) For requests from representatives of news media or educational 
and noncommercial scientific institutions, excluding the first 100 pages 
which are provided at no charge, if the duplication cost would not 
exceed $25, the Board shall not charge the requester any costs.
    (3) For all other requests not falling within the category of 
commercial use requests, representatives of news media, or educational 
and noncommercial scientific institutions, if the direct cost of 
searching for and duplicating the records sought, excluding the first 
two hours of search time and first 100 pages which are free of charge, 
would not exceed $25, the Board shall not charge the requester any 
costs.

[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41708, Aug. 5, 1998]



Sec. 1631.12  Waiver or reduction of fees.

    (a) The Board may waive all fees or levy a reduced fee when 
disclosure of the information requested is deemed to be in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the Board or Federal 
Government and is not primarily in the

[[Page 233]]

commercial interest of the requester. In making its decision on waiving 
or reducing fees, the Board will consider the following factors:
    (1) Whether the subject of the requested records concerns the 
operations or activities of the Board or the Government,
    (2) Whether the disclosure is likely to contribute to an 
understanding of Government operations or activities (including those of 
the Board),
    (3) Whether the disclosure is likely to contribute significantly to 
public understanding of TSP or Government operations or activities,
    (4) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure, and
    (5) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (b) A fee waiver request must indicate the existence and magnitude 
of any commercial interest that the requester has in the records that 
are the subject of the request.



Sec. 1631.13  Prepayment of fees over $250.

    (a) When the Board estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250.00, 
the Board may require a requester to make an advance payment of the 
entire fee before continuing to process the request.
    (b) When a requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 calendar days of the date of the 
billing), the Board may require the requester to pay the full amount 
owed plus any applicable interest as provided in Sec. 1631.14(d), and 
to make an advance payment of the full amount of the estimated fee 
before the agency begins to process a new request or a pending request 
from that requester.
    (c) When the Board acts under paragraph (a) or (b) of this section, 
the administrative time limits prescribed in subsection (a)(6) of the 
FOIA (i.e., 20 working days from the receipt of initial requests and 20 
working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits) will begin only after the 
Board has received fee payments under paragraph (a) or (b) of this 
section.

[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41709, Aug. 5, 1998]



Sec. 1631.14  Fee schedule.

    (a) Manual searches for records. The Board will charge at the salary 
rate(s) plus 23.5 percent (to cover benefits) of the employee(s) 
conducting the search. The Board may assess charges for time spend 
searching, even if the Board fails to locate the records or if records 
located are determined to be exempt from disclosure.
    (b) Computer searches for records. The Board will charge 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, plus 23.5 
percent, apportionable to the search. The Board may assess charges for 
time spent searching, even if the Board fails to locate the records or 
if records located are determined to be exempt from disclosure.
    (c) Duplication costs. (1) For copies of documents reproduced on a 
standard office copying machine in sizes up to 8\1/2\ x 14 inches, the 
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\ x 14 
inches, or whose physical characteristics do not permit reproduction by 
routine electrostatic copying, shall be the direct cost of reproducing 
the records through Government or commercial sources. If the Board 
estimates that the allowable duplication charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester had indicated in advance his/her willingness to pay 
fees as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (3) For copies prepared by computer, such as tapes or printouts, the 
Board

[[Page 234]]

shall charge the actual cost, including operator time, of producing the 
tape or printout. If the Board estimates that the allowable 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/her 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 objective of reformulating the request to meet his/
her needs at a lower cost.
    (4) For other methods of reproduction or duplication, the Board 
shall charge the actual direct costs of producing the document(s). If 
the Board estimates that the allowable 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/her 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 
objective of reformulating the request to meet his/her needs at a lower 
cost.
    (d) Interest may be charged to those requesters who fail to pay fees 
charged. The Board may begin assessing interest charges on the amount 
billed starting on the 31st calendar day following the day on which the 
billing was sent. Interest will be at the rate prescribed in section 
3717 of title 31 of the United States Code, and it will accrue from the 
date of the billing.
    (e) The Board shall use the most efficient and least costly methods 
to comply with requests for documents made under the FOIA. The Board may 
choose to contract with private sector services to locate, reproduce, 
and disseminate records in response to FOIA requests when that is the 
most efficient and least costly method. When documents responsive to a 
request are maintained for distribution by agencies operating statutory-
based fee schedule programs, such as, but not limited to, the Government 
Printing Office or the National Technical Information Service, the Board 
will inform requesters of the steps necessary to obtain records from 
those sources.

[55 FR 41052, Oct. 9, 1990, as amended at 63 FR 41709, Aug. 5, 1998]



Sec. 1631.15  Information to be disclosed.

    (a) In general, all records of the Board are available to the 
public, as required by the Freedom of Information Act. However, the 
Board claims the right, where it is applicable, to withhold material 
under the provisions specified in the Freedom of Information Act as 
amended (5 U.S.C. 552(b)).
    (b) Records from non-U.S. Government source. (1) Board personnel 
will generally consider two exemptions in the FOIA in deciding whether 
to withhold from disclosure material from a non-U.S. Government source.
    Exemption 4 permits withholding of ``trade secrets and commercial or 
financial information obtained from a person as privileged or 
confidential.'' Exemption 6 permits withholding certain information, the 
disclosure of which ``would constitute a clearly unwarranted invasion of 
personal privacy.''
    (2)(i) Exemption 4. Commencing January 1, 1988, the submitter of 
confidential commercial information must, at the time the information is 
submitted to the Board or within 30 calendar days of such submission, 
designate any information the disclosure of which the submitter claims 
could reasonably be expected to cause substantial competitive harm. The 
submitter as part of its submission, must explain the rationale for the 
designation of the information as commercial and confidential.
    (ii) Confidential commercial information means records provided to 
the Board by a submitter that arguably contains material exempt from 
release under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), because 
disclosure could reasonably be expected to cause substantial competitive 
harm.
    (iii) After January 1, 1988, a submitter who does not designate 
portions of a submission as confidential commercial information waives 
that basis for nondisclosure unless the Board determines that it has 
substantial reason to believe that disclosure of the requested records 
would result in substantial harm to the competitive position of the 
submitter.
    (3) When the Board determines that it has substantial reason to 
believe that disclosure of the requested records would result in 
substantial competitive

[[Page 235]]

harm to the submitter, and has no designation from the submitter, it 
shall notify the submitter of the following:
    (i) That a FOIA request has been received seeking the record,
    (ii) That disclosure of the record may be required,
    (iii) That disclosure of the record could result in competitive harm 
to the submitter,
    (iv) That the submitter has a period of seven workdays from date of 
notice within which it or a designee may object to the disclosure its 
records, and
    (v) That a detailed explanation should be submitted setting forth 
all grounds as to why the disclosure would result in substantial 
competitive harm, such as, the general custom or usage in the business 
of the information in the record, the number and situation of the 
persons who have access to the record, the type and degree of risk of 
financial injury that release would cause, and the length of time the 
record needs to be kept confidential.
    (4) In exceptional circumstances, the Board may extend by seven 
workdays the time for a submitter's response for good cause.
    (5) The Board shall give careful consideration to all specified 
grounds for nondisclosure prior to making an administrative 
determination on the issue of competitive harm.
    (6) Should the Board determine to disclose the requested records, it 
shall provide written notice to the submitter, explaining briefly why 
the submitter's objections were not sustained and setting forth the date 
for disclosure, which date may be less than 10 calendar days after the 
date of the letter to the submitter.
    (7) A submitter who provided records to the Board prior to January 
1, 1988, and did not designate which records contain confidential 
commercial information, shall be notified as provided in Sec. 
1631.15(b)(3). After making such notification, the Board will follow the 
procedures set forth in Sec. 1631.15(b)(4)-(6).
    (8) The Board will, as a general rule, look favorably upon 
recommendations for withholding information about ideas, methods, and 
processes that are unique; about equipment, materials, or systems that 
are potentially patentable; or about a unique use of equipment which is 
specifically outlined.
    (9) The Board will not withhold information that is known through 
custom or usage in the relevant trade, business, or profession, or 
information that is generally known to any reasonably educated person. 
Self-evident statements or reviews of the general state of the art will 
not ordinarily be withheld.
    (10) The Board will withhold all cost data submitted, except the 
total estimated costs from each year of a contract. It will release 
these total estimated costs and ordinarily release explanatory material 
and headings associated with the cost data, withholding only the figures 
themselves. If a contractor believes that some of the explanatory 
material should be withheld, that material must be identified and a 
justification be presented as to why it should not be released.
    (11) Exemption 6. This exemption is not a blanket exemption for all 
personal information submitted by a non-U.S. Government source. The 
Board will balance the need to keep a person's private affairs from 
unnecessary public scrutiny with the public's right to information on 
Board records. As a general practice, the Board will release information 
about any person named in a contract itself or about any person who 
signed a contract as well as information given in a proposal about any 
officer of a corporation submitting that proposal. Depending upon the 
circumstances, the Board may release most information in resumes 
concerning employees, including education and experience. Efforts will 
be made to identify information that should be deleted and offerors are 
urged to point out such material for guidance. Any information in the 
proposal, such as the names of staff persons, which might, if released, 
constitute an unwarranted invasion of personal privacy if released 
should be identified and a justification for non-release provided in 
order to receive proper consideration.



Sec. 1631.16  Exemptions.

    The Freedom of Information Act exempts from all of its publication 
and disclosure requirements nine categories of records which are 
described

[[Page 236]]

in 5 U.S.C. 552(b). These categories include such matters as national 
defense and foreign policy information, investigatory files, internal 
procedures and communications, materials exempted from disclosure by 
other statutes, information given in confidence and matters involving 
personal privacy.



Sec. 1631.17  Deletion of exempted information.

    Where requested records contain matters which are exempted under 5 
U.S.C. 552(b) but which matters are reasonably segregable from the 
remainder of the records, they shall be disclosed by the Board with 
deletions. To each such record, the Board shall attach a written 
justification for making deletions. A single such justification shall 
suffice for deletions made in a group of similar or related records.



Sec. 1631.18  Annual report.

    The Executive Director will submit annually, on or before February 
1, a Freedom of Information report covering the preceding fiscal year to 
the Attorney General of the United States. The report will include 
matters required by 5 U.S.C. 552(e).

[63 FR 41709, Aug. 5, 1998]



 Subpart B_Production in Response to Subpoenas or Demands of Courts or 
                            Other Authorities



Sec. 1631.30  Purpose and scope.

    This subpart contains the regulations of the Board concerning 
procedures to be followed when a subpoena, order, or other demand 
(hereinafter in this subpart referred to as a ``demand'') of a court or 
other authority is issued for the production or disclosure of:
    (a) Any material contained in the files of the Board;
    (b) Any information relating to materials contained in the files of 
the Board; or
    (c) Any information or material acquired by an employee of the Board 
as a part of the performance of his or her official duties or because of 
his or her official status.



Sec. 1631.31  Production prohibited unless approved by the Executive Director.

    No employee or former employee of the Board shall, in response to a 
demand of a court or other authority, produce any material contained in 
the files of the Board or disclose any information or produce any 
material acquired as part of the performance of his or her official 
status without the prior approval of the Executive Director or his or 
her designee.



Sec. 1631.32  Procedure in the event of a demand for disclosure.

    (a) Whenever a demand is made upon an employee or former employee of 
the Board for the production of material or the disclosure of 
information described in Sec. 1631.31, he or she shall immediately 
notify the Executive Director or his or her designee. If possible, the 
Executive Director or his or her designee shall be notified before the 
employee or former employee concerned replies to or appears before the 
court or other authority.
    (b) If response to the demand is required before instructions from 
the Executive Director or his or her designee are received, an attorney 
designated for that purpose by the Board shall appear with the employee 
or former employee upon whom the demand has been made and shall furnish 
the court or other authority with a copy of the regulations contained in 
this part and inform the court or other authority that the demand has 
been or is being, as the case may be, referred for prompt consideration 
by the Executive Director or his or her designee. The court or other 
authority shall be requested respectfully to stay the demand pending 
receipt of the requested instructions from the Executive Director.



Sec. 1631.33  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 1631.32(b) 
pending receipt of instructions from the Executive Director, or his or 
her designee, or if the court or other authority rules that the demand 
must be complied with irrespective of the instructions

[[Page 237]]

from the Executive Director 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. Touhy v. Ragen, 340 U.S. 462 (1951)].



Sec. 1631.34  Certification and authentication of records.

    (a) Upon request, the records custodian or other qualified 
individual shall authenticate copies of books, records, papers, 
writings, and documents by attaching a written declaration that complies 
with current Federal Rules of Evidence. No seal or notarization shall be 
required. Copies of any books, records, papers, or other documents in 
the Federal Retirement Thrift Investment Board shall be admitted in 
evidence equally with the originals thereof when authenticated in this 
manner.
    (b) Fees for copying and certification are set forth in 5 CFR 
1630.16.

[72 FR 53414, Sept. 19, 2007]



PART 1632_RULES REGARDING PUBLIC OBSERVATION OF MEETINGS--Table of Contents

Sec.
1632.1 Purpose and scope.
1632.2 Definitions.
1632.3 Conduct of agency business.
1632.4 Meetings open to public observation.
1632.5 Exemptions.
1632.6 Public announcement of meetings.
1632.7 Meetings closed to public observation.
1632.8 Changes with respect to publicly announced meetings.
1632.9 Certification of General Counsel.
1632.10 Transcripts, recordings, and minutes.
1632.11 Procedures for inspection and obtaining copies of transcriptions 
          and minutes.

    Authority: 5 U.S.C. 552b and 5 U.S.C. 8474.

    Source: 53 FR 36777, Sept. 22, 1988, unless otherwise noted.



Sec. 1632.1  Purpose and scope.

    This part is issued by the Federal Retirement Thrift Investment 
Board (Board) under section 552b of title 5 of the United States Code, 
the Government in the Sunshine Act, to carry out the policy of the Act 
that the public is entitled to the fullest practicable information 
regarding the decision making processes of the Board while at the same 
time preserving the rights of individuals and the ability of the Board 
to carry out its responsibilities. These regulations fulfill the 
requirement of subsection (g) of the Act that each agency subject to the 
provisions of the Act shall promulgate regulations to implement the open 
meeting requirements of subsections (b) through (f) of the Act.



Sec. 1632.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) The term Act means the Government in the Sunshine Act, 5 U.S.C. 
552b.
    (b) The term Board means the Federal Retirement Thrift Investment 
Board and subdivisions thereof.
    (c) The term meeting means the deliberations of at least the number 
of individual agency members required to take action on behalf of the 
Board where such deliberations determine or result in the joint conduct 
or disposition of official Board business. However, this term does not 
include--
    (1) Deliberations required or permitted by subsection (d) or (e) of 
the Act (relating to decisions to close all or a portion of a meeting, 
or to decisions on the timing or content of an announcement of a 
meeting), or
    (2) The conduct or disposition of official agency business by 
circulating written material to individual members.
    (d) The term number of individual agency members required to take 
action on behalf of the agency means three members.
    (e) The term member means a member of the Board appointed under 
section 101 of the Federal Employees' Retirement System Act of 1986, 5 
U.S.C. 8472.
    (f) The term public observation means that the public shall have the 
right to listen and observe but not the right to participate in the 
meeting or to record any of the meeting by means of cameras or 
electronic or other recording devices unless approval in advance is 
obtained from the Secretary of the Board.

[[Page 238]]



Sec. 1632.3  Conduct of agency business.

    Members shall not jointly conduct or dispose of official Board 
business other than in accordance with this part.



Sec. 1632.4  Meetings open to public observation.

    (a) Except as provided in Sec. 1632.5 of this part, every portion 
of every meeting of the agency shall be open to public observation.
    (b) The Freedom of Information Act, 5 U.S.C. 552, and the Board's 
implementing regulations, 5 CFR part 1611, shall govern the availability 
to the public of copies of documents considered in connection with the 
Board's discussion of agenda items for a meeting that is open to public 
observation.
    (c) The Board will maintain mailing lists of names and addresses of 
all persons who wish to receive copies of agency announcements of 
meetings open to public observation. Requests for announcements may be 
made by telephoning or by writing to the Office of External Affairs, 
Federal Retirement Thrift Investment Board, 1250 H Street NW., 
Washington, DC 20005.

[53 FR 36777, Sept. 22, 1988, as amended at 59 FR 55331, Nov. 7, 1994]



Sec. 1632.5  Exemptions.

    (a) Except in a case where the Board finds that the public interest 
requires otherwise, the Board may close a meeting or a portion or 
portions of a meeting under the procedures specified in Sec. 1632.7 or 
Sec. 1632.8 of this part, and withhold information under the provisions 
of Sec. Sec. 1632.6, 1632.7, 1632.8, or 1632.11 of this part, where the 
Board properly determines that such meeting or portion of its meeting or 
the disclosure of such information is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy, and
    (ii) In fact properly classified pursuant to such Executive Order;
    (2) Relate solely to internal personnel rules and practices;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than section 552 of title 5 of the United States Code), 
provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Established particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by a Federal agency conducting a 
lawful national security intelligence investigation, confidential 
information furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by or on behalf of, or for the 
use of the Board or other Federal agency responsible for the regulation 
or supervision of financial institutions;
    (9) Disclose information the premature disclosure of which would:
    (i) Be likely to (A) lead to significant speculation in currencies, 
securities, or commodities, or (B) significantly endanger the stability 
of any financial institution; or

[[Page 239]]

    (ii) Be likely to significantly frustrate implementation of a 
proposed action except that paragraph (a)(9)(ii) of this section shall 
not apply in any instance where the Board has already disclosed to the 
public the content or nature of its proposed action, or where the Board 
is required by law to make such disclosure on its own initiative prior 
to taking final action on such proposal; or
    (10) Specifically concern the issuance of a subpoena, participation 
in a civil action or proceeding, an action in a foreign court or 
international tribunal, or an arbitration, or the initiation, conduct, 
or disposition of a particular case of formal agency adjudication 
pursuant to the procedures in section 554 of title 5 of the United 
States Code or otherwise involving a determination on the record after 
opportunity for a hearing.
    (b) [Reserved]



Sec. 1632.6  Public announcement of meetings.

    (a) Except as otherwise provided by the Act, public announcement of 
meetings open to public observation and meetings to be partially or 
completely closed to public observation pursuant to Sec. 1632.7 of this 
part will be made at least one week in advance of the meeting. Except to 
the extent such information is determined to be exempt from disclosure 
under Sec. 1632.5 of this part, each such public announcement will 
state the time, place and subject matter of the meeting, whether it is 
to be open or closed to the public, and the name and phone number of the 
official designated to respond to requests for information about the 
meeting.
    (b) If a majority of the members of the Board determines by a 
recorded vote that Board business requires that a meeting covered by 
paragraph (a) of this section be called at a date earlier than that 
specified in paragraph (a) of this section, the Board shall make a 
public announcement of the information specified in paragraph (a) of 
this section at the earliest practicable time.
    (c) Changes in the subject matter of a publicly announced meeting, 
or in the determination to open or close a publicly announced meeting or 
any portion of a publicly announced meeting to public observation, or in 
the time or place of a publicly announced meeting made in accordance 
with the procedures specified in Sec. 1632.9 of this part, will be 
publicly announced at the earliest practicable time.
    (d) Public announcements required by this section will be posted at 
the Board's External Affairs Office and may be made available by other 
means or at other locations as may be desirable.
    (e) Immediately following each public announcement required by this 
section, notice of the time, place and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding announcements and the name and telephone number of the 
official designated by the Board to respond to requests about the 
meeting, shall also be submitted for publication in the Federal 
Register.



Sec. 1632.7  Meetings closed to public observation.

    (a) A meeting or a portion of a meeting will be closed to public 
observation, or information as to such meeting or portion of a meeting 
will be withheld, only by recorded vote of a majority of the Members of 
the Board when it is determined that the meeting or the portion of the 
meeting or the withholding of information qualifies for exemption under 
Sec. 1632.5. Votes by proxy are not allowed.
    (b) Except as provided in paragraph (c) of this section, a separate 
vote of the Members of the Board will be taken with respect to the 
closing or the withholding of information as to each meeting or portion 
thereof which is proposed to be closed to public observation or with 
respect to which information is proposed to be withheld pursuant to this 
section.
    (c) A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to public 
observation or with respect to any information concerning such series of 
meetings proposed to be withheld, so long as each meeting or portion 
thereof in such series involves the same particular matters and is 
scheduled to be held no

[[Page 240]]

more than thirty days after the initial meeting in such series.
    (d) Whenever any person's interests may be directly affected by a 
portion of the meeting for any of the reasons referred to in exemption 
(a)(5), (a)(6) or (a)(7) of Sec. 1632.5 of this part, such person may 
request in writing to the Secretary of the Board that such portion of 
the meeting be closed to public observation. The Secretary, or in his or 
her absence, the Acting Secretary of the Board, shall transmit the 
request to the members and upon the request of any one of them a 
recorded vote shall be taken whether to close such meeting to public 
observation.
    (e) Within one day of any vote taken pursuant to paragraphs (a) 
through (d) of this section, the agency will make publicly available at 
the Board's External Affairs Office a written copy of such vote 
reflecting the vote of each member on the question. If a meeting or a 
portion of a meeting is to be closed to public observation, the Board, 
within one day of the vote taken pursuant to paragraphs (a) through (d) 
of this section, will make publicly available at the Board's External 
Affairs Office a full written explanation of its action closing the 
meeting or portion of the meeting together with a list of all persons 
expected to attend the meeting and their affiliation, except to the 
extent such information is determined by the Board to be exempt from 
disclosure under subsection (c) of the Act and Sec. 1632.5 of this 
part.
    (f) Any person may request in writing to the Secretary of the Board 
that an announced closed meeting, or portion of the meeting, be held 
open to public observation. The Secretary, or in his or her absence, the 
Acting Secretary of the Board, will transmit the request to the members 
of the Board and upon the request of any member a recorded vote will be 
taken whether to open such meeting to public observation.



Sec. 1632.8  Changes with respect to publicly announced meetings.

    The subject matter of a meeting or the determination to open or 
close a meeting or a portion of a meeting to public observation may be 
changed following public announcement under Sec. 1632.6 only if a 
majority of the Members of the Board determines by a recorded vote that 
that agency business so requires and that no earlier announcement of the 
change was possible. Public announcement of such change and the vote of 
each member upon such change will be made pursuant to Sec. 1632.6(c). 
Changes in time, including postponements and cancellations of a publicly 
announced meeting or portion of a meeting or changes in the place of a 
publicly announced meeting will be publicly announced pursuant to Sec. 
1632.6(c) by the Secretary of the Board or, in the Secretary's absence, 
the Acting Secretary of the Board.



Sec. 1632.9  Certification of General Counsel.

    Before every meeting or portion of a meeting closed to public 
observation under Sec. 1632.7 of this part, the General Counsel, or in 
the General Counsel's absence, the Acting General Counsel, shall 
publicly certify whether or not in his or her opinion the meeting may be 
closed to public observation and shall state each relevant exemptive 
provision. A copy of such certification, together with a statement from 
the presiding officer of the meeting setting forth the time and place of 
the meeting and the persons present, will be retained for the time 
prescribed in Sec. 1632.10(d).



Sec. 1632.10  Transcripts, recordings, and minutes.

    (a) The Board will maintain a complete transcript or electronic 
recording or transcription thereof adequate to record fully the 
proceedings of each meeting or portion of a meeting closed to public 
observation pursuant to exemption (a)(1), (a)(2), (a)(3), (a)(5), 
(a)(6), (a)(7), or (a)(9)(ii) of Sec. 1632.5 of this part. 
Transcriptions of recordings will disclose the identity of each speaker.
    (b) The Board will maintain either such a transcript, recording or 
transcription thereof, or a set of minutes that will fully and clearly 
describe all matters discussed and provide a full and accurate summary 
of any actions taken and the reasons therefor, including a description 
of each of the views expressed on any item and the record

[[Page 241]]

of any roll call vote (reflecting the vote of each member on the 
question), for meetings or portions of meetings closed to public 
observation pursuant to exemptions (a)(8), (a)(9)(i)(A) or (a)(10) of 
Sec. 1632.5 of this part. The minutes will identify all documents 
considered in connection with any action taken.
    (c) Transcripts, recordings or transcriptions thereof, or minutes 
will promptly be made available to the public in the External Affairs 
Office except for such item or items of such discussion or testimony as 
may be determined to contain information that may be withheld under 
subsection (c) of the Act and Sec. 1632.5 of this part. These 
documents, disclosing the identity of each speaker, shall be furnished 
to any person at the actual cost of duplication or transcription.
    (d) A complete verbatim copy of the transcript, a complete copy of 
the minutes, or a complete electronic recording or verbatim copy of a 
transcription thereof of each meeting or portion of a meeting closed to 
public observation will be maintained for a period of at least two 
years, or one year after the conclusion of any Board proceeding with 
respect to which the meeting or portion thereof was held, whichever 
occurs later.



Sec. 1632.11  Procedures for inspection and obtaining copies of transcriptions and minutes.

    (a) Any person may inspect or copy a transcript, a recording or 
transcription, or minutes described in Sec. 1632.10(c) of this part.
    (b) Requests for copies of transcripts, recordings or transcriptions 
of recordings, or minutes described in Sec. 1632.10(c) of this part 
shall specify the meeting or the portion of meeting desired and shall be 
submitted in writing to the Secretary of the Board, Federal Retirement 
Thrift Investment Board, 1250 H Street NW., Washington, DC 20005. Copies 
of documents identified in minutes may be made available to the public 
upon request under the provisions of 5 CFR part 1630 (the Board's 
Freedom of Information Act regulations).

[53 FR 36777, Sept. 22, 1988, as amended at 59 FR 55331, Nov. 7, 1994]



PART 1633_STANDARDS OF CONDUCT--Table of Contents

    Authority: 5 U.S.C. 7301.



Sec. 1633.1  Cross-reference to employee ethical conduct standards and financial disclosure regulations.

    Employees of the Federal Retirement Thrift Investment Board (Board) 
are subject to the executive branch-wide Standards of Ethical conduct at 
5 CFR part 2635, the Board regulations at 5 CFR part 8601 which 
supplement the executive branch-wide standards, and the executive 
branch-wide financial disclosure regulations at 5 CFR part 2634.

[59 FR 50817, Oct. 6, 1994]



PART 1636_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL RETIREMENT THRIFT INVESTMENT BOARD--Table of Contents

Sec.
1636.101 Purpose.
1636.102 Application.
1636.103 Definitions.
1636.104-1636.109 [Reserved]
1636.110 Self-evaluation.
1636.111 Notice.
1636.112-1636.129 [Reserved]
1636.130 General prohibitions against discrimination.
1636.131-1636.139 [Reserved]
1636.140 Employment.
1636.141-1636.148 [Reserved]
1636.149 Program accessibility: Discrimination prohibited.
1636.150 Program accessibility: Existing facilities.
1636.151 Program accessibility: New construction and alterations.
1636.152-1636.159 [Reserved]
1636.160 Communications.
1636.161-1636.169 [Reserved]
1636.170 Compliance procedures.
1636.171-1636.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 58 FR 57696, 57699, Oct. 26, 1993, unless otherwise noted.



Sec. 1636.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation,

[[Page 242]]

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.



Sec. 1636.102  Application.

    This part (Sec. Sec. 1636.101-1636.170) 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.



Sec. 1636.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids 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 (TTD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint 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.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties 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.
    Individual with handicaps 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. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one 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
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
HIV disease (whether symptomatic or asymptomatic), and drug addiction 
and alcoholism.
    (2) Major life activities include functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by

[[Page 243]]

the agency as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (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;
    (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;
    (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
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1614.203(a)(6), which is made 
applicable to this part by Sec. 1636.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended. As used in 
this part, section 504 applies only to programs or activities conducted 
by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 1636.104-1636.109  [Reserved]



Sec. 1636.110  Self-evaluation.

    (a) The agency shall, by November 28, 1994, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (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).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 1636.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part 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 part.



Sec. Sec. 1636.112-1636.129  [Reserved]



Sec. 1636.130  General prohibitions against discrimination.

    (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.
    (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--

[[Page 244]]

    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (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;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in according equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate 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;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (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.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are no 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (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--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (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
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (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.
    (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 part.
    (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 part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 1636.131-1636.139  [Reserved]



Sec. 1636.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected 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 1614, shall apply to employment in federally conducted 
programs or activities.

[[Page 245]]



Sec. Sec. 1636.141-1636.148  [Reserved]



Sec. 1636.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1636.150, 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.



Sec. 1636.150  Program accessibility: Existing facilities.

    (a) General. 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--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (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
    (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 Sec. 1636.150(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 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.
    (b) Methods--(1) General. 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, 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.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1636.150(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 Sec. 1636.150(a)(2) or (a)(3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.

[[Page 246]]

    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by January 24, 1994, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by November 26, 1996, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by May 26, 1994, 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--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 1636.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the 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.



Sec. Sec. 1636.152-1636.159  [Reserved]



Sec. 1636.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (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.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (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.
    (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.
    (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.
    (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 Sec. 1636.160 would 
result in such alteration or burdens.

[[Page 247]]

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.



Sec. Sec. 1636.161-1636.169  [Reserved]



Sec. 1636.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (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 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Assistant General Counsel (Administration) shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to the Executive Director.
    (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.
    (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.
    (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.
    (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--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 1636.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (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.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (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.

[58 FR 57696, 57699, Oct. 26, 1993, as amended at 58 FR 57697, Oct. 26, 
1993]



Sec. Sec. 1636.171-1636.999  [Reserved]



PART 1639_CLAIMS COLLECTION--Table of Contents

   Subpart A_Administrative Collection, Compromise, Termination, and 
                           Referral of Claims

Sec.
1639.1 Authority.
1639.2 Application of other regulations; scope.
1639.3 Application to other statutes.
1639.4 Definitions.

[[Page 248]]

1639.5 Use of credit reporting agencies.
1639.6 Contracting for collection services.
1639.7 Initial notice to debtor.
1639.8 Interest, penalty, and administrative costs.
1639.9 Charges pending waiver or review.
1639.10 Referrals to the Department of Justice.
1639.11 Cross-servicing agreement with the Department of the Treasury.
1639.12 Deposit of funds collected.
1639.13 Antialienation of funds in Thrift Savings Plan participant 
          accounts.

                         Subpart B_Salary Offset

1639.20 Applicability and scope.
1639.21 Waiver requests.
1639.22 Notice requirements before offset.
1639.23 Hearing.
1639.24 Certification.
1639.25 Voluntary repayment agreements as alternative to salary offset.
1639.26 Special review.
1639.27 Procedures for salary offset.
1639.28 Coordinating salary offset with other agencies.
1639.29 Refunds.
1639.30 Non-waiver of rights by payments.

                       Subpart C_Tax Refund Offset

1639.40 Applicability and scope.
1639.41 Procedures for tax refund offset.
1639.42 Notice requirements before tax refund offset.

                     Subpart D_Administrative Offset

1639.50 Applicability and scope.
1639.51 Notice procedures.
1639.52 Board review.
1639.53 Written agreement for repayment.
1639.54 Requests for offset to Federal agencies.
1639.55 Requests for offset from Federal agencies.
1639.56 Expedited procedure.

    Authority: 5 U.S.C. 8474; 31 U.S.C. 3711, 3716, 3720A.

    Source: 62 FR 49417, Sept. 22, 1997, unless otherwise noted.



   Subpart A_Administrative Collection, Compromise, Termination, and 
                           Referral of Claims



Sec. 1639.1  Authority.

    The regulations of this part are issued under 5 U.S.C. 8474 and 31 
U.S.C. 3711, 3716, and 3720A, and in conformity with the Federal Claims 
Collection Standards, 4 CFR chapter II, prescribing standards for 
administrative collection, compromise, termination of agency collection 
action, and referral to the Department of Justice for litigation of 
civil claims by the Government for money or property, 4 CFR chapter II.



Sec. 1639.2  Application of other regulations; scope.

    All provisions of the Federal Claims Collection Standards, 4 CFR 
chapter II, apply to the regulations of this part. This part supplements 
4 CFR chapter II by the prescription of procedures and directives 
necessary and appropriate for operations of the Federal Retirement 
Thrift Investment Board. The Federal Claims Collection Standards and 
this part do not apply to any claim as to which there is an indication 
of fraud or misrepresentation, as described in 4 CFR 101.3, unless 
returned by the Department of Justice to the Board for handling.



Sec. 1639.3  Application to other statutes.

    (a) The Executive Director may exercise his or her compromise 
authority for those debts not exceeding $100,000, excluding interest, in 
conformity with the Federal Claims Collection Act of 1966, the Federal 
Claims Collection Standards issued thereunder, and this part, except 
where standards are established by other statutes or authorized 
regulations issued pursuant to them.
    (b) The authority of the Executive Director of the Board to remit or 
mitigate a fine, penalty, or forfeiture will be exercised in accordance 
with the standards for remission or mitigation established in the 
governing statute. In the absence of such standards, the Federal Claims 
Collection Standards will be followed to the extent applicable.



Sec. 1639.4  Definitions.

    As used in this part:
    Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding funds payable by the United States (including funds payable 
to the United States on behalf of a State government) to, or held by the 
United States for, a person to satisfy a debt owed to the United States.
    Agency means executive departments and agencies, the United States 
Postal

[[Page 249]]

Service, the Postal Rate Commission, the United States Senate, the 
United States House of Representatives, and any court, court 
administrative office, or instrumentality in the judicial or legislative 
branches of the Government, and Government corporations.
    Board means the Federal Retirement Thrift Investment Board, which 
administers the Thrift Savings Plan and the Thrift Savings Fund.
    Certification means a written debt claim form received from a 
creditor agency which requests the paying agency to offset the salary of 
an employee.
    Creditor agency means an agency of the Federal Government to which 
the debt is owed.
    Debt means money owed by an individual to the United States 
including a debt owed to the Thrift Savings Fund or to a Federal agency, 
but does not include a Thrift Savings Plan loan.
    Delinquent debt means a debt that has not been paid within the time 
limit prescribed by the Board.
    Disposable pay means that part of current basic pay, special pay, 
incentive pay, retirement pay, retainer pay, or, in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld, excluding 
any garnishment under 5 CFR parts 581, 582. The Board will include the 
following deductions in determining disposable pay subject to salary 
offset:
    (1) Federal Social Security and Medicare taxes;
    (2) Federal, state, or local income taxes, but no more than would be 
the case if the employee claimed all dependents to which he or she is 
entitled and any additional amounts for which the employee presents 
evidence of a tax obligation supporting the additional withholding;
    (3) Health insurance premiums;
    (4) Normal retirement contributions as explained in 5 CFR 
581.105(e);
    (5) Normal life insurance premiums, excluding optional life 
insurance premiums; and
    (6) Levies pursuant to the Internal Revenue Code, as defined in 5 
U.S.C. 5514(d).
    Employee means a current employee of an agency, including a current 
member of the Armed Forces or Reserve of the Armed Forces of the United 
States.
    Executive Director means the Executive Director of the Federal 
Retirement Thrift Investment Board, or his or her designee.
    Federal Claims Collection Standards means the standards published at 
4 CFR chapter II.
    Hearing official means an individual responsible for conducting any 
hearing with respect to the existence or amount of a debt claimed, and 
rendering a decision on the basis of the hearing.
    Net Assets Available for Thrift Savings Plan Benefits means all 
funds owed to Thrift Savings Plan participants and beneficiaries.
    Notice of intent to offset or notice of intent means a written 
notice from a creditor agency to an employee which alleges that the 
employee owes a debt to the creditor agency and which apprises the 
employee of certain administrative rights.
    Notice of salary offset means a written notice from the paying 
agency to an employee informing the employee that it has received a 
certification from a creditor agency and intends to begin salary offset.
    Participant means any person with an account in the Thrift Savings 
Plan, or who would have an account but for an employing agency error.
    Paying agency means the agency of the Federal Government which 
employs the individual who owes a debt to the United States. In some 
cases, the Federal Retirement Thrift Investment Board may be both the 
creditor agency and the paying agency.
    Payroll office means the payroll office in the paying agency which 
is primarily responsible for the payroll records and the coordination of 
pay matters with the appropriate personnel office with respect to an 
employee.
    Person includes a natural person or persons, profit or non-profit 
corporation, partnership, association, trust, estate, consortium, State 
and local governments, or other entity that is capable of owing a debt 
to the United States Government; however, agencies of the United States, 
are excluded.

[[Page 250]]

    Private collection contractor means a private debt collector under 
contract with an agency to collect a non-tax debt owed to the United 
States.
    Salary offset means an offset to collect a debt under 5 U.S.C. 5514 
by deduction(s) at one or more officially established pay intervals from 
the current pay account of an employee, without his or her consent.
    Tax refund offset means the reduction of a tax refund by the amount 
of a past-due legally enforceable debt owed to the Board or a Federal 
agency.
    Thrift Savings Fund means the Fund described in 5 U.S.C. 8437.
    Thrift Savings Plan means the Federal Retirement Thrift Savings Plan 
established by the Federal Employees' Retirement System Act of 1986, 
codified in pertinent part at 5 U.S.C. 8431 et seq..
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by a person to the Board or a Federal 
agency as permitted or required by 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 
2774, 32 U.S.C. 716, or any other law.



Sec. 1639.5  Use of credit reporting agencies.

    (a) The Board may report delinquent debts to appropriate credit 
reporting agencies by providing the following information:
    (1) A statement that the debt is valid and is overdue;
    (2) The name, address, taxpayer identification number, and any other 
information necessary to establish the identity of the debtor;
    (3) The amount, status, and history of the debt; and
    (4) The program or pertinent activity under which the debt arose.
    (b) Before disclosing debt information to a credit reporting agency, 
the Board will:
    (1) Take reasonable action to locate the debtor if a current address 
is not available; and
    (2) If a current address is available, notify the debtor by 
certified mail, return receipt requested:
    (i) That a designated Board official has reviewed the claim and has 
determined that the claim is valid and over-due;
    (ii) That within 60 days the Board intends to disclose to a credit 
reporting agency the information authorized for disclosure by this 
section; and
    (iii) That the debtor can request an explanation of the claim, can 
dispute the information in the Board's records concerning the claim, and 
can file for an administrative review, waiver, or reconsideration of the 
claim, where applicable.
    (c) At the time debt information is submitted to a credit reporting 
agency, the Board will provide a written statement to the reporting 
agency that all required actions have been taken. In addition, the Board 
will, thereafter, ensure that the credit reporting agency is promptly 
informed of any substantive change in the conditions or amount of the 
debt, and promptly verify or correct information relevant to the claim.
    (d) If a debtor disputes the validity of the debt, the credit 
reporting agency will refer the matter to the appropriate Board 
official. The credit reporting agency will exclude the debt from its 
reports until the Board certifies in writing that the debt is valid.



Sec. 1639.6  Contracting for collection services.

    The Board will use the services of a private collection contractor 
where it determines that such use is in the best interest of the Board. 
When the Board determines that there is a need to contract for 
collection services, it will--
    (a) Retain sole authority to:
    (1) Resolve any dispute by the debtor regarding the validity of the 
debt;
    (2) Compromise the debt;
    (3) Suspend or terminate collection action;
    (4) Refer the debt to the Department of Justice for litigation; and
    (5) Take any other action under this part which does not result in 
full collection of the debt;
    (b) Require the contractor to comply with the Privacy Act of 1974, 
as amended, to the extent specified in 5 U.S.C. 552a(m), with applicable 
Federal and State laws pertaining to debt collection practices (e.g., 
the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.)), and 
with applicable regulations of the Board;

[[Page 251]]

    (c) Require the contractor to account accurately and fully for all 
amounts collected; and
    (d) Require the contractor to provide to the Board, upon request, 
all data and reports contained in its files relating to its collection 
actions on a debt.



Sec. 1639.7  Initial notice to debtor.

    (a) When the Executive Director determines that a debt is owed the 
Board, he will send a written notice to the debtor. The notice will 
inform the debtor of the following:
    (1) The amount, nature, and basis of the debt;
    (2) That payment is due immediately after receipt of the notice;
    (3) That the debt is considered delinquent if it is not paid within 
30 days of the date the notice is mailed or hand-delivered;
    (4) That interest charges (except for State and local governments 
and Indian tribes), penalty charges, and admini strative costs may be 
assessed against a delinquent debt;
    (5) Any rights available to the debtor to dispute the validity of 
the debt or to have recovery of the debt waived (citing the available 
review or waiver authority, the conditions for review or waiver, and the 
effects of the review or waiver request on the collection of the debt); 
and
    (6) The address, telephone number, and name of the Board official 
available to discuss the debt.
    (b) The Board will respond promptly to communications from the 
debtor.
    (c) Subsequent demand letters also will notify the debtor of any 
interest, penalty, or administrative costs which have been assessed and 
will advise the debtor that the debt may be referred to a credit 
reporting agency (see Sec. 1639.5), a collection agency (see Sec. 
1639.6), the Department of Justice (see Sec. 1639.10), or the 
Department of the Treasury (see Sec. 1639.11), if it is not paid.



Sec. 1639.8  Interest, penalty, and administrative costs.

    (a) Interest. The Board will assess interest on all delinquent debts 
unless prohibited by statute, regulation, or contract.
    (1) Interest begins to accrue on all debts from the date the initial 
notice is mailed or hand-delivered to the debtor. The Board will not 
recover interest if the debt is paid within 30 days of the date of the 
initial notice. The Board will assess an annual rate of interest that is 
equal to the rate of the current value of funds to the United States 
Treasury (i.e., the Treasury tax and loan account rate) as prescribed 
and published by the Secretary of the Treasury in the Federal Register 
and the Treasury Fiscal Requirements Manual Bulletins, unless a 
different rate is necessary to protect the interests of the Board. The 
Board will notify the debtor of the basis for its finding when a 
different rate is necessary to protect the Board's interests.
    (2) The Executive Director may extend the 30-day period for payment 
where he determines that such action is in the best interest of the 
Board. A decision to extend or not to extend the payment period is final 
and is not subject to further review.
    (b) Penalty. The Board will assess a penalty charge, not to exceed 
six percent a year, on any portion of a debt that is not paid within 90 
days of the initial notice.
    (c) Administrative costs. The Board will assess charges to cover 
administrative costs incurred as the result of the debtor's failure to 
pay a debt within 30 days of the date of the initial notice. 
Administrative costs include the additional costs incurred in processing 
and handling the debt because it became delinquent, such as costs 
incurred in obtaining a credit report, or in using a private collection 
contractor, or service fees charged by a Federal agency for collection 
activities undertaken on behalf of the Board.
    (d) Allocation of payments. A partial payment by a debtor will be 
applied first to outstanding administrative costs, second to penalty 
assessments, third to accrued interest, and then to the outstanding debt 
principal.
    (e) Waiver. (1) The Executive Director may (without regard to the 
amount of the debt) waive collection of all or part of accrued interest, 
penalty, or administrative costs, if he determines that collection of 
these charges would be against equity and good conscience or not in the 
best interest of the Board.

[[Page 252]]

    (2) A decision to waive interest, penalty charges, or administrative 
costs may be made at any time before a debt is paid. However, where 
these charges have been collected before the waiver decision, they will 
not be refunded. The Executive Director's decision to waive or not waive 
collection of these charges is final and is not subject to further 
review.



Sec. 1639.9  Charges pending waiver or review.

    Interest, penalty charges, and administrative costs will continue to 
accrue on a debt during administrative appeal, either formal or 
informal, and during waiver consideration by the Board, unless 
specifically prohibited by a statute or a regulation.



Sec. 1639.10  Referrals to the Department of Justice.

    The Executive Director will refer to the Department of Justice for 
litigation all claims on which aggressive collection actions have been 
taken but which could not be collected, compromised, suspended, or 
terminated. Referrals will be made as early as possible, consistent with 
aggressive Board collection action, and within the period for bringing a 
timely suit against the debtor.



Sec. 1639.11  Cross-servicing agreement with the Department of the Treasury.

    The Board will enter into a cross-servicing agreement with the 
Department of the Treasury which will authorize Treasury to take all of 
the debt collection actions described in this part. These debt 
collection services will be provided to the Board in accordance with 31 
U.S.C. 3701 et seq.



Sec. 1639.12  Deposit of funds collected.

    All funds owed to the Board and collected under this part will be 
deposited in the Thrift Savings Fund. Funds owed to other agencies and 
collected under this part will be credited to the account designated by 
the creditor agency for the receipt of the funds.



Sec. 1639.13  Antialienation of funds in Thrift Savings Plan participant accounts.

    In accordance with 5 U.S.C. 8437, net assets available for Thrift 
Savings Plan benefits will not be used to satisfy a debt owed by a 
participant to an agency under the regulations of this part or under the 
debt collection regulations of any agency.



                         Subpart B_Salary Offset



Sec. 1639.20  Applicability and scope.

    (a) The regulations in this subpart provide Board procedures for the 
collection by salary offset of a Federal employee's pay to satisfy 
certain debts owed to the Board or to Federal agencies.
    (b) The regulations in this subpart apply to collections by the 
Executive Director, from:
    (1) Federal employees who owe debts to the Board; and
    (2) Employees of the Board who owe debts to Federal agencies.
    (c) The regulations in this subpart do not apply to debts arising 
under the Internal Revenue Code of 1986, as amended (title 26, United 
States Code); the Social Security Act (42 U.S.C. 301 et seq.); the 
tariff laws of the United States; or to any case where collection of a 
debt by salary offset is explicitly provided for or prohibited by 
another statute (e.g., travel advances in 5 U.S.C. 5705 and employee 
training expenses in 5 U.S.C. 4108).
    (d) Nothing in the regulations in this subpart precludes the 
compromise, suspension, or termination of collection actions under the 
standards implementing the Federal Claims Collection Act (31 U.S.C. 3711 
et seq., 4 CFR Parts 101-105, 38 CFR 1.900-1.994).
    (e) A levy pursuant to the Internal Revenue Code takes precedence 
over a salary offset under this subpart, as provided in 5 U.S.C. 
5514(d).
    (f) This subpart does not apply to any adjustment to pay arising out 
of an employee's election of coverage or a change in coverage under a 
Federal benefits program requiring periodic deductions from pay, if the 
amount to be recovered was accumulated over four pay periods or less.

[[Page 253]]



Sec. 1639.21  Waiver requests.

    The regulations in this subpart do not preclude an employee from 
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 
U.S.C. 2774, 32 U.S.C. 716, or under other statutory provisions 
pertaining to the particular debts being collected.



Sec. 1639.22  Notice requirements before offset.

    Deductions under the authority of 5 U.S.C. 5514 may be made if, a 
minimum of 30 calendar days before salary offset is initiated, the Board 
provides the employee with written notice that he or she owes a debt to 
the Board. This notice of intent to offset an employee's salary will be 
hand-delivered or sent by certified mail to the most current address 
that is available to the Board. The notice provided under this section 
will state:
    (a) That the Board has reviewed the records relating to the claim 
and has determined that a debt is owed, the amount of the debt, and the 
facts giving rise to the debt;
    (b) The Board's intention to collect the debt by deducting money 
from the employee's current disposable pay account until the debt, and 
all accumulated interest, penalties, and administrative costs, is paid 
in full;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) An explanation of the Board's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards, 4 CFR chapter II;
    (e) The employee's right to inspect and copy all records pertaining 
to the debt claimed or to receive copies of those records if personal 
inspection is impractical;
    (f) The right to a hearing conducted by an administrative law judge 
or other impartial hearing official (i.e., a hearing official not under 
the supervision or control of the Executive Director), with respect to 
the existence and amount of the debt claimed or the repayment schedule 
(i.e., the percentage of disposable pay to be deducted each pay period), 
so long as a request is filed by the employee as prescribed in Sec. 
1639.23;
    (g) If not previously provided, the opportunity (under terms 
agreeable to the Board) to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment of the debt in lieu of offset. The agreement 
must be in writing and signed by both the employee and the Executive 
Director;
    (h) The name, address, and telephone number of an officer or 
employee of the Board who may be contacted concerning procedures for 
requesting a hearing;
    (i) The method and time period for requesting a hearing;
    (j) That the timely filing of a request for a hearing on or before 
the 15th calendar day following receipt of the notice of intent will 
stay the commencement of collection proceedings;
    (k) The name and address of the officer or employee of the Board to 
whom the request for a hearing should be sent;
    (l) That the Board will initiate certification procedures to 
implement a salary offset, as appropriate, (which may not exceed 15 
percent of the employee's disposable pay) not less than 30 days from the 
date the employee receives the notice of debt, unless the employee files 
a timely request for a hearing;
    (m) That a final decision on the hearing (if one is requested) will 
be issued at the earliest practical date, but not later than 60 days 
after the filing of the petition requesting the hearing, unless the 
employee requests and the hearing official grants a delay in the 
proceedings;
    (n) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (1) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 
CFR part 752, or any other applicable statute or regulations;
    (2) Penalties under the False Claims Act, 31 U.S.C. 3729-3733, or 
any other applicable statutory authority; and
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 102, or 
any other applicable statutory authority;

[[Page 254]]

    (o) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (p) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt 
which are later waived or found not owed will be promptly refunded to 
the employee; and
    (q) That proceedings with respect to the debt are governed by 5 
U.S.C. 5514.



Sec. 1639.23  Hearing.

    (a) Request for hearing. Except as provided in paragraph (b) of this 
section, an employee who desires a hearing concerning the existence or 
amount of the debt or the proposed offset schedule must send such a 
request to the Board office designated in the notice of intent. See 
Sec. 1639.22(k).
    (1) The request for hearing must be signed by the employee and fully 
identify and explain with reasonable specificity all the facts, 
evidence, and witnesses, if any, that support his or her position.
    (2) The request for hearing must be received by the designated 
office on or before the 15th calendar day following the employee's 
receipt of the notice. Timely filing will stay the commencement of 
collection procedures.
    (3) The employee must also specify whether an oral or written 
hearing is requested. If an oral hearing is desired, the request should 
explain why the matter cannot be resolved by review of the documentary 
evidence alone.
    (b) Failure to timely submit. (1) If the employee files a request 
for a hearing after the expiration of the 15th calendar day period 
provided for in paragraph (a) of this section, the Board will accept the 
request if the employee can show that the delay was the result of 
circumstances beyond his or her control or because of a failure to 
receive notice of the filing deadline (unless the employee had actual 
notice of the filing deadline).
    (2) An employee waives the right to a hearing, and will have his or 
her disposable pay offset in accordance with the Board's offset 
schedule, if the employee:
    (i) Fails to file a request for a hearing and the failure is not 
excused; or
    (ii) Fails to appear at an oral hearing of which he or she was 
notified and the hearing official does not determine that failure to 
appear was due to circumstances beyond the employee's control.
    (c) Representation at the hearing. The creditor agency may be 
represented by legal counsel. The employee may represent himself or 
herself or may be represented by an individual of his or her choice and 
at his or her own expense.
    (d) Review of Board records related to the debt. (1) In accordance 
with Sec. 1639.22(e), an employee who intends to inspect or copy Board 
records related to the debt must send a letter to the official 
designated in the notice of intent to offset stating his or her 
intention. The letter must be received within 15 calendar days after the 
employee's receipt of the notice.
    (2) In response to a timely request submitted by the debtor, the 
designated official will notify the employee of the location and time 
when the employee may inspect and copy records related to the debt.
    (3) If personal inspection is impractical, arrangements will be made 
to send copies of those records to the employee.
    (e) Hearing official. The Board may request an administrative law 
judge to conduct the hearing or the Board may obtain a hearing official 
who is not under the supervision or control of the Executive Director.
    (f) Procedure--(1) General. After the employee requests a hearing, 
the hearing official will notify the employee of the form of the hearing 
to be provided. If the hearing will be oral, the notice will set forth 
the date, time, and location of the hearing. If the hearing will be 
written, the employee will be notified that he or she should submit 
arguments in writing to the hearing official by a specified date after 
which the record will be closed. This date will give the employee 
reasonable time to submit documentation.
    (2) Oral hearing. An employee who requests an oral hearing will be 
provided an oral hearing, if the hearing official determines that the 
matter cannot be

[[Page 255]]

resolved by review of documentary evidence alone (e.g., when an issue of 
credibility is involved). The hearing is not an adversarial adjudication 
and need not take the form of an evidentiary hearing. Witnesses who 
testify in oral hearings will do so under oath or affirmation. Oral 
hearings may take the form of, but are not limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses, and argument;
    (ii) Informal meetings with an interview of the employee; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (3) Record determination. If the hearing official determines that an 
oral hearing is not necessary, he or she will make the determination 
based upon a review of the available written record.
    (4) Record. The hearing official must maintain a summary record of 
any hearing provided by this subpart.
    (g) Date of decision. The hearing official will issue a written 
decision, based upon documentary evidence and information developed at 
the hearing, as soon as practical after the hearing, but not later than 
60 days after the date on which the petition was received by the 
creditor agency, unless the employee requests a delay in the 
proceedings. In that case, the 60 day decision period will be extended 
by the number of days by which the hearing was postponed.
    (h) Content of decision. The written decision will include:
    (1) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (2) The hearing official's findings, analysis, and conclusions; and
    (3) The terms of any repayment schedules, if applicable.
    (i) Failure to appear. (1) In the absence of good cause shown (e.g., 
excused illness), an employee who fails to appear at a hearing will be 
deemed, for the purpose of this subpart, to admit the existence and 
amount of the debt as described in the notice of intent.
    (2) If the representative of the creditor agency fails to appear, 
the hearing official will proceed with the hearing as scheduled, and 
make his or her determination based upon the oral testimony presented by 
the representative(s) of the employee and the documentary documentation 
submitted by both parties.
    (3) At the request of both parties, the hearing official will 
schedule a new hearing date. Both parties will be given reasonable 
notice of the time and place of this new hearing.



Sec. 1639.24  Certification.

    (a) The Board will provide a certification to the paying agency in 
all cases in which:
    (1) The hearing official determines that a debt exists;
    (2) The employee admits the existence and amount of the debt by 
failing to request a hearing; or
    (3) The employee admits the existence of the debt by failing to 
appear at a hearing.
    (b) The certification must be in writing and must include:
    (1) A statement that the employee owes the debt;
    (2) The amount and basis of the debt;
    (3) The date the Board's right to collect the debt first accrued;
    (4) A statement that the Board's regulations have been approved by 
the Office of Personnel Management under 5 CFR part 550, subpart K;
    (5) The amount and date of the collection, if only a one-time offset 
is required;
    (6) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
date of the first installment, if a date other than the next officially 
established pay period is required; and
    (7) Information regarding the completion of procedures required by 5 
U.S.C. 5514, including the dates of notices and hearings provided to the 
employee, or, if applicable, the employee's signed consent to salary 
offset or a signed statement acknowledging receipt of required 
procedures.



Sec. 1639.25  Voluntary repayment agreements as alternative to salary offset.

    (a) In response to a notice of intent to offset against an 
employee's salary

[[Page 256]]

to recover a debt owed to the Board, an employee may propose to the 
Board that he or she be allowed to repay the debt through direct 
payments as an alternative to salary offset. Any employee who wishes to 
repay a debt without salary offset must submit in writing a proposed 
agreement to repay the debt. The proposal must admit the existence of 
the debt and set forth a proposed repayment schedule. The employee's 
proposal must be received by the official designated in the notice of 
intent within 15 calendar days after the employee received the notice.
    (b) In response to a timely proposal by the debtor, the Executive 
Director will notify the employee whether the employee's proposed 
written agreement for repayment is acceptable. It is within the 
Executive Director's discretion to accept a repayment agreement instead 
of proceeding by salary offset.
    (c) If the Executive Director decides that the proposed repayment 
agreement is unacceptable, the employee will have 15 days from the date 
he or she received notice of the decision to file a petition for a 
hearing.
    (d) If the Executive Director decides that the proposed repayment 
agreement is acceptable, the alternative arrange ment must be in writing 
and signed by both the employee and the Executive Director.



Sec. 1639.26  Special review.

    (a) An employee subject to salary offset or a voluntary repayment 
agreement in connection with a debt owed to the Board may, at any time, 
request that the Board conduct a special review of the amount of the 
salary offset or voluntary payment, based on materially changed 
circumstances, such as catastrophic illness, divorce, death, or 
disability.
    (b) To assist the Board in determining whether an offset would 
prevent the employee from meeting essential subsistence expenses (costs 
incurred for food, housing, clothing, transportation, and medical care), 
the employee will submit a detailed statement and supporting documents 
for the employee, his or her spouse, and dependents, indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing, and transportation;
    (6) Medical expenses; and
    (7) Exceptional expenses, if any.
    (c) If the employee requests a special review under this section, 
the employee must file an alternative proposed salary offset or payment 
schedule and a statement, with supporting documents, showing why the 
current salary offset or payments result in an extreme financial 
hardship to the employee.
    (d) The Executive Director will evaluate the statement and 
supporting documents, and determine whether the original offset or 
repayment schedule imposes an extreme financial hardship on the 
employee. The Executive Director will notify the employee in writing of 
his determination, including, if appropriate, a revised offset or 
payment schedule.
    (e) If the special review results in a revised offset or repayment 
schedule, the Board will provide a new certification to the paying 
agency.



Sec. 1639.27  Procedures for salary offset.

    (a) The Board will coordinate salary deductions under this subpart.
    (b) The Board's payroll office will determine the amount of an 
employee's disposable pay and will implement the salary offset.
    (c) Deductions will begin within three official pay periods 
following receipt by the Board's payroll office of certification for the 
creditor agency.
    (d) Types of collection--
    (1) Lump-sum offset. If the amount of the debt is equal to or less 
than 15 percent of disposable pay, the debt generally will be collected 
through one lump-sum offset.
    (2) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and the employee's ability to pay. However, the 
amount deducted from any period will not exceed 15 percent of the 
disposable pay from which the deduction is made unless the employee

[[Page 257]]

has agreed in writing to the deduction of a greater amount.
    (3) Deductions from final check. A deduction exceeding the 15 
percent disposable pay limitation may be made from any final salary 
payment under 31 U.S.C. 3716 and the Federal Claims Collection 
Standards, 4 CFR chapter II, in order to liquidate the debt, whether the 
employee is being separated voluntarily or involuntarily.
    (4) Deductions from other sources. If an employee subject to salary 
offset is separated from the Board, and the balance of the debt cannot 
be liquidated by offset of the final salary check, the Board may offset 
any later payments of any kind against the balance of the debt, as 
allowed by 31 U.S.C. 3716 and the Federal Claims Collection Standards, 4 
CFR chapter II.
    (e) Multiple debts. In instances where two or more creditor agencies 
are seeking salary offsets, or where two or more debts are owed to a 
single creditor agency, the Board's payroll office may, at its 
discretion, determine whether one or more debts should be offset 
simultaneously within the 15 percent limitation.
    (f) Precedence of debts owed to the Board. For Board employees, 
debts owed to the Board generally take precedence over debts owed to 
other agencies. In the event that a debt to the Board is certified while 
an employee is subject to a salary offset to repay another agency, the 
Board may decide whether to have the first debt repaid in full before 
collecting the claim or whether changes should be made in the salary 
deduction being sent to the other agency. If debts owed the Board can be 
collected in one pay period, the Board payroll office may suspend the 
salary offset to the other agency for that pay period in order to 
liquidate the debt to the Board. When an employee owes two or more 
debts, the best interests of the Board will be the primary con 
sideration in the payroll office's determination of the order in which 
the debts should be collected.



Sec. 1639.28  Coordinating salary offset with other agencies.

    (a) Responsibility of the Board as the creditor agency. (1) The 
Board will coordinate debt collections with other agencies and will, as 
appropriate:
    (i) Arrange for a hearing or special review upon proper petitioning 
by the debtor; and
    (ii) Prescribe, upon consultation with the General Counsel, the 
additional practices and procedures that may be necessary to carry out 
the intent of this subpart.
    (2) The Board will ensure:
    (i) That each notice of intent to offset is consistent with the 
requirements of Sec. 1639.22;
    (ii) That each certification of debt that is sent to a paying agency 
is consistent with the requirements of Sec. 1639.24; and
    (iii) That hearings are properly scheduled.
    (3) Requesting recovery from current paying agency. Upon completion 
of the procedures established in these regulations and pursuant to 5 
U.S.C. 5514, the Board will provide the paying agency with a 
certification as provided in Sec. 1639.24.
    (4) If the employee is in the process of separating and has not 
received a final salary check or other final payment(s) from the paying 
agency, the Board must submit a debt claim to the paying agency for 
collection under 31 U.S.C. 3716. The paying agency must certify the 
total amount of its collection on the debt and notify the employee and 
the Board. If the paying agency's collection does not fully satisfy the 
debt, and the paying agency is aware that the debtor is entitled to 
payments from the Civil Service Retirement and Disability Fund or other 
similar payments that may be due the debtor employee from other Federal 
Government sources, the paying agency will provide written notice of the 
outstanding debt to the agency responsible for making the other payments 
to the debtor employee. The written notice will state that the employee 
owes a debt, the amount of the debt, and that the provisions of this 
section have been fully complied with. The Board must submit a properly 
certified claim to the agency responsible for making the payments before 
the collection can be made.

[[Page 258]]

    (5) Separated employee. If the employee is already separated and all 
payments due from his or her former paying agency have been paid, the 
Board may request, unless otherwise prohibited, that money due and 
payable to the employee from the Civil Service Retirement and Disability 
Fund (5 CFR part 831, subpart R, or 5 CFR part 845, subpart D) or other 
similar funds, be administratively offset to collect the debt.
    (6) Employee transfer. When an employee transfers from one paying 
agency to another paying agency, the Board will not repeat the due 
process procedures described in 5 U.S.C. 5514 and this subpart to resume 
the collection. The Board will submit a properly certified claim to the 
new paying agency and will subsequently review the debt to make sure the 
collection is resumed by the new paying agency.
    (b) Responsibility of the Board as the paying agency--(1) Complete 
claim. When the Board receives a certified claim from a creditor agency, 
deductions should be scheduled to begin within three officially 
established pay intervals. Before deductions can begin, the employee 
will receive a written notice from the Board including:
    (i) A statement that the Board has received a certified debt claim 
from the creditor agency;
    (ii) The amount of the debt claim;
    (iii) The date salary offset deductions will begin, and
    (iv) The amount of such deductions.
    (2) Incomplete claim. When the Board receives an incomplete 
certification of debt from a creditor agency, the Board will return the 
debt claim with a notice that procedures under 5 U.S.C. 5514 and 5 CFR 
part 550, subpart K, must be followed and a properly certified debt 
claim received before action will be taken to collect from the 
employee's current pay account.
    (3) Review. The Board is not authorized to review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt certified by the creditor agency.
    (4) Employees who transfer from one paying agency to another. If, 
after the creditor agency has submitted the debt claim to the Board, the 
employee transfers from the Board to a different paying agency before 
the debt is collected in full, the Board will certify the total amount 
collected on the debt and notify the employee and the creditor agency in 
writing. The notification to the creditor agency will include 
information on the employee's transfer.



Sec. 1639.29  Refunds.

    (a) If the Board is the creditor agency, it will promptly refund any 
amount deducted under the authority of 5 U.S.C. 5514, when:
    (1) The debt is waived or all or part of the funds deducted are 
otherwise found not to be owed; or
    (2) An administrative or judicial order directs the Board to make a 
refund.
    (b) Unless required or permitted by law or contract, refunds under 
this section will not bear interest.



Sec. 1639.30  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any portion of a debt 
being collected under this subpart must not be construed as a waiver of 
any rights which the employee may have under 5 U.S.C. 5514 or any other 
provisions of a written contract or law, unless there are statutory or 
con tractual provisions to the contrary.



                       Subpart C_Tax Refund Offset



Sec. 1639.40  Applicability and scope.

    (a) The regulations in this subpart implement 31 U.S.C. 3720A which 
authorizes the Department of the Treasury to reduce a tax refund by the 
amount of a past-due legally enforceable debt owed to a Federal agency.
    (b) For purposes of this section, a past-due legally enforceable 
debt referable to the Department of the Treasury is a debt that is owed 
to the Board; and:
    (1) Is at least $25.00 dollars;
    (2) Except in the case of a judgment debt, has been delinquent for 
at least three months and will not have been delinquent more than 10 
years at the time the offset is made;
    (3) Cannot be currently collected under the salary offset provisions 
of 5 U.S.C. 5514;

[[Page 259]]

    (4) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Board against 
amounts payable to the debtor by the Board;
    (5) With respect to which the Board has given the debtor at least 60 
days to present evidence that all or part of the debt is not past due or 
legally enforceable, has considered evidence presented by the debtor, 
and has determined that an amount of the debt is past due and legally 
enforceable;
    (6) Which has been disclosed by the Board to a credit reporting 
agency as authorized by 31 U.S.C. 3711(e), unless the credit reporting 
agency would be prohibited from reporting information concerning the 
debt by reason of 15 U.S.C. 1681c;
    (7) With respect to which the Board has notified or has made a 
reasonable attempt to notify the debtor that:
    (i) The debt is past due, and
    (ii) Unless repaid within 60 days thereafter, the debt will be 
referred to the Department of the Treasury for offset against any 
overpayment of tax; and
    (8) All other requirements of 31 U.S.C. 3720A and the Department of 
Treasury regulations relating to the eligibility of a debt for tax 
return offset have been satisfied.



Sec. 1639.41  Procedures for tax refund offset.

    (a) The Board will be the point of contact with the Department of 
the Treasury for administrative matters regarding the offset program.
    (b) The Board will ensure that the procedures prescribed by the 
Department of the Treasury are followed in developing information about 
past-due debts and submitting the debts to the IRS.
    (c) The Board will submit a notification of a taxpayer's liability 
for past-due legally enforceable debt to the Department of the Treasury 
which will contain:
    (1) The name and taxpayer identifying number (as defined in section 
6109 of the Internal Revenue Code, 26 U.S.C. 6109) of the person who is 
responsible for the debt;
    (2) The dollar amount of the past-due and legally enforceable debt;
    (3) The date on which the original debt became past due;
    (4) A statement certifying that, with respect to each debt reported, 
all of the requirements of eligibility of the debt for referral for the 
refund offset have been satisfied. See Sec. 1639.40(b).
    (d) The Board shall promptly notify the Department of the Treasury 
to correct Board data submitted when it:
    (1) Determines that an error has been made with respect to a debt 
that has been referred;
    (2) Receives or credits a payment on the debt; or
    (3) Receives notice that the person owing the debt has filed for 
bankruptcy under Title 11 of the United States Code or has been 
adjudicated bankrupt and the debt has been discharged.
    (e) When advising debtors of an intent to refer a debt to the 
Department of the Treasury for offset, the Board will also advise the 
debtors of all remedial actions available to defer or prevent the offset 
from taking place.



Sec. 1639.42  Notice requirements before tax refund offset.

    (a) The Board must notify, or make a reasonable attempt to notify, 
the person:
    (1) The amount of the debt and that the debt is past due; and
    (2) Unless repaid within 60 days, the debt will be referred to the 
Department of the Treasury for offset against any refund of overpayment 
of tax.
    (b) The Board will provide a mailing address for forwarding any 
written correspondence and a contact name and telephone number for any 
questions concerning the offset.
    (c) The Board will give the individual debtor at least 60 days from 
the date of the notice to present evidence that all or part of the debt 
is not past due or legally enforceable. The Board will consider the 
evidence presented by the individual and will make a determination 
whether any amount of the debt is past due and legally enforceable. For 
purposes of this section, evidence that collection of the debt is 
affected by a bankruptcy proceeding involving the individual will bar 
referral of the debt to the Department of the Treasury.

[[Page 260]]

    (d) Notice given to a debtor under paragraphs (a), (b), and (c) of 
this section shall advise the debtor of how he or she may present 
evidence to the Board that all or part of the debt is not past due or 
legally enforceable. Such evidence may not be referred to, or considered 
by, individuals who are not officials, employees, or agents of the 
United States in making the determination required under paragraph (c) 
of this section. Unless such evidence is directly considered by an 
official or employee of the Board, and the determination required under 
paragraph (c) of this section has been made by an official or employee 
of the Board, any unresolved dispute with the debtor regarding whether 
all or part of the debt is past due or legally enforceable must be 
referred to the Board for ultimate administrative disposition, and the 
Board must directly notify the debtor of its determination.



                     Subpart D_Administrative Offset



Sec. 1639.50  Applicability and scope.

    (a) The regulations in this subpart apply to the collection of debts 
owed to the Board, or from a request for an offset received by the Board 
from a Federal agency. Administrative offset is authorized under section 
5 of the Federal Claims Collection Act of 1966, as amended by the Debt 
Collection Act of 1982 (31 U.S.C. 3716). The regulations in this subpart 
are consistent with the Federal Claims Collection Standards on 
administrative offset issued jointly by the Department of Justice and 
the General Accounting Office as set forth in 4 CFR 102.3.
    (b) The Executive Director, after attempting to collect a debt owed 
to the Board under section 3(a) of the Federal Claims Collection Act of 
1966, as amended (31 U.S.C. 3711(a)), may collect the debt by 
administrative offset, subject to the following:
    (1) The debt is certain in amount; and
    (2) It is in the best interest of the Board to collect the debt by 
administrative offset because of the decreased costs of collection and 
acceleration in the payment of the debt.
    (c) The Executive Director may initiate administrative offset with 
regard to debts owed by a person to a Federal agency, so long as the 
funds to be offset are not payable from net assets available for Thrift 
Savings Plan benefits. The head of the creditor agency, or his or her 
designee, must submit a written request for the offset with a 
certification that the debt exists and that the person has been afforded 
the necessary due process rights.
    (d) The Executive Director may request another agency that holds 
funds payable to a Fund debtor to pay the funds to the Board in 
settlement of the debt. The Board will provide certification that:
    (1) The debt exists; and
    (2) The person has been afforded the necessary due process rights.
    (e) If the six-year period for bringing action on a debt provided in 
28 U.S.C. 2415 has expired, then administrative offset may be used to 
collect the debt only if the costs of bringing such an action are likely 
to be less than the amount of the debt.
    (f) No collection by administrative offset will be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Board or a Federal agency's right to collect the debt were not 
known, and reasonably could not have been known, by the official or 
officials responsible for discovering and collecting the debt.
    (g) The regulations in this subpart do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by another statute; or
    (2) Debts owed to the Board by Federal agencies or by any State or 
local government.



Sec. 1639.51  Notice procedures.

    Before collecting any debt through administrative offset, the Board 
will send a notice of intent to offset to the debtor by certified mail, 
return receipt requested, at the most current address that is available 
to the Board. The notice will provide:
    (a) A description of the nature and amount of the debt and the 
intention of the Board to collect the debt through administrative 
offset;
    (b) An opportunity to inspect and copy the records of the Board with 
respect to the debt;

[[Page 261]]

    (c) An opportunity for review within the Board of the determination 
of the Board with respect to the debt; and
    (d) An opportunity to enter into a written agreement for repaying 
the amount of the debt.



Sec. 1639.52  Board review.

    (a) A debtor may dispute the existence of the debt, the amount of 
debt, or the terms of repayment. A request to review a disputed debt 
must be submitted to the Board official who provided the notice of 
intent to offset within 30 calendar days of the debtor's receipt of the 
written notice described in Sec. 1639.51.
    (b) If the debtor requests an opportunity to inspect or copy the 
Board's records concerning the disputed claim, the Board will grant 10 
business days for the review. The time period will be measured from the 
time the request for inspection is granted or from the time the debtor 
receives a copy of the records.
    (c) Pending the resolution of a dispute by the debtor, transactions 
in any of the debtor's account(s) maintained in the Board may be 
temporarily suspended to the extent of the debt that is owed. Depending 
on the type of transaction, the suspension could preclude its payment, 
removal, or transfer, as well as prevent the payment of interest or 
discount due on the transaction. Should the dispute be resolved in the 
debtor's favor, the suspension will be immediately lifted.
    (d) During the review period, interest, penalties, and 
administrative costs authorized by law will continue to accrue.
    (e) If the debtor does not exercise the right to request a review 
within the time specified in this section or if, as a result of the 
review, it is determined that the debt is due and no written agreement 
is executed, then administrative offset will be ordered in accordance 
with the regulations in this subpart without further notice.



Sec. 1639.53  Written agreement for repayment.

    A debtor who admits liability but elects not to have the debt 
collected by administrative offset will be afforded an opportunity to 
negotiate a written agreement for repaying the debt. If the financial 
condition of the debtor does not support the ability to pay in one lump 
sum, the Board may consider reasonable installments. No installment 
arrangement will be considered unless the debtor submits a financial 
statement, executed under penalty of perjury, reflecting the debtor's 
assets, liabilities, income, and expenses. The financial statement must 
be submitted within 10 business days of the Board's request for the 
statement. At the Board's option, a confess-judgment note or bond of 
indemnity with surety may be required for installment agreements. 
Notwithstanding the provisions of this section, any reduction or 
compromise of a claim will be governed by 31 U.S.C. 3711.



Sec. 1639.54  Requests for offset to Federal agencies.

    The Executive Director may request that funds due and payable to a 
debtor by another Federal agency be paid to the Board in payment of a 
debt owed to the Board by that debtor. In requesting administrative 
offset, the Board, as creditor, will certify in writing to the Federal 
agency holding funds of the debtor:
    (a) That the debtor owes the debt;
    (b) The amount and basis of the debt; and
    (c) That the Board has complied with the requirements of 31 U.S.C. 
3716, its own administrative offset regulations in this subpart, and the 
applicable provisions of 4 CFR part 102 with respect to providing the 
debtor with due process.



Sec. 1639.55  Requests for offset from Federal agencies.

    Any Federal agency may request that funds due and payable to its 
debtor by the Board be administratively offset in order to collect a 
debt owed to that agency by the debtor, so long as the funds are not 
payable from net assets available for Thrift Savings Plan benefits. The 
Board will initiate the requested offset only:
    (a) Upon receipt of written certification from the creditor agency 
stating:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt;

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    (3) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (4) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 4 CFR part 102, 
including providing any required hearing or review; and
    (b) Upon a determination by the Board that collection by offset 
against funds payable by the Board would be in the best interest of the 
United States as determined by the facts and circumstances of the 
particular case, and that such an offset would not otherwise be contrary 
to law.



Sec. 1639.56  Expedited procedure.

    The Board may effect an administrative offset against a payment to 
be made to the debtor before completion of the procedures required by 
Sec. Sec. 1639.51 and 1639.52 if failure to take the offset would 
substantially jeopardize the Board's ability to collect the debt and the 
time before the payment is to be made does not reasonably permit the 
completion of those procedures. An expedited offset will be promptly 
followed by the completion of those procedures. Amounts recovered by 
offset, but later found not to be owed to the Board, will be promptly 
refunded.



PART 1640_PERIODIC PARTICIPANT STATEMENTS--Table of Contents

Sec.
1640.1 Definitions.
1640.2 Information regarding account.
1640.3 Statement of individual account.
1640.4 Account transactions.
1640.5 TSP Fund information.
1640.6 Methods of providing information.

    Authority: 5 U.S.C. 8439(c)(1) and (c)(2), 5 U.S.C. 8474(b)(5) and 
(c)(1).

    Source: 68 FR 35501, June 13, 2003, unless otherwise noted.



Sec. 1640.1  Definitions.

    Definitions generally applicable to the Thrift Savings Plan are set 
forth at 5 CFR 1690.1.



Sec. 1640.2  Information regarding account.

    The Board will provide to each participant four (4) times each 
calendar year the information described in Sec. Sec. 1640.3, 1640.4, 
and 1640.5. Plan participants can obtain account balance information on 
a more frequent basis from the TSP Web site and the ThriftLine.



Sec. 1640.3  Statement of individual account.

    In the quarterly statements, the Board will furnish each participant 
with the following information concerning the participant's individual 
account:
    (a) Name, account number, and date of birth under which the account 
is established;
    (b) Retirement system coverage and employment status of the 
participant, as provided by the employing agency;
    (c) Statement whether the participant has a beneficiary designation 
on file with the TSP record keeper;
    (d) Contribution allocation that is current at the end of the 
statement period;
    (e) Beginning and ending dates of the period covered by the 
statement;
    (f) The following information for and, as of the close of business 
on the ending date of, the period covered by the statement:
    (1) The total account balance and tax-exempt balance, if applicable;
    (2) The account balance and activity for each source of 
contributions;
    (3) The account balance and activity in each TSP Fund, including the 
dollar amount of the transaction, the share price, and the number of 
shares; and
    (4) Loan information and activity, if applicable;
    (g) Any other information concerning the account that the Board 
determines should be included in the statement.

[68 FR 35501, June 13, 2003, as amended at 70 FR 32214, June 1, 2005; 72 
FR 51354, Sept. 7, 2007]



Sec. 1640.4  Account transactions.

    (a) Where relevant, the following transactions will be reported in 
each individual account statement:
    (1) Contributions;
    (2) Withdrawals;
    (3) Forfeitures;
    (4) Loan disbursements and repayments;
    (5) Transfers among TSP Funds;

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    (6) Adjustments to prior transactions;
    (7) Transfers or rollovers from traditional individual retirement 
accounts (IRAs) and eligible employer plans; and
    (8) Any other transaction that the Executive Director determines 
will affect the status of the individual account.
    (b) Where relevant, the statement will contain the following 
information concerning each transaction identified in paragraph (a) of 
this section:
    (1) Type of transaction;
    (2) TSP Funds affected;
    (3) Date the transaction was posted and, where relevant, any ea