[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2006 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
22
Part 300 to End
Revised as of April 1, 2005
Foreign Relations
________________________
Containing a codification of documents of general
applicability and future effect
As of April 1, 2005
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................................................. vi
Title 22:
Chapter III--Peace Corps 3
Chapter IV--International Joint Commission, United
States and Canada 89
Chapter V--Broadcasting Board of Governors 99
Chapter VII--Overseas Private Investment Corporation 223
Chapter IX--Foreign Service Grievance Board
Regulations 267
Chapter X--Inter-American Foundation 283
Chapter XI--International Boundary and Water
Commission, United States and Mexico, United States
Section 335
Chapter XII--United States International Development
Cooperation Agency 383
Chapter XIV--Foreign Service Labor Relations Board;
Federal Labor Relations Authority; General Counsel
of the Federal Labor Relations Authority; and the
Foreign Service Impasse Disputes Panel 403
Chapter XV--African Development Foundation 457
Chapter XVI--Japan-United States Friendship
Commission 511
Chapter XVII--United States Institute of Peace 521
Finding Aids:
[[Page iv]]
Table of CFR Titles and Chapters........................ 533
Alphabetical List of Agencies Appearing in the CFR...... 551
List of CFR Sections Affected........................... 561
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 301.1 refers
to title 22, part 301,
section 1.
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[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2005), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of textual material
appearing in the Code of Federal Regulations.
INQUIRIES
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ELECTRONIC SERVICES
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mail, [email protected].
[[Page viii]]
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
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2005.
[[Page ix]]
THIS TITLE
Title 22--Foreign Relations is composed of two volumes. The first
volume, Parts 1 to 299 contains Chapter I--Department of State
regulations and Chapter II--Agency for International Development
regulations. The second volume, Part 300 to End is composed of Chapter
III--Peace Corps; Chapter IV--International Joint Commission, United
States and Canada; Chapter V--Broadcasting Board of Governors; Chapter
VII--Overseas Private Investment Corporation; Chapter IX--Foreign
Service Grievance Board Regulations; Chapter X--Inter-American
Foundation; Chapter XI--International Boundary and Water Commission,
United States and Mexico, United States Section; Chapter XII--United
States International Development Cooperation Agency; Chapter XIV--
Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority; and
the Foreign Service Impasse Disputes Panel; Chapter XV--African
Development Foundation; Chapter XVI--Japan-United States Friendship
Commission; and Chapter XVII--United States Institute of Peace. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 2005.
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains part 300 to End)
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Part
chapter iii--Peace Corps.................................... 301
chapter iv--International Joint Commission, United States
and Canada................................................ 401
chapter v--Broadcasting Board of Governors.................. 501
chapter vii--Overseas Private Investment Corporation........ 705
chapter ix--Foreign Service Grievance Board Regulations..... 901
chapter x--Inter-American Foundation........................ 1001
chapter xi--International Boundary and Water Commission,
United States and Mexico, United States Section........... 1100
chapter xii--United States International Development
Cooperation Agency........................................ 1201
chapter xiv--Foreign Service Labor Relations Board; Federal
Labor Relations Authority; General Counsel of the Federal
Labor Relations Authority; and the Foreign Service Impasse
Disputes Panel............................................ 1411
chapter xv--African Development Foundation.................. 1500
chapter xvi--Japan-United States Friendship Commission...... 1600
chapter xvii--United States Institute of Peace.............. 1701
[[Page 3]]
CHAPTER III--PEACE CORPS
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Part Page
301 Public access to classified material........ 5
303 Procedures for disclosure of information
under the Freedom of Information Act.... 5
304 Claims against Government under Federal Tort
Claims Act.............................. 16
305 Eligibility and standards for Peace Corps
volunteer service....................... 20
306 Volunteer discrimination complaint procedure 22
308 Implementation of the Privacy Act of 1974... 22
309 Claims collection........................... 31
310 Governmentwide debarment and suspension
(nonprocurement)........................ 48
311 New restrictions on lobbying................ 71
312 Governmentwide requirements for drug--free
workplace (financial assistance)........ 83
[[Page 5]]
PART 301_PUBLIC ACCESS TO CLASSIFIED MATERIAL--Table of Contents
Sec.
301.1 Introduction.
301.2 Requests for mandatory declassification review.
301.3 Action on requests for declassification review.
Authority: E.O. 12356, 43 FR 14874 dated April 2, 1982.
Source: 49 FR 13692, Apr. 6, 1984, unless otherwise noted.
Sec. 301.1 Introduction.
The following regulations implement Executive Order 12356 and
provide guidance for members of the public desiring a review for
declassification of a document of the Peace Corps.
Sec. 301.2 Requests for mandatory declassification review.
(a) All information originally classified by the Peace Corps shall
be subject to review for declassification.
(b) Requests for review of such information for declassification
shall be in writing, addressed to the Peace Corps Director of Security,
Peace Corps, Washington, DC 20526, and reasonably describe the
information sought with sufficient specificity to enable its location
with a reasonable amount of effort. Only requests made by a United
States citizen or a permanent resident alien, a Federal agency or a
State or local government will be considered.
(c) Requests relating to information, either derivatively classified
by the Peace Corps or originally classified by another agency but in the
possession of the Peace Corps, shall be forwarded, together with a copy
of the record, to the originating agency. The transmittal may contain in
Peace Corps recommendation for action.
Sec. 301.3 Action on requests for declassification review.
(a) The Director of Security shall present each request for
declassification to the Peace Corps Classification Review Committee,
which shall consist of the Associate Director for International
Operations, the Associate Director for Management and the General
Counsel, or their designees, together with his or her recommendation for
action.
(b) Every effort will be made to complete action on each request
within 60 days of receipt thereof.
(c) Information shall be declassified or downgraded as soon as
national security considerations permit. If the Classification Review
Committee determines that the material for which review is requested no
longer requires this protection, it shall be declassified and made
available to the requester unless withholding is otherwise authorized by
law.
(d) If the Peace Corps Classification Review Committee determines
that requested information must remain classified, the requester shall
be given prompt notice of the decision and, if possible, a brief
explanation of why the information cannot be declassified.
(e) The Peace Corps may refuse to confirm or deny the existence or
non-existence of requested information whenever the fact of its
existence or non-existence is itself classified under E.O. 12356.
(f) A requester may appeal a refusal to declassify information to
the Director of the Peace Corps, or the Director's designee. Appeals
shall be in writing, addressed to the Director of the Peace Corps,
Washington, DC 20526, and shall briefly state the reasons why the
requester believes that the Peace Corps Classification Review Committee
decision is in error. Appeals must be submitted within 30 days after
receipt of notice of the Classification Review Committee decision. The
decision of the Peace Corps Director, or designee, will be based on the
entire record, and will be rendered in writing within 60 days after
receipt of an appeal. The decision of the Director or Director's
designee is the final Peace Corps action on a request.
PART 303_PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE FREEDOM
OF INFORMATION ACT--Table of Contents
Sec.
303.1 Purpose.
303.2 Definitions.
303.3 Policy.
[[Page 6]]
303.4 Records published in the Federal Register.
303.5 Public reading room.
303.6 Procedures for use of public reading room.
303.7 Index of records.
303.8 Requests for records.
303.9 Exemptions for withholding records.
303.10 Responsibilities and authorities.
303.11 Denials.
303.12 Appeals.
303.13 Fees.
303.14 Procedures for responding to a subpoena.
Authority: 5 U.S.C. 552; 22 U.S.C. 2501, et. seq.; E.O. 12137, 44 FR
29023, 3 CFR, 1979 Comp., p. 389; E.O. 12600, 52 FR 23781, 3 CFR, 1987
Comp., p. 235.
Source: 68 FR 66008, Nov. 25, 2003, unless otherwise noted.
Sec. 303.1 Purpose.
This part sets out the rules and procedures the Peace Corps follows
in making records available to the public under the Freedom of
Information Act (FOIA).
Sec. 303.2 Definitions.
As used in this part--
(a) 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 determining whether a requester has made
a commercial use request, the Peace Corps will look to the use to which
a requester will put the documents requested. When the Peace Corps has
reasonable cause to doubt the requester's stated use of the records
sought, or where the use is not clear from the request itself, it will
seek additional clarification before assigning the request to a
category.
(b) Duplication means the process of making a copy of a record
requested pursuant to this part. Such copies can take the form of paper
copy, microform, audio-visual materials, or machine readable electronic
documents, among others.
(c) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education which operates a program or programs of scholarly
research.
(d) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis 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.
(e) OIG records means those records as defined generally in this
section which originated with or are in the possession and control of
the Office of Inspector General (OIG) of the Peace Corps which have been
compiled for law enforcement, audit, and investigative functions and/or
any other purpose authorized under the IG Act of 1978, as amended.
(f) Records means books, papers, maps, photographs, or other
documentary materials, regardless of whether the format is physical or
electronic, made or received by the Peace Corps in connection with the
transaction of Peace Corps' business and preserved by the Peace Corps as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Peace Corps, or
because of the informational value of data in them. The term does not
include, inter alia, books, magazines, or other materials acquired
solely for library purpose, or that are otherwise publicly available.
(g) 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 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
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this category. In the case of ``freelance'' journalists, they will be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it.
(h) Review means the process of examining a document located in
response to a request to determine whether any portion of such document
is exempt from disclosure. It also includes processing any such document
for disclosure. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
(i) Search means the process of looking for and retrieving records
that are responsive to a request for records. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Searches may be
conducted manually or by automated means and will be conducted in the
most efficient and least expensive manner. If the Agency cannot identify
the requested records after a 2 hour search, it can determine that the
records were not adequately described and ask the requester to provide a
more specific request.
Sec. 303.3 Policy.
The Peace Corps will make its records concerning its operations,
activities, and business available to the public consistent with the
requirements of the FOIA. Records exempt from disclosure under the FOIA
may be made available at the discretion of the Peace Corps.
Sec. 303.4 Records published in the Federal Register.
The Peace Corps publishes its notices and substantive regulations in
the Federal Register. It also publishes information on its basic
structure and operations necessary to inform the public how to deal
effectively with the Peace Corps in the United States Government Manual,
a special publication of the Federal Register. The Peace Corps will make
reasonable efforts to currently update such information, which includes
information on Peace Corps' location and functions, and how the public
may obtain information or forms, or make submittals or requests. The
Peace Corps' published regulations are at 22 CFR Chapter III.
Sec. 303.5 Public reading room.
(a) The Peace Corps will maintain a public reading room at its
headquarters at 1111 20th Street, NW., Washington, DC 20526. This room
will be supervised and will be open to the public during Peace Corps'
regular business hours for inspecting and copying records described in
paragraph (b) of this section.
(b) Subject to the limitation stated in paragraph (c) of this
section, the following records will be made available in the public
reading room:
(1) All final public opinions, including concurring and dissenting
opinions, and orders issued in the adjudication of cases that involve
the Peace Corps;
(2) Statements of policy and interpretations adopted by the Peace
Corps that are not published in the Federal Register;
(3) Administrative staff manuals and instructions to the staff that
affect the public;
(4) Copies of records, regardless of form or format, released to any
person in response to a public request for records which the Peace Corps
determines are likely to become subject to subsequent requests for
substantially the same records, and a general index of such records;
(5) The index required by Sec. 303.7; and
(6) Other records the Peace Corps has determined are of general
interest to members of the public in understanding activities of the
Peace Corps or in dealing with the Peace Corps in connection with those
activities.
(c) Certain records otherwise required by FOIA to be available in
the public reading room may be exempt from mandatory disclosure pursuant
to Sec. 552(b) of the FOIA. Such record will not be made available in
the public reading room. Other records maintained in the public reading
room may be edited by the deletion of identifying details concerning
individuals to prevent a clearly unwarranted invasion of personal
privacy. In such cases, the
[[Page 8]]
record shall have attached to it an explanation of the deletion. The
extent of the deletion shall be indicated, unless doing so would harm an
interest protected by the exemption under which the deletion is made. It
technically feasible, the extent of the deletion shall be indicated at
the place in the record where the deletion was made.
(d) Electronic reading room. Records required by the FOIA to be
maintain and made available in the public reading room created by the
Peace Corps on or after November 1, 1996, shall be made available
electronically.
(e) Most electronic public reading room records will also be made
available to the public on the Peace Corps Web site at http://
www.peacecorps.gov.
Sec. 303.6 Procedures for use of public reading room.
Any member of the public may inspect or copy records described in
Sec. 303.5(b) in the public reading room during regular business hours.
Because it will sometimes be impossible to produce records or copies of
records on short notice, a person who wishes to inspect or copy records
shall arrange a time in advance, by telephone or letter request made to
the Peace Corps FOIA Officer. Persons submitting request by telephone
will be notified whether a written request would be advisable to aid in
the identification and expeditious processing or the records sought.
Written request should identify the records sought in the manner
described in Sec. 303.8(b) and should request a specific date for
inspecting the records. The requester will be advised as promptly as
possible if, for any reason, it may not be possible to make the records
sought available on the date requested.
Sec. 303.7 Index of records.
The Peace Corps will maintain a current index identifying any matter
within the scope of Sec. 303.4 or Sec. 303.5(b)(1) through (5). The
index will be maintained and made available for public inspection and
copying at the Peace Corps' headquarters in Washington, DC. The cost of
a copy of the index will not exceed the standard charge for duplication
set out in Sec. 303.13(e). The Peace Corps will also make the index
available on its public Web site.
Sec. 303.8 Requests for records.
(a) Except for records required by the FOIA to be published in the
Federal Register or to be made available in the public reading room,
Peace Corps records will be made promptly available, upon request, to
any person in accordance with this section, unless it is determined that
such records should be withheld and are exempt form mandatory disclosure
under the FOIA.
(b) Requests. Requests for records under this section shall be made
in writing, shall include the signature of the requester, and the
envelope and the letter shall be clearly marked ``Freedom of Information
Request.'' No e-mail requests will be accepted. All such requested shall
be addressed to the FOIA Officer. Requests by letter shall use the
address given in Sec. 303.5(a). Any request not marked and addressed as
specified in this paragraph will be so marked by Peace Corps personnel
as soon as it is properly identified, and will be forwarded immediately
to the FOIA Officer. A request improperly addressed will not be deemed
to have been received for purposes of the time period set out in
paragraph (h) of this section until it has been received by the FOIA
Officer. Upon receipt of an improperly addressed request, the FOIA
Officer shall notify the requester of the date on which the time period
began. The request shall be stamped ``received'' on the date it is
received by the FOIA Office.
(c) A request must reasonably describe the records requested so that
employees of the Peace Corps who are familiar with the subject area of
the request are able, with a reasonable amount of effort, to determine
which particular records are within the scope of the request. If it is
determined that a request does not reasonably describe the records
sought, the requester shall be so informed and provided an opportunity
to confer with Peace Corps personnel in order to attempt to reformulate
the request in a manner that will meet the needs of the requester and
the requirements of this paragraph. If the Agency cannot identify the
requested
[[Page 9]]
records after a 2 hour search, it can determine that the records were
not adequately described and ask the requester to provide a more
specific request.
(d) To facilitate the location of records by the Peace Corps, a
requester should try to provide the following kinds of information, if
known;
(1) The specific event or action to which the record refers;
(2) The unit or program of the Peace Corps which may be responsible
for or may have produced the record;
(3) The date of the record or the date or period to which it refers
or relates;
(4) The type of record, such as an application, a particular form, a
contract, or a report;
(5) Personnel of the Peace Corps who may have prepared or have
knowledge of the record; or
(6) Citations to newspapers or publications which have referred to
the record.
(e) The Peace Corps is not required to create a record or to perform
research to satisfy a request.
(f) Any request for a waiver or reduction of fees should be included
in the FOIA request, and any such request should indicate the grounds
for a waiver or reduction of fees, as set out in Sec. 303.13(f). The
Peace Corps shall respond to such request as promptly as possible.
(g) Format. The Peace Corps will provide records in the form or
format indicated by the requester to the extent such records are readily
reproducible in the requested form or format.
(h) Initial response/delays. (1) The FOIA Officer, upon request for
any records made in accordance with this section, except in the case of
a request for OIG records, shall make an initial determination of
whether to comply with or deny such request and dispatch such
determination to the requester within 20 business days after receipt of
such request, except for unusual circumstances, in which case the time
limit may be extended for up to 10 business days by written notice to
the requester setting forth the reasons for such extension and the date
on which a determination is expected to be dispatched.
(2) If the FOIA Officer determines that a request or portion thereof
is for OIG records, the FOIA Officer shall promptly refer the request or
portion thereof to the OIG and send notice of such referral to the
requester. In such case, the OIG FOIA Officer shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 business days
after receipt of such request, except for unusual circumstances, in
which case the time limit may be extended for up to 10 business days by
written notice to the requester setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched. If for any reason, a request for Agency information goes
directly to the OIG rather than through the FOIA Officer, the OIG shall
provide notice to the FOIA Officer of its receipt of the request. The
FOIA Office and the OIG should normally consult with each other whenever
they receive requests for the same or similar records.
(3) Unusual circumstances. As used in this part, ``unusual
circumstances'' are limited to the following, but only to the extent
reasonably necessary for the proper processing of the particular
request:
(i) The need to search for and collect the requested records from
components or locations that are separate from the office processing the
request;
(ii) 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
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or organization having a
substantial interest in the determination of the request or among two or
more components of the Peace Corps having a substantial subject matter
interest therin.
(i) If a request is particularly broad or complex so that it cannot
be completed within the time periods stated in paragraph (h) of this
section, the Peace Corps may ask the requester to narrow the request or
agree to an additional delay.
(j) When no determination can be dispatched within the applicable
time
[[Page 10]]
limit, the FOIA Officer or the OIG FOIA Officer shall inform the
requester of the reason for the delay, the date on which a determination
may be expected to be dispatched, and the requester's right to treat the
delay as a denial and to appeal to the Associate Director for the Office
of Management or the Inspector General, in accordance with Sec. 303.12.
If no determination has been dispatched by the end of the 20-day period,
or the last extension thereof, the requester may deem the request
denied, and exercise a right of appeal in accordance with Sec. 303.12.
The FOIA Officer or the OIG FOIA Officer may ask the requester to forego
an appeal until a determination is made.
(k) After it has been determined that a request will be granted, the
responsible official will act with due diligence in providing a prompt
response.
(l) Expedited treatment. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever the requester
demonstrates a compelling need. A compelling need means:
(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
Peace Corps or Federal government activity and the request is 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 Peace Corps' or the Federal
government's integrity which affect 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. For a prompt
determination, a request for expedited processing must be properly
addressed and marked and received by the Peace Corps pursuant to
paragraph (b) of this section.
(3) A requester who seeks expedited processing must submit a
statement demonstrating a compelling need that is certified by the
requester to be true and correct to the best of that person's knowledge
and belief, explaining in detail the basis for requesting expedited
processing.
(4) Within ten business days of its receipt of a request for
expedited processing, the FOIA Officer or the OIG FOIA Officer shall
decide whether to grant the request and shall notify the requester of
the decision. If a request for expedited treatment is granted, the
request shall be given priority and shall be processed as soon as
practicable. If a request for expedited processing is denied, any appeal
of that decision shall be acted on expeditiously by the Peace Corps.
(5) Appeals shall be made to the Associate Director for the Office
of Management, who shall respond within 10 business days of receipt of
the appeal.
Sec. 303.9 Exemptions for withholding records.
(a) The Peace Corps may withhold a requested record from public
disclosure only if the record fits within one or more of the following
FOIA exemptions:
(1) Matter specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and is in fact properly classified pursuant to such
Executive Order;
(2) Matter which is related solely to the internal personnel rules
and practices of the Peace Corps;
(3) Matter which is specifically exempted from disclosure by statute
(other than exemptions under FOIA at 5 U.S.C. 552(b)), provided that
such statute requires that the matter be withheld from the public in
such a manner as to leave no discretion on the issue, or establishes
particular criteria for withholding, or refers to particular types of
matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the Peace Corps;
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
[[Page 11]]
(7) Records or information compiled for law enforcement purposes
including enforcing the Peace Corps Act or any other law, but only to
the extent that the production of such law enforcement records or
information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person or a recipient of a right to a fair
trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis; and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(b) In the event that one or more of the above exemptions in
paragraph (a) of this section apply, any reasonably segregable portion
of a record shall be provided to the requester after deletion of the
portions that are exempt. The amount of information deleted shall be
indicated on the released portion of the record, unless doing so would
harm the interest protected by the exemption under which the deletion is
made. If technically feasible, the amount of information deleted shall
be indicated at the place in the record where the deletion is made. At
the discretion of the Peace Corps officials authorized to grant or deny
a request for records, it may be possible to provide a requester with:
(1) A summary of information in the exempt portion of a record; or
(2) An oral description of the exempt portion of a record.
(c) No requester shall have a right to insist that any or all of the
techniques in paragraph (b) of this section should be employed in order
to satisfy a request.
(d) Records that may be exempt from disclosure pursuant to paragraph
(a) of this section may be made available at the discretion of the Peace
Corps.
(e) Proprietary information. (1) It is the policy of the Peace Corps
to withhold proprietary information that falls within the protection of
paragraph (a)(4) of this section. Proprietary information includes trade
secrets, or commercial or financial information obtained from a person,
the disclosure of which could reasonably be expected to cause
substantial competitive harm.
(2) It is also the policy of the Peace Corps to give submitters of
arguably proprietary information an adequate opportunity to provide
information to the Peace Corps to establish that the information
constitutes protected proprietary information.
(3) A person submitting arguably proprietary information to the
Peace Corps will be notified in writing by the Peace Corps if there is a
FOIA request for the information, unless:
(i) The Peace Corps has already decided that the information should
be withheld;
(ii) The information has been lawfully published or has been
officially made available to the public; or
(iii) Disclosure of the information is required by law.
(4) The notice shall afford the submitter at least ten business days
in which to object to the disclosure of any requested information.
Whenever the Peace Corps provides such notice to the submitter, it shall
also notify the requester that notice and an opportunity to comment are
being provided to the submitter.
(5) A submitter's request for protection for information under
paragraph (a)(4) of this section shall:
(i) Specifically identify the exact material claimed to be
confidential proprietary information;
(ii) State whether the information identified has ever been released
to a
[[Page 12]]
person who is not in a confidential relationship with the submitter;
(iii) State the basis for the submitter's belief that the
information is not commonly known or readily ascertainable by outside
persons; and
(iv) State how release of the information would cause harm to the
submitter's competitive position.
(6) The Peace Corps shall consider the submitter's objections and
specific grounds for non-disclosure when deciding whether to disclose
the information. If the Peace Corps decides to disclose the information,
it shall, to the extent permitted by law, provide the submitter at least
ten business days notice of its decision before the information is
disclosed and a statement of its reasons for not sustaining the
objection to disclosure. Whenever the Peace Corps notifies the submitter
of its final decision, it shall also notify the requester.
(7) Whenever a FOIA requester brings suit seeking to compel
disclosure of proprietary information, the Peace Corps shall promptly
notify the submitter.
[68 FR 66008, Nov. 25, 2003; 69 FR 68695, Dec. 9, 2003]
Sec. 303.10 Responsibilities and authorities.
(a) Legal counsel. The General Counsel shall furnish legal advice to
Peace Corps officials and staff as to their obligations under this part
and shall take such other actions as may be necessary or appropriate to
assure a consistent and equitable application of the provisions of this
part by and within the Peace Corps.
(b) Authority to grant or deny requests. The FOIA Officer is
authorized to grant or deny requests for records, except for OIG
records, under this part. The OIG FOIA Officer is authorized to grant or
deny requests for OIG records under this part. The FOIA Officer and the
OIG FOIA Officer shall consult with each other when a request includes
both Peace Corps and OIG records in order to ensure consistency and lack
of duplication in processing the request.
(c)(1) Records received from other agencies. When the Peace Corps
receives a request for a record in its possession that it has received
from another agency, it shall determine whether the other agency is
better qualified to decide whether the record is exempt from disclosure
and, if so, whether it should be disclosed as a matter of discretion. If
the Peace Corps determines it is better qualified to process the record
in response to the request, then it shall do so. If the Peace Corps
determines it is not better qualified to process the request, it shall
either:
(i) Consult with the other agency before responding to the request;
or
(ii) Refer the responsibility for responding to the request for the
record to the other agency (but only if the agency is subject to FOIA).
Ordinarily, the agency that originated a record will be presumed to be
best able to determine whether to disclose it.
(2) Law enforcement and classified information. Notwithstanding
paragraph (c)(1) of this section:
(i) Whenever the Peace Corps receives a request for a record
containing information that relates to an investigation of a possible
violation of law that was originated by another agency, the Peace Corps
will either consult with the other agency before responding or refer the
responsibility for responding to the request to the other agency; and
(ii) Whenever a request is made for a record containing information
that has been classified by another agency or may be appropriate for
classification under Executive Order 12958 or any other executive order
concerning the classification of records, the Peace Corps shall refer
the responsibility for responding to the request regarding that
information to the agency that classified the information, should
consider the information for classification, or has the primary interest
in the information, as appropriate.
(3) Notice of referral. Whenever the Peace Corps refers all or any
part of the responsibility for responding to a request to another
agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of the agency to which the request has
been referred and the part of the request that has been referred.
(4) Effect of consultations and referrals on timing of response. All
consultations and referrals will be handled according
[[Page 13]]
to the date the FOIA request was initially received by the Peace Corps.
(5) Agreements with other agencies. The Peace Corps may make
agreements with other agencies to eliminate the need for consultations
or referrals for particular types of records.
Sec. 303.11 Denials.
(a) A denial of a written request for a record that complies with
the requirements of Sec. 303.8 shall be in writing and shall include,
as applicable:
(1) A reference to the applicable exemption or exemptions in Sec.
303.9(a) upon which the denial is based;
(2) An explanation of how the exemption applies to the requested
records;
(3) A statement explaining why it is deemed unreasonable to provide
segregable portions of the record after deleting the exempt portions;
(4) An estimate of the volume of requested matter denied unless
providing such estimate would harm the interest protected by the
exemption under which the denial is made, if other than the FOIA
Officer;
(5) The name and title of the person or persons responsible for
denying the request, if other than the FOIA Officer; and
(6) An explanation of the right to appeal the denial and the
procedures for submitting an appeal, including the address of the
official to whom appeals should be submitted.
(b) A partial deletion of a record made available to a requester
shall be deemed a denial of a record for purposes of paragraph (a) of
this section. All denials shall be treated as final opinions under Sec.
303.5(b).
Sec. 303.12 Appeals.
(a) Any person whose written request has been denied is entitled to
appeal the denial within 20 business days by writing to the Associate
Director of the Office of Management or, in the case of a denial of a
request for OIG Records, the Inspector General, at the address given in
Sec. 303.5(a). The envelope and letter should be clearly marked
``Freedom of Information Act Appeal.'' An appeal need not be in any
particular form, but should adequately identify the denial, if possible,
by describing the requested record, identifying the official who issued
the denial, and providing the date on which the denial was issued.
(b) The decision of the Associate Director for the Office of
Management or the Inspector General on an appeal shall be in writing
and, in the event the denial is in whole or in part upheld, shall
contain an explanation responsive to the arguments advanced by the
requester, the matters described in Sec. 303.11(a)(1) through (4), and
the provisions for judicial review of such decision under section
552(a)(4) of the FOIA. The decision shall be dispatched to the requester
within 20 business days after receipt of the appeal, unless an
additional period is justified pursuant to Sec. 303.8(i) and such
period taken together with any earlier extension does not exceed 10
business days. The decision by the Associate Director for the Office of
Management or the Inspector General shall constitute the final action of
the Peace Corps. All such decisions shall be treated as final opinions
under Sec. 303.5(b).
Sec. 303.13 Fees.
(a) For information routinely provided by the Peace Corps to the
public in the normal course of doing business, such as informational or
recruiting brochures, no fees will be charged.
(b) For each a commercial use request, fees will be limited to
reasonable standard charges for document search, review, and
duplication.
(c) For each request for records sought by a representative of the
news media or by an educational or non-commercial scientific
institution, fees shall be limited to reasonable standard charges for
document duplication after the first 100 pages.
(d) For all other requests, fees shall be limited to reasonable
standard charges for search time after the first 2 hours and duplication
after the first 100 pages.
(e) The schedule of reasonable standard charges for services
regarding the production or disclosure of the Peace Corps records is as
follows:
(1) Manual search and review of records: Salary rate of employee[s]
performing the search and review plus 16%. Charges for search and review
[[Page 14]]
time less than a full hour will be billed by quarter-hour segments;
(2) Computer time: Actual costs as incurred;
(3) Duplication by paper copy: 10 cents per page;
(4) Duplication by other methods: Actual costs as incurred;
(5) Certification of true copies: $1.00 each;
(6) Packing and mailing records: Actual costs as incurred; and
(7) Special delivery or express mail: Actual charges as incurred.
(f) Fee waivers: Fees will be waived or reduced below the fees
established under paragraph (e) of this section if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Peace Corps or Federal government and is not primarily in the
commercial interest of the requester.
(1) In order to determine whether the disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Federal government, the Peace Corps shall consider the following
four criteria:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the Peace Corps or
Federal government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Peace Corps or Federal government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding;''
and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of Peace Corps or Federal government operations or
activities.
(2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the Peace
Corps shall consider the following two factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and if so,
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the requester.''
(3) These fee waiver/reduction provisions will be subject to appeal
in the same manner as appeals from denial under Sec. 303.12.
(g) No fee will be charged under this section unless the cost of
routine collection and processing of the fee payment is likely to exceed
the average cost of processing a payment.
(h) Requesters must agree to pay all fees charged for services
associated with their requests. The Peace Corps will assume that
requesters agree to pay all charges for services associated with their
requests up to $25 unless otherwise indicated by the requester.
(i) No requester will be required to make an advance payment of any
fee unless:
(1) The requester has previously failed to pay a required fee to
another federal agency or to Peace Corps within 30 days of the date of
billing, in which case an advance deposit of the full amount of the
anticipated fee together with the fee then due plus interest accrued may
be required. (The request will not be deemed to have been received by
the Peace Corps until such payment is made.); or
(2) The Peace Corps determines that an estimated fee will exceed
$250, in which case the requester shall be notified of the amount of the
anticipated fee or such portion thereof as can readily be estimated.
Such notification shall be transmitted as soon as possible, but in any
event within 5 business days of receipt of the request by the Peace
Corps. The notification shall offer the requester the opportunity to
confer with appropriate representatives of the Peace Corps for the
purpose of reformulating the request so as to
[[Page 15]]
meet the needs of the requester at a reduced cost. The request will not
be deemed to have been received by the Peace Corps for purposes of the
initial 20-day response period until the requester makes a deposit on
the fee in an amount determined by the Peace Corps.
(j) Interest may be charged to those requesters who fail to pay the
fees charged. Interest will be assessed on the amount billed, starting
on the 31st day following the day on which the billing was sent. The
rate charged will be as prescribed in 31 U.S.C. 3717.
(k) The Agency is not required to process a request for a requester
who has not paid FOIA fees owed to another Federal agency.
(l) If the Peace Corps reasonably believes that a requester or group
of requesters is attempting to break a request into a series of requests
for the purpose of evading the assessment of fees, the Peace Corps shall
aggregate such requests and charge accordingly. Likewise, the Peace
Corps will aggregate multiple requests for documents received from the
same requester within 45 business days.
(m) The Peace Corps reserves the right to limit the number of copies
of any document that will be provided to any one requester or to require
that special arrangements for duplication be made in the case of bound
volumes or other records representing unusual problems of handling or
reproduction.
Sec. 303.14 Procedures for responding to a subpoena.
(a) Purpose and scope. (1) This part sets forth the procedures to be
followed in proceedings in which the Peace Corps is not a party,
whenever a subpoena, order or other demand (collectively referred to as
a ``demand'') of a court or other authority is issued for:
(i) The production or disclosure of any material contained in the
files of the Agency;
(ii) The production or disclosure of any information relating to
material contained in the files of the Agency;
(iii) The production or disclosure of any information or material
acquired by any person while such person was an employee of the Agency
as a part of the performance of his official duties or because of his
official status, or
(iv) The production of an employee of the Agency for the deposition
or an appearance as a witness in a legal action or proceeding.
(2) For purposes of this part, the term ``employee of the Agency''
includes all officers and employees of the Agency appointed by, or
subject to the supervision, jurisdiction or control of, the director of
the Agency, including personal services contractors. Also for purposes
of this part, records of the Agency do not include records of the Office
of Inspector General.
(3) This part is intended to provide instructions regarding the
internal operations of the Agency, and is not intended, and does not and
may not be relied upon, to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Agency.
(4) This part applies to:
(i) State and local court, administrative and legislative
proceedings; and
(ii) Federal court and administrative proceedings.
(5) This part does not apply to:
(i) Congressional requests or subpoenas for testimony or documents:
(ii) Employees or former employees making appearances solely in
their private capacity in legal or administrative proceedings that do
not relate to the Agency (such as cases arising out of traffic accidents
or domestic relations); Any questions whether the appearance relates
solely to the employee's or former employee's private capacity should be
referred to the Office of the General Counsel.
(6) Nothing in this part otherwise permits disclosure of information
by the Agency except as is provided by statute or other applicable law.
(b) Procedure in the event of a demand for production or disclosure.
(1) No employee or former employee of the Agency shall, in response to a
demand of a court or other authority set forth in Sec. 303.14(a)
produce any material, disclose any information or appear in any
proceeding, described in Sec. 303.14(a) without the approval of the
General Counsel or designee.
(2) Whenever an employee or former employee of the Peace Corps
receives a
[[Page 16]]
demand for the production of material or the disclosure of information
described in Sec. 303.14(a) he shall immediately notify and provide a
copy of the demand to the General Counsel or designee. The General
Counsel, or designee, shall be furnished by the party causing the demand
to be issued or served a written summary of the information sought, its
relevance to the proceeding in connection with which it was served and
why the information sought is unavailable by any other means or from any
other sources.
(3) The General Counsel, or designee, in consultation with
appropriate Agency officials, including the Agency's FOIA Officer, or
designee, and in light of the considerations listed in Sec. 303.14(d),
will determine whether the person on whom the demand was served should
respond to the demand.
(4) To the extent he deems it necessary or appropriate, the General
Counsel or designee, may also require from the party causing such demand
to be issued or served a plan of all reasonably foreseeable demands,
including but not limited to names of all employees and former employees
from whom discovery will be sought, areas of inquiry, length of time of
proceedings requiring oral testimony and identification of documents to
be used or whose production is sought.
(c) Considerations in determining whether production or disclosure
should be made pursuant to a demand. (1) In deciding whether to make
disclosures pursuant to a demand, the General Counsel or designee, may
consider, among things:
(i) Whether such disclosure is appropriate under the rules of
procedure governing the case or matter in which the demand arose; and
(ii) Whether disclosure is appropriate under the relevant
substantive law concerning privilege.
(2) Among the demands in response to which disclosure will not be
made are those demands with respect to which any of the following
factors exist:
(i) Disclosure would violate a statute or a rule of procedure;
(ii) Disclosure would violate the privacy rights of an individual;
(iii) Disclosure would violate a specific regulation;
(iv) Disclosure would reveal classified information, unless
appropriately declassified by the originating agency;
(v) Disclosure would reveal trade secrets or proprietary information
without the owner's consent;
(vi) Disclosure would otherwise adversely affect the interests of
the United States or the Peace Corps; or
(vii) Disclosure would impair an ongoing Inspector General or
Department of Justice investigation.
PART 304_CLAIMS AGAINST GOVERNMENT UNDER FEDERAL TORT CLAIMS ACT
--Table of Contents
General Provisions
Sec.
304.1 Scope; definitions.
Procedures
304.2 Administrative claim; when presented; appropriate Peace Corps
Office.
304.3 Administrative claim; who may file.
304.4 Administrative claim; evidence and information to be submitted.
304.5 Investigations.
304.6 Claims investigation.
304.7 Authority to adjust, determine, compromise, and settle claims.
304.8 Limitations on authority.
304.9 Referral to Department of Justice.
304.10 Review of claim.
304.11 Final denial of claim.
304.12 Action on approved claim.
Authority: 28 U.S.C. 2672; 28 CFR 14.11; secs. 4 and 5(h), 75 Stat.
612, 22 U.S.C. 2503; E.O. 11041, as amended, 27 FR 7859, 3 CFR 1959-1963
Comp., page 623; sec. 2(6), State Department Delegation of Authority No.
85-11A, as amended.
Source: 34 FR 5840, Mar. 28, 1969, unless otherwise noted.
General Provisions
Sec. 304.1 Scope; definitions.
(a) This subpart applies to claims asserted under the Federal Tort
Claims Act, as amended, accruing on or after January 18, 1967, for money
damages against the United States for injury to or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of an officer
[[Page 17]]
or employee of the Peace Corps, a person serving the Peace Corps under
invitational travel orders, or a Peace Corps Volunteer or trainee while
acting within the scope of his office or employment.
(b) This subpart is not applicable to claims arising in a foreign
country; it is applicable to claims arising in Puerto Rico and the
Virgin Islands.
(c) This subpart is issued subject to and consistent with applicable
regulations on administrative claims under the Federal Tort Claims Act
issued by the Attorney General (31 FR 16616; 28 CFR part 14).
(d) For the purposes of this subpart, the term ``General Counsel''
means the General Counsel of the Peace Corps or his designee.
Procedures
Sec. 304.2 Administrative claim; when presented; appropriate Peace
Corps Office.
(a) For purposes of this subpart, a claim shall be deemed to have
been presented when the Peace Corps receives, at a place designated in
paragraph (b) of this section, an executed ``Claim for Damages or
Injury,'' Standard Form 95, or other written notification of an
incident, accompanied by a claim for money damages in a sum certain for
injury to or loss of property, for personal injury, or for death alleged
to have occurred by reason of the incident. A claim which should have
been presented to the Peace Crops, but which was mistakenly addressed to
or filed with another Federal agency, is deemed to have been presented
to the Peace Corps as of the date that the claim is received by the
Peace Corps. If a claim is mistakenly addressed to or filed with the
Peace Corps, the Peace Corps shall forthwith transfer it to the
appropriate Federal agency, if ascertainable, or return it to the
claimant.
(b) A claimant shall mail or deliver his claim to the General
Counsel, Peace Corps, 806 Connecticut Avenue NW., Washington, DC. 20525.
Sec. 304.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property, his duly authorized agent, or his legal
representative.
(b) A claim for personal injury may be presented by the injured
person, his duly authorized agent, or his legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or by any other person legally
entitled to assert such a claim in accordance with applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. Claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interests appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, he shall present with his
claim appropriate evidence that he has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his authority to present a claim on
behalf of the claimant.
Sec. 304.4 Administrative claim; evidence and information to be submitted.
(a) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by his attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed or designated by
the Peace Corps or another Federal agency. A copy of the report of the
examining physician shall be made available to the claimant upon the
claimant's written request provided that he has, upon request, furnished
the report referred
[[Page 18]]
to in the first sentence of this paragraph and has made or agrees to
make available to the Peace Corps any other physician's report
previously or thereafter made of the physical or mental condition which
is the subject matter of his claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his employer showing actual time lost from employment,
whether he is a full-or part-time employee, and wages or salary actually
lost;
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(b) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at the time of death,
including his monthly or yearly salary or earnings (if any), and the
duration of his last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of decedent's survivors, including identification of those survivors who
were dependent for support upon decedent at the time of his death.
(4) Degree of support afforded by decedent to each survivor
dependent upon him for support at the time of his death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information.
(1) Proof of ownership.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) Two or more itemized written estimates of the cost of such
repairs and any itemized receipt of payment for necessary repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 304.5 Investigations.
The Peace Corps may investigate, or the General Counsel may request
any other Federal agency to investigate, a claim filed under this
subpart.
Sec. 304.6 Claims investigation.
(a) When a claim has been filed with the Peace Corps, the General
Counsel will send a copy of the claim to the head of the office
concerned and ask him to designate one employee of that office who shall
act as, and who shall be referred to herein as, the Claims Investigating
Officer for that particular claim. The Claims Investigating Officer
shall, with the advice of the General Counsel, where necessary:
(1) Investigate as completely as is practicable the nature and
circumstances of the occurrence causing the loss or damage of the
claimant's property.
(2) Ascertain the extent of loss or damage to the claimant's
property.
[[Page 19]]
(3) Assemble the necessary forms with required data contained
therein.
(4) Prepare a brief statement setting forth the facts relative to
the claim (in the case of motor vehicle accidents, facts should be
recorded on Standard Form 91-A), a statement whether the claim satisfies
the requirements of this subpart, and a recommendation as to the amount
to be paid in settlement of the claim.
(5) The head of the office concerned will be responsible for
assuring that all necessary forms, statements, and all supporting papers
have been procured for the file and will transmit the entire file to the
General Counsel.
Sec. 304.7 Authority to adjust, determine, compromise, and settle claims.
The authority to consider, ascertain adjust, determine, compromise,
and settle claims under section 2672 of title 28, United States Code,
and this subpart, subject to Sec. 304.8, has been retained by the
Director of the Peace Corps.
Sec. 304.8 Limitations on authority.
(a) An award, compromise, or settlement of a claim under section
2672 of title 28, United States Code, and this subpart in excess of
$25,000 may be effected only with the prior written approval of the
Attorney General or his designee. For the purpose of this paragraph, a
principal claim and any derivative or subrogated claim shall be treated
as a single claim.
(b) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when, in the opinion of the General Counsel:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party, and the Peace Corps is unable to adjust
the third party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when the Peace Corps is informed or is otherwise aware that the
United States or an officer, employee, agent, or cost-type contractor of
the United States is involved in litigation based on a claim arising out
of the same incident or transaction.
Sec. 304.9 Referral to Department of Justice.
When Department of Justice approval or consultation is required
under Sec. 304.8, the referral or request shall be transmitted to the
Department of Justice by the General Counsel pursuant to 28 CFR 14.7
(1968).
Sec. 304.10 Review of claim.
(a) Upon receipt of the claim file from the head of the office
concerned, the General Counsel will ascertain that all supporting papers
are contained in the file.
(b) After legal review and recommendation by the General Counsel,
the Director of the Peace Corps will make a written determination on the
claim.
Sec. 304.11 Final denial of claim.
The General Counsel will send notification of the final denial of an
administrative claim to the claimant, his attorney, or legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial and
shall include a statement that, if the claimant is dissatisfied with the
Peace Corps action, he may file suit in an appropriate U.S. District
Court not later than 6 months after the date of mailing of the
notification.
Sec. 304.12 Action on approved claim.
(a) Payment of a claim approved under this subpart is contingent on
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard
From 95; and (2) a ``Voucher for Payment,'' Standard Form 1145, as
appropriate. When a claimant is represented by an attorney, the voucher
for payment shall designate the claimant and his attorney as copayees,
and the check
[[Page 20]]
shall be delivered to the attorney, whose address shall appear on the
voucher.
(b) Acceptance by the claimant, his agent, or legal representative
of an award, compromise, or settlement made under section 2672 or 2677
of title 28, United States Code, is final and conclusive on the
claimant, his agent or legal representative, and any other person on
whose behalf or for whose benefit the claim has been presented, and
constitutes a complete release of any claim against the United States
and against any officer or employee of the Government whose act or
omission gave rise to the claim, by reason of the same subject matter.
PART 305_ELIGIBILITY AND STANDARDS FOR PEACE CORPS VOLUNTEER SERVICE
--Table of Contents
Sec.
305.1 Purpose and general guideline.
305.2 Eligibility.
305.3 Background investigations.
305.4 Selection standards.
305.5 Procedures.
Authority: Sec. 4(b), 5(a) and 22, 75 Stat. 612, 22 U.S.C. 2504;
E.O. 12137, May 16, 1979, sec. 601, International Security and
Development Cooperation Act of 1981; 95 Stat. 1519 at 1540, sec.
417(c)(1), Domestic Volunteer Service Act (42 U.S.C. 5057(c)(1)).
Source: 49 FR 38939, Oct. 2, 1984, unless otherwise noted.
Sec. 305.1 Purpose and general guideline.
This subpart states the requirements for eligibility for Peace Corps
Volunteer service and the factors considered in the assessment and
selection of eligible applicants for training and service. In selecting
individuals for Peace Corps Volunteer service under this subpart, as
required by section 5(a) of the Peace Corps Act, as amended, ``no
political test shall be required to be taken into consideration, nor
shall there be any discrimination against any person on account of race,
sex, creed, or color.'' Further, in accordance with section 417(c)(1) of
the Domestic Volunteer Service Act, as amended (42 U.S.C. 5057 (c)(1))
the nondiscrimination policies and authorities set forth in section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.) and the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), are also applicable
to the selection, placement, service and termination of Peace Corps
Volunteers.
Sec. 305.2 Eligibility.
In addition to those skills, personal attributes and aptitudes
required for available Volunteer assignments, the following are the
basic requirements that an applicant must satisfy in order to receive an
invitation to train for Peace Corps Volunteer service.
(a) Citizenship. The applicant must be a citizen of the United
States or have made arrangements satisfactory to the Office of
Marketing, Recruitment, Placement and Staging (MRPS) and the Office of
General Counsel (D/GC) to be naturalized prior to taking the oath
prescribed for enrollment as a Peace Corps Volunteer. (See section 5[a]
of the Peace Corps Act, as amended).
(b) Age. The applicant must be at least 18 years old.
(c) Medical status. The applicant must, with reasonable
accommodation, have the physical and mental capacity required of a
Volunteer to perform the essential functions of the Peace Corps
Volunteer assignment for which he or she is otherwise eligible, and be
able to complete an agreed upon tour of service, ordinarily two years,
without unreasonable disruption due to health problems. In determining
what is a reasonable accommodation, the Peace Corps may take into
account the adequacy of local medical facilities. In determining whether
an accommodation would impose an undue hardship on the operation of the
Peace Corps, factors to be considered include: (1) The overall size of
the Peace Corps program with respect to the number of employees and/or
Volunteers, size of budget, and size and composition of staff at post of
assignment, (2) the nature and cost of the accommodation, and (3) the
capacity of the host country agency to which the applicant would be
assigned to provide any special accommodation necessary for the
applicant to carry out the assignment.
(d) Legal status. The applicant must not be on parole or probation
to any court or have any court established or
[[Page 21]]
acknowledged financial or other legal obligation which, in the opinion
of D/GC and MRPS, cannot be satisfied or postponed during the period of
Peace Corps service.
(e) Intelligence background. In accordance with longstanding Peace
Corps policy, prior employment by any agency of the United States
Government, civilian or military, or division of such an agency, whose
exclusive or principle function is the performance of intelligence
activities; or engaging in intelligence activities or related work may
disqualify a person from eligibility for Peace Corps service. See
section 611 of the Peace Corps Manual.
(f) Marital status. (1) Ordinarily, if an applicant is married or
intends to marry prior to Peace Corps service, both husband and wife
must apply and qualify for assignment at the same location. Exceptions
to this rule will be considered by the Office of Volunteer Placement
(MRPS/P) under the following conditions:
(2)(i) Unaccompanied married applicant. In order to qualify for
consideration for Peace Corps service, a married applicant whose spouse
does not wish to accompany him/her overseas must provide the Office of
Placement (MRPS/P) with a notarized letter from the spouse acknowledging
that he or she is aware of the applicant spouse's intention to serve as
a Peace Corps Volunteer for two years or more and that any financial and
legal obligations of the applicant to his or her spouse can be met
during the period of Peace Corps service. In determining eligibility in
such cases, MRPS/P will also consider whether the service of one spouse
without the accompaniment of the other can reasonably be anticipated to
disrupt the applicant spouse's service overseas.
(ii) In addition to satisfying the above requirements, a married
applicant who is legally, or in fact, separated from his or her spouse,
must provide MRPS/P with copies of any agreements or other documentation
setting forth any legal and financial responsibilities which the parties
have to one another during any period of separation.
(3) Divorced applicants. Applicants who have been divorced must
provide MRPS/P with copies of all legal documents related to the
divorce.
(g) Dependents. Peace Corps has authority to provide benefits and
allowances for the dependent children of Peace Corps Volunteers who are
under the age of 18. However, applicants with dependent children under
the age of 18 will not be considered eligible for Peace Corps service
unless MRPS/P determines that the skills of the applicants are essential
to meet the requirements of a Volunteer project, and that qualified
applicants without minor dependents are not available to fill the
assignment.
(1) Procedures for placing volunteers with children. The placement
of any couple with dependent children must have the concurrence of the
appropriate Country and Regional Director.
(2) If the applicant has any dependents who will not accompany him
or her overseas, the applicant must satisfy MRPS/P and the General
Counsel that adequate arrangements have been made for the care and
support of the dependent during any period of training and Peace Corps
service; that such service will not adversely affect the relationship
between the applicant and dependent in such a way as to disrupt his or
her service; and that he or she is not using Peace Corps service to
escape responsibility for the welfare of any dependents under the age of
18.
(3) Married couples with more than two children or with children who
are below two years of age are not eligible for Peace Corps service
except in extraordinary circumstances as approved by the Director of the
Peace Corps or designee.
(h) Military service. Applicants with military or national guard
obligation must provide MRPS/P with a written statement from their
commanding officer that their presence will not be required by their
military unit for the duration of their Peace Corps service, except in
case of national emergency.
(i) Failure to disclose requested information. Failure to disclose,
and/or the misrepresentation of material information requested by the
Peace Corps regarding any of the above described standards of
eligibility may be grounds for disqualification or separation from
[[Page 22]]
Peace Corps Volunteer service. (See section 284 of the Peace Corps
Manual.)
Sec. 305.3 Background investigations.
Section 22 of the Peace Corps Act states that to ensure enrollment
of a Volunteer is consistent with the national interest, no applicant is
eligible for Peace Corps Volunteer service without a background
investigation. The Peace Corps requires that all applicants accepted for
training have as a minimum a National Agency Check. Information revealed
by the investigation may be grounds for disqualification from Peace
Corps service.
Sec. 305.4 Selection standards.
To qualify for selection for overseas service as a Peace Corps
Volunteer, applicants must demonstrate that they possess the following
personal attributes:
(a) Motivation. A sincere desire to carry out the goals of Peace
Corps service, and a commitment to serve a full term as a Volunteer.
(b) Productive competence. The intelligence and educational
background to meet the needs of the individual's assignment.
(c) Emotional maturity/adaptability. The maturity, flexibility, and
self-sufficiency to adapt successfully to life in another culture, and
to interact and communicate with other people regardless of cultural,
social, and economic differences.
(d) Skills. By the end of training, in addition to the attributes
mentioned above, a Trainee must demonstrate competence in the following
areas:
(1) Language. The ability to communicate in the language of the
country of service with the fluency required to meet the needs of the
overseas assignment.
(2) Technical competence. Proficiency in the technical skills needed
to carry out the assignment.
(3) Knowledge. Adequate knowledge of the culture and history of the
country of assignment to ensure a successful adjustment to, and
acceptance by, the host country society. The Trainee must also have an
awareness of the history and government of the United States which
qualifies the individual to represent the United States abroad.
(e) Failure to meet standards. Failure to meet any of the selection
standards by the completion of training may be grounds for deselection
and disqualification from Peace Corps service.
Sec. 305.5 Procedures.
Procedures for filing, investigating, and determining allegations of
discrimination on the basis of race, color, national origin, religion,
age, sex, handicap or political affiliation in the application of any
provision of this part are contained in MS 293 (45 CFR part 1225).
PART 306_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents
Cross Reference: ACTION regulations concerning the volunteer
discrimination complaint procedure, appearing in 45 CFR part 1225, are
applicable to Peace Corps volunteers. Part 1225 appears at 46 FR 1609,
Jan. 6, 1981.
PART 308_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents
Sec.
308.1 Purpose.
308.2 Policy.
308.3 Definitions.
308.4 Disclosure of records.
308.5 New uses of information.
308.6 Reports regarding changes in systems.
308.7 Use of social security account number in records systems.
[Reserved]
308.8 Rules of conduct.
308.9 Records systems--management and control.
308.10 Security of records systems--manual and automated.
308.11 Accounting for disclosure of records.
308.12 Contents of records systems.
308.13 Access to records.
308.14 Specific exemptions.
308.15 Identification of requesters.
308.16 Amendment of records and appeals with respect thereto.
308.17 Denial of access and appeals with respect thereto.
308.18 Fees.
Authority: 5 U.S.C. 552a.
Source: 50 FR 1844, Jan. 14, 1985, unless otherwise noted.
[[Page 23]]
Sec. 308.1 Purpose.
The purpose of this part is to set forth the basic policies of the
Peace Corps governing the maintenance of systems of records containing
personal information as defined in the Privacy Act of 1974 (5 U.S.C.
552a). Records included in this part are those described in the
aforesaid Act and maintained by the Peace Corps and/or any component
thereof.
Sec. 308.2 Policy.
It is the policy of the Peace Corps to protect, preserve and defend
the right of privacy of any individual as to whom the agency maintains
personal information in any records system and to provide appropriate
and complete access to such records including adequate opportunity to
correct any errors in said records. It is further the policy of the
agency to maintain its records in such a fashion that the information
contained therein is and remains material and relevant to the purposes
for which it is collected in order to maintain its records with fairness
to the individuals who are the subject of such records.
Sec. 308.3 Definitions.
(a) Record means any document, collection, or grouping of
information about an individual maintained by the agency, including but
not limited to information regarding education, financial transactions,
medical history, criminal or employment history, or any other personal
information which contains the name or personal identification number,
symbol, photograph, or other identifying particular assigned to such
individual, such as a finger or voiceprint.
(b) System of Records means a group of any records under the control
of the agency from which information is retrieved by use of the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(c) Routine Use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.
(d) The term agency means the Peace Corps or any component thereof.
(e) The term individual means any citizen of the United States or an
alien lawfully admitted to permanent residence.
(f) The term maintain includes the maintenance, collection, use or
dissemination of any record.
(g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as
amended from time to time.
Sec. 308.4 Disclosure of records.
The agency will not disclose any personal information from systems
of records it maintains to any individual other than the individual to
whom the record pertains, or to another agency, without the express
written consent of the individual to whom the record pertains, or his or
her agent or attorney, except in the following instances:
(a) To officers or employees of the Peace Corps having a need for
such record in the official performance of their duties.
(b) When required under the provisions of the Freedom of Information
Act (5 U.S.C. 552).
(c) For routine uses as published in the Federal Register.
(d) To the Bureau of the Census for uses pursuant to title 13.
(e) To an individual or agency having a proper need for such record
for statistical research provided that such record is transmitted in a
form which is not individually identifiable and that an appropriate
written statement is obtained from the person to whom the record is
transmitted stating the purpose for the request and a certification
under oath that the records will be used only for statistical purposes.
(f) To the National Archives of the United States as a record of
historical value under rules and regulations of the Archives or to the
Administrator of General Services or his designee to determine if it has
such value.
(g) To an agency or instrumentality of any governmental jurisdiction
within the control of the United States for civil or criminal law
enforcement activities, if the activity is authorized by law, and the
head of any such agency or instrumentality has made a written request
for such records specifying the particular portion desired and the law
enforcement activity for which the
[[Page 24]]
record is sought. Such a record may also be disclosed by the agency to
the law enforcement agency on its own initiative in situations in which
criminal conduct is suspected: Provided, That such disclosure has been
established as a routine use or in situations in which the misconduct is
directly related to the purpose for which the record is maintained.
(h) In emergency situations upon a showing of compelling
circumstances affecting the health or safety of any individual provided
that after such disclosure, notification of such disclosure must be
promptly sent to the last known address of the individual to whom the
record pertains.
(i) To either House of Congress or to a subcommittee or committee
(joint or of either house) to the extent the subject matter falls within
their jurisdiction.
(j) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
(k) Pursuant to an order by the presiding judge of a court of
competent jurisdiction. If any record is disclosed under such compulsory
legal process and subsequently made public by the court which issued it,
the agency must make a reasonable effort to notify the individual to
whom the record pertains of such disclosure.
(l) To consumer reporting agencies as defined in 31 U.S.C.
3701(a)(3) in accordance with 31 U.S.C. 3711, and under contracts for
collection services as authorized in 31 U.S.C. 3718.
Sec. 308.5 New uses of information.
The agency shall publish in the Federal Register a notice of its
intention to establish a new or revised routine use of any system of
records maintained by it with an opportunity for public comments on such
use. Such notice shall contain the following:
(a) The name of the system of records for which the new or revised
routine use is to be established.
(b) The authority for maintaining the system of records.
(c) The categories of records maintained in the system.
(d) The purpose for which the record is to be maintained.
(e) The proposed routine use(s).
(f) The purpose of the routine use(s).
(g) The categories of recipients of such use.
In the event of any request for an addition to the routine uses of the
systems which the agency maintains, such request may be sent to the
following officer: Director, Office of Administrative Services, Peace
Corps, 806 Connecticut Avenue, NW., Washington, DC 20526.
Sec. 308.6 Reports regarding changes in systems.
The agency shall provide to Congress and the Office of Management
and Budget advance notice of any proposal to establish or alter any
system of records as defined herein. This report will be submitted in
accord with guidelines provided by the Office of Management and Budget.
Sec. 308.7 Use of social security account number in records systems.
[Reserved]
Sec. 308.8 Rules of conduct.
(a) The head of the agency shall assure that all persons involved in
the design, development, operation or maintenance of any systems of
records as defined herein are informed of all requirements necessary to
protect the privacy of individuals who are the subject of such records.
All employees shall be informed of all implications of the Act in this
area including the criminal penalties provided under the Act, and the
fact the agency may be subject to civil suit for failure to comply with
the provisions of the Privacy Act and these regulations.
(b) The head of the agency shall also ensure that all personnel
having access to records receive adequate training in the protection of
the security of personal records and that adequate and proper storage is
provided for all such records with sufficient security to assure the
privacy of such records.
Sec. 308.9 Records systems--management and control.
(a) The Director, Office of Administrative Services, shall have
overall control and supervision of the security
[[Page 25]]
of all records keeping systems and shall be responsible for monitoring
the security standards set forth in these regulations.
(b) A designated official (System Manager) shall be named who shall
have management responsibility for each record system maintained by the
agency and who shall be responsible for providing protection and
accountability for such records at all times and for insuring that such
records are secured in appropriate containers wherever not in use or in
the direct control of authorized personnel.
Sec. 308.10 Security of records systems--manual and automated.
The head of the agency has the responsibility of maintaining
adequate technical, physical, and security safeguards to prevent
unauthorized disclosure or destruction of manual and automatic record
systems. These security safeguards shall apply to all systems in which
identifiable personal data are processed or maintained including all
reports and outputs from such systems which contain identifiable
personal information. Such safeguards must be sufficient to prevent
negligent, accidental, or unintentional disclosure, modification or
destruction of any personal records or data and must furthermore
minimize the extent technicians or knowledgeable persons could
improperly obtain access to modify or destroy such records or data and
shall further insure against such casual entry by unskilled persons
without official reasons for access to such records or data.
(a) Manual systems. (1) Records contained in records systems as
defined herein may be used, held or stored only where facilities are
adequate to prevent unauthorized access by persons within or without the
agency.
(2) All records systems when not under the personal control of the
employees authorized to use same must be stored in an appropriate metal
filing cabinet. Where appropriate, such cabinet shall have a three
position dial-type combination lock, and/or be equipped with a steel
lock bar secured by a GSA approved changeable combination padlock or in
some such other securely locked cabinet as may be approved by GSA for
the storage of such records. Certain systems are not of such
confidential nature that their disclosure would harm an individual who
is the subject of such record. Records in this category shall be
maintained in steel cabinets without the necessity of combination locks.
(3) Access to and use of systems of records shall be permitted only
to persons whose official duties require such access within the agency,
for routine use as defined in Sec. 308.4 and in the Peace Corps'
published systems of records notices, or for such other uses as may be
provided herein.
(4) Other than for access within the agency to persons needing such
records in the performance of their official duties or routine uses as
defined herein and in the Peace Corps' systems of records notices or
such other uses as provided herein, access to records within systems of
records shall be permitted only to the individual to whom the record
pertains or upon his or her written request to a designated personal
representative.
(5) Access to areas where records systems are stored will be limited
to those persons whose official duties require work in such areas and
proper accounting of removal of any records from storage areas shall be
maintained at all times in the form directed by the Director,
Administrative Services.
(6) The agency shall assure that all persons whose official duties
require access to and use of records contained in records systems are
adequately trained to protect the security and privacy of such records.
(7) The disposal and destruction of records within records systems
shall be in accord with rules promulgated by the General Services
Administration.
(b) Automated systems. (1) Identifiable personal information may be
processed, stored or maintained by automatic data systems only where
facilities or conditions are adequate to prevent unauthorized access to
such systems in any form. Whenever such data contained in punch cards,
magnetic tapes or discs are not under the personal control of an
authorized person such information must be stored in a metal filing
cabinet having a built-in three position
[[Page 26]]
combination lock, a metal filing cabinet equipped with a steel lock, a
metal filing cabinet equipped with a steel lock bar secured with a
General Services Administration (GSA) approved combination padlock, or
in adequate containers or in a secured room or in such other facility
having greater safeguards than those provided for herein.
(2) Access to and use of identifiable personal data associated with
automated data systems shall be limited to those persons whose official
duties require such access. Proper control of personal data in any form
associated with automated data systems shall be maintained at all times
including maintenance of accountability records showing disposition of
input and output documents.
(3) All persons whose official duties require access to processing
and maintenance of identifiable personal data and automated systems
shall be adequately trained in the security and privacy of personal
data.
(4) The disposal and disposition of identifiable personal data and
automated systems shall be carried on by shredding, burning or in the
case of tapes of discs, degaussing, in accord with any regulations now
or hereafter proposed by the GSA or other appropriate authority.
Sec. 308.11 Accounting for disclosure of records.
Each office maintaining a system of records shall keep a written
account of routine disclosures (see paragraphs (a) through (e) of this
section) for all records within such system in the form prescribed by
the Director, Office of Administrative Services. Disclosure made to
employees of the agency in the normal course of their official duties or
pursuant to the provisions of the Freedom of Information Act need not be
accounted for. Such written account shall contain the following:
(a) The date, nature, and purpose of each disclosure of a record to
any person or to another agency.
(b) The name and address of the person or agency to whom the
disclosure was made.
(c) Sufficient information to permit the construction of a listing
of all disclosures at appropriate periodic intervals.
(d) The justification or basis upon which any release was made
including any written documentation required when records are released
for statistical or law enforcement purposes under the provisions of
subsection (b) of the Act.
(e) For the purpose of this part, the system of accounting for
disclosure is not a system of records under the definitions hereof and
no accounting need be maintained for the disclosure of accounting of
disclosures.
Sec. 308.12 Contents of records systems.
(a) The agency shall maintain in any records contained in any
records system hereunder only such information about an individual as is
accurate, relevant, and necessary to accomplish the purpose for which
the agency acquired the information as authorized by statute or
executive order.
(b) In situations in which the information may result in adverse
determinations about such individual's rights, benefits and privileges
under any Federal program, all information placed in records systems
shall, to the greatest extent practicable, be collected from the
individual to whom the record pertains.
(c) Each form or other document which an individual is expected to
complete in order to provide information for any records system shall
have appended thereto, or in the body of the document:
(1) An indication of the authority authorizing the solicitation of
the information and whether the provision of the information is
mandatory or voluntary.
(2) The purpose or purposes for which the information is intended to
be used.
(3) Routine uses which may be made of the information and published
pursuant to Sec. 308.7 of this regulation.
(4) The effect on the individual, if any, of not providing all or
part of the required or requested information.
(d) Records maintained in any system of records used by the agency
to make any determinatioin about any individual shall be maintained with
such accuracy, relevancy, timeliness, and
[[Page 27]]
completeness as is reasonably necessary to assure fairness to the
individual in the making of any determination about such individual:
Provided, however, That the agency shall not be required to update or
keep current retired records.
(e) Before disseminating any record about an individual to any
person other than an agency as defined in 5 U.S.C. 552(e) or pursuant to
the provsions of the Freedom of Information Act (5 U.S.C. 552), the
agency shall make reasonable efforts to assure that such records are
accurate, complete, timely and relevant for agency purposes.
(f) Under no circumstances shall the agency maintain any record
about an individual with respect to or describing how such individual
exercises rights guaranteed by the first amendment of the Constitution
of the United States unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to
and within the scope of an authorized law enforcement activity.
(g) In the event any record is disclosed as a result of the order of
a presiding judge of a court of competent jurisdiction, the agency shall
make reasonable efforts to notify the individual whose record was so
disclosed after the process becomes a matter of public record.
Sec. 308.13 Access to records.
(a) The Director, Administrative Services, shall keep a current list
of systems of records maintained by the agency and published in
accordance with the provisions of these regulations.
(b) Individuals requesting access to any record the agency maintains
about him or her in a system of records shall be provided access to such
records. Such requests shall be submitted in writing by mail, or in
person during regular business hours, to the System Managers identified
in the specific system notices. Systems maintained at overseas and
dometic field offices may be addressed to the Country Director or
Regional Service Center Manager. If assistance is needed, the Director,
Office of Administrative Services, will provide agency addresses.
(c) Requests for records from more than one system of records shall
be directed to the Director, Office of Administrative Services, Peace
Crops, 806 Connecticut Avenue, NW., Washington, DC 20526.
(d) Requests for access to or copies of records should contain, at a
minimum, identifying information needed to locate any given record and a
brief description of the item or items of information required. If the
individual wishes access to specific documents the request should
identify or describe as nearly as possible such documents.
(e) A record may be disclosed to a representative of the person to
whom a record relates who is authorized in writing to have access to the
record by the person to whom it relates.
(f) A request made in person will be promptly complied with if the
records sought are in the immediate custody of the Peace Corps. Mailed
or personal request for documents in storage which must be complied from
more than one location, or which are otherwise not immediately
available, will be acknowledge within ten working days, and the records
requested will be provided as promptly thereafter as possible.
(g) Medical or psychological records shall be disclosed to an
individual unless in the judgment of the agency, access to such records
might have an adverse effect upon such individual. When such
determination has been made, the agency may require that the information
be disclosed only to a physician chosen by the requesting individual.
Such physician shall have full authority to disclose all or any portion
of such record to the requesting individual in the exercise of his or
her professional judgment.
Sec. 308.14 Specific exemptions.
Records or portions of records in certain record systems specified
in paragraphs (a) through (c) of this section shall be exempt from
disclosure: Provided, however, That no such exemption shall apply to the
provisions of Sec. 308.12(a) (maintaining records with accuracy,
completeness, etc. as reasonably necessary for agency purposes); Sec.
308.12(b) (collecting information directly from the individual to whom
it
[[Page 28]]
pertains); Sec. 308.12(c) (informing individuals asked to supply
information of the purposes for which it is collected and whether it is
mandatory); Sec. 308.12(g) (notifying the subjects of records disclosed
under compulsory court process); Sec. 308.16(d)(3) (informing prior
recipient of corrected or disputed records); Sec. 308.16(g) (civil
remedies). With the above exceptions the following material shall be
exempt from disclosure to the extent indicated:
(a) Material in any system of records considered classified and
exempt from disclosure under provisions of section 552(b)(1) of the
Freedom of Information Act. Agency systems of records now containing
such material are: Legal Files--Staff, Volunteers and Applicants;
Security Records Peace Corps Staff/Volunteers and ACTION staff.
(1) Authority: 5 U.S.C. 552a (k)(1)
(2) Reasons: To protect information classified in the interest of
national defense or foreign policy.
(b) Investigatory material compiled for the purposes of law
enforcement: Provided, however, That if any individual is denied any
right, privilege, or benefit that he or she would otherwise be entitled
to by Federal law, or for which he or she would otherwise be eligible,
as a result of the maintenance of such material, such material shall be
provided to such individual except to the extent necessary to protect
the identity of a source who furnished information to the government
under an express promise that his or her identity would be held in
confidence, or prior to the effective date of the Privacy Act of 1974,
under an implied promise of such confidentiality of the identity of such
source. Agency systems of records containing such investigatory material
are: Discrimination Complaint Files; Employee Occupational Injury and
Illness Reports; Legal Files--Staff, Volunteers and Applicants; Security
Records--Peace Corps Staff/Volunteers and ACTION Staff.
(1) Authority: 5 U.S.C. 552a(k)(2)
(2) Reasons: To protect the identity of sources to whom proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
(c) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualification for service as an
employee or volunteer or for the obtaining of a Federal contract or for
access to classified information: Provided, however, That such material
shall be disclosed to the extent possible without revealing the identity
of a source who furnished information to the government under an express
promise of the confidentiality of his or her identity or, prior to the
effective date of the Privacy Act of 1974, under an implied promise of
such confidentiality of identity. Agency systems of records containing
such material are: Contractors and Consultant Files; Discrimination
Complaint Files; Legal Files--Staff, Volunteers and Applicants; Personal
Service Contract Records--Peace Corps Staff/Volunteers and ACTION Staff;
Staff Applicant and Personnel Records; Talent Bank; Volunteer Applicant
and Service Record Systems.
(1) Authority: 5 U.S.C. 552a(k)(5)
(2) Reasons: To ensure the frankness of information used to
determine whether Peace Corps Volunteers applicants and Peace Corps
Staff applicants are qualified for service with the agency.
(d) Records in the Office of Inspector General Investigative Files
and Records system of records are exempt from certain provisions to the
extent provided hereinafter.
(1) To the extent that the system of records pertains to the
enforcement of criminal laws, the Office of Inspector General
Investigative Files and Records system of records is exempt from all
sections of the Privacy Act (5 U.S.C. 552a) except the following
sections: (b) relating to conditions of disclosure; (c)(1) and (2)
relating to keeping and maintaining a disclosure accounting; (e)(4)(A)
through (F) relating to publishing a system notice setting the name,
location, categories of individuals and records, routine uses, and
policies regarding storage, retrievability, access controls, retention
and disposal of the records; (e)(6), (7), (9), (10), and (11) relating
to dissemination and maintenance of records
[[Page 29]]
and (i) relating to criminal penalties. This system of records is also
exempt from the provisions of Sec. 308.11 through Sec. 308.17 to the
extent that the provisions of these sections conflict with this
paragraph.
(i) Authority: 5 U.S.C. 552a(j)(2).
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigations, investigators, and witnesses.
(C) To protect the identity of Federal employees who furnish a
complaint or information to OIG, consistent with section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(D) To protect the confidentiality of non-Federal employee sources
of information.
(E) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement information systems.
(F) To prevent disclosure of law enforcement techniques and
procedures.
(G) To avoid endangering the life or physical safety of confidential
sources.
(2) To the extent that there may exist within this system of records
investigative files compiled for law enforcement purposes, other than
material within the scope of subsection (j)(2) of the Privacy Act, the
OIG Investigative Files and Records system of records is exempt from the
following sections of the Privacy Act: (c)(3) relating to access to the
disclosure accounting; (d) relating to access to records; (e)(1)
relating to the type of information maintained in the records; (e)(4)
(G), (H), and (I) relating to publishing the system notice information
as to agency procedures for access and amendment, and information as to
the categories of sources or records; and (f) relating to developing
agency rules for gaining access and making corrections. Provided,
however, That if any individual is denied any right, privilege, or
benefit that they would otherwise be entitled by Federal law, or for
which they would otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to such individual
except to the extent that the disclosure of such material would reveal
the identity of a source who furnished information to the Government
under an express promise that the identity of the source would be held
in confidence, or, prior to January 1, 1975, under an implied promise
that the identity of the source would be held in confidence. This system
of records is also exempt from the provisions of Sec. 308.11 through
Sec. 308.17 to the extent that the provisions of these sections
conflict with this paragraph.
(i) Authority: 5 U.S.C. 552a(k)(2)
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To protect investigatory material compiled for law enforcement
purposes.
(C) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigation, law enforcement personnel, and sources of information.
(D) To fulfill commitments made to protect the confidentiality of
sources.
(E) To protect the identity of Federal employees who furnish a
complaint or information to the OIG, consistent with Section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(F) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement systems.
(G) [Reserved]
(H) To prevent disclosure of law enforcement techniques and
procedures.
(I) To avoid endangering the life or physical safety of confidential
sources and law enforcement personnel.
[50 FR 1844, Jan. 14, 1985, as amended at 58 FR 39657, July 26, 1993]
Sec. 308.15 Identification of requesters.
The agency shall require reasonable identification of all
individuals who request access to records to assure that records are not
disclosed to persons not entitled to such access.
(a) In the event an individual requests disclosure in person, such
individual shall be required to show an identification card such as a
driver's license, etc., containing a photo and a
[[Page 30]]
sample signature of such individual. Such individual may also be
required to sign a statement under oath as to his or her identity
acknowledging that he or she is aware of the penalties for improper
disclosure under the provisions of the Privacy Act of 1974.
(b) In the event that disclosure is requested by mail, the agency
may request such information as may be necessary to reasonably assure
that the individual making such request is properly identified. In
certain cases, the agency may require that a mail request be notarized
with an indication that the notary received an acknowledgment of
identity from the individual making such request.
(c) In the event an individual is unable to provide suitable
documentation or identification, the agency may require a signed
notarized statement asserting the identity of the individual and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000.
(d) In the event a requester wishes to be accompanied by another
person while reviewing his or her records, the agency may require a
written statement authorizing discussion of his or her records in the
presence of the accompanying representative or other persons.
Sec. 308.16 Amendment of records and appeals with respect thereto.
(a) In the event an individual desires to request an amendment of
his or her record, he or she may do so by submitting such written
request to the Director, Administrative Services, Peace Corps, 806
Connecticut Avenue, NW., Washington, DC 20526. The Director,
Administrative Services, shall provide assistance in preparing any
amendment upon request and a written acknowledgment of receipt of such
request within 10 working days after the receipt thereof from the
individual who requested the amendment. Such acknowledgment may, if
necessary, request any additional information needed to make a
determination with respect to such request. If the agency decides to
comply with the request within the 10 day period, no written
acknowledgment is necessary: Provided, however, That a certification of
the change shall be provided to such individual within such period.
(b) Promptly after acknowledgment of the receipt of a request for an
amendment the agency shall take one of the following actions:
(1) Make any corrections of any portion of the record which the
individual believes is not accurate, relevant, timely or complete.
(2) Inform the individual of its refusal to amend the record in
accord with the request together with the reason for such refusal and
the procedures established for requesting review of such refusal by the
head of the agency or his or her designee. Such notice shall include the
name and business address of the reviewing official.
(3) Refer the request to the agency that has control of and
maintains the record in those instances where the record requested
remains the property of the controlling agency and not of the Peace
Corps.
(c) In reviewing a request to amend the record the agency shall
assess the accuracy, relevance, timeliness and completeness of the
record with due and appropriate regard for fairness to the individual
about whom the record is maintained. In making such determination, the
agency shall consult criteria for determining record quality published
in pertinent chapters of the Federal Personnel Manual and to the extent
possible shall accord therewith.
(d) In the event the agency agrees with the individual's request to
amend such record it shall:
(1) Advise the individual in writing,
(2) Correct the record accordingly, and
(3) Advise all previous recipients of a record which was corrected
of the correction and its substance.
(e) In the event the agency, after an initial review of the request
to amend a record, disagrees with all or a portion of it, the agency
shall:
(1) Advise the individual of its refusal and the reasons therefore,
(2) Inform the individual that he or she may request further review
in accord with the provisions of these regulations, and
[[Page 31]]
(3) Specify The name and address of the person to whom the request
should be directed.
(f) In the event an individual requester disagrees with the initial
agency determination, he or she may appeal such determination to the
Director of the Peace Corps or his or her designee. Such request for
review must be made within 30 days after receipt by the requester of the
initial refusal to amend.
(g) If after review the Director or designee refuses to amend the
record as requested he or she shall advise the individual requester of
such refusal and the reasons for same; of his or her right to file a
concise statement in the record of the reasons for disagreeing with the
decision of the agency; of the procedures for filing a statement of
disagreement and of the fact that such statement so filed will be made
available to anyone to whom the record is subsequently disclosed
together with a brief statement of the agency summarizing its reasons
for refusal, if the agency decides to place such brief statement in the
record. The agency shall have the authority to limit the length of any
statement to be filed, such limit to depend upon the record involved.
The agency shall also inform such individual that prior recipients of
the disputed record will be provided a copy of both statements of the
dispute to the extent that the accounting of disclosures has been
maintained and of the individual's right to seek judicial review of the
agency's refusal to amend the record.
(h) If after review the official determines that the record should
be amended in accordance with the individual's request, the agency shall
proceed as provided above in the event a request is granted upon initial
demand.
(i) Final agency determination of an individual's request for a
review shall be concluded with 30 working days from the date of receipt
of the review request: Provided, however, That the Director or designee
may determine that fair and equitable review cannot be made within that
time. If such circumstances occur, the individual shall be notified in
writing of the additional time required and of the approximate date on
which determination of the review is expected to be completed.
Sec. 308.17 Denial of access and appeals with respect thereto.
In the event that the agency finds it necessary to deny any
individual access to a record about such individual pursuant to
provisions of the Privacy Act or of these regulations, a response to the
original request shall be made in writing within ten working days after
the date of such initial request. The denial shall specify the reasons
for such refusal or denial and advise the individual of the reasons
therefore, and of his or her right to an appeal within the agency and/or
judicial review under the provisions of the Act.
(a) In the event an individual desires to appeal any denial of
access, he or she may do so in writing by addressing such appeal to the
attention of the Director, Peace Corps, or designee identified in such
denial. Such appeal should be addressed to Director, Peace Corps, c/o
Office of Administrative Services, Room P-314, 806 Connecticut Avenue,
NW., Washington, DC 20526.
(b) The Director, or designee, shall review a request from a denial
of access and shall make a determination with respect to such appeal
within 30 days after receipt thereof. Notice of such determination shall
be provided to the individual making the request in writing. If such
appeal is denied in whole or in part, such notice shall include
notification of the right of the person making such request to have
judicial review of the denial as provided in the Act.
Sec. 308.18 Fees.
No fees shall be charged for search time or for any other time
expended by the agency to produce a record. Copies of records may be
charged for at the rate of 10 cents per page provided that one copy of
any record shall be provided free of charge.
PART 309_CLAIMS COLLECTION--Table of Contents
Subpart A_General Provisions
Sec.
309.1 General purpose.
309.2 Scope.
309.3 Definitions.
309.4 Interest, penalties, and administrative costs.
309.5 Designation.
[[Page 32]]
Subpart B_Salary Offset
309.6 Purpose.
309.7 Scope.
309.8 Applicability of regulations.
309.9 Waiver requests and claims to the General Accounting Office.
309.10 Notice requirements before offset.
309.11 Review.
309.12 Certification.
309.13 Voluntary repayment agreements as an alternative to salary
offset.
309.14 Special review.
309.15 Notice of salary offset.
309.16 Procedures for salary offset.
309.17 Coordinating salary offset with other agencies.
309.18 Interest, penalties and administrative costs.
309.19 Refunds.
309.20 Request for the services of a hearing official from the creditor
agency.
309.21 Non-waiver of rights by payments.
Subpart C_Tax Refund Offset
309.22 Applicability and scope.
309.23 Past-due legally enforceable debt.
309.24 Definitions.
309.25 Peace Corps' participation in the IRS tax refund offset program.
309.26 Procedures.
309.27 Referral of debts for offset.
309.28 Notice requirements before offset.
Subpart D_Administrative Offset
309.29 Applicability and scope.
309.30 Definitions.
309.31 General.
309.32 Demand for payment--notice.
309.33 Debtor's failure to respond.
309.34 Agency review.
309.35 Hearing.
309.36 Written agreement for repayment.
309.37 Administrative offset procedures.
309.38 Civil and Foreign Service Retirement Fund.
309.39 Jeopardy procedure.
Subpart E_Use of Consumer Reporting Agencies and Referrals to Collection
Agencies
309.40 Use of consumer reporting agencies.
309.41 Referrals to collection agencies.
Subpart F_Compromise, Suspension or Termination and Referral of Claims
309.42 Compromise.
309.43 Suspending or terminating collection.
309.44 Referral of claims.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31
U.S.C. 3720A; 4 CFR parts 101-105; 5 CFR part 550; 26 CFR 301.6402-6T.
Source: 58 FR 2978, Jan. 7, 1993, unless otherwise noted.
Subpart A_General Provisions
Sec. 309.1 General purpose.
This part prescribes the procedures to be used by the Peace Corps of
the United States (Peace Corps) in the collection of claims owed to
Peace Corps and to the United States.
Sec. 309.2 Scope.
(a) Applicability of Federal Claims Collection Standards (FCCS).
Except as set forth in this part or otherwise provided by law, Peace
Corps will conduct administrative actions to collect claims (including
offset, compromise, suspension, termination, disclosure and referral) in
accordance with the Federal Claims Collection Standards of the General
Accounting Office and the Department of Justice, 4 CFR parts 101 through
105.
(b) This part is not applicable to:
(1) Claims against any foreign country or any political subdivision
thereof, or any public international organization.
(2) Claims where the Peace Corps Director (or designee) determines
that the achievement of the purposes of the Peace Corps Act, as amended,
22 U.S.C. 2501 et seq., or any other provision of law administered by
the Peace Corps require a different course of action.
Sec. 309.3 Definitions.
As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
(a) Agency means:
(1) An Executive Agency as defined by section 105 of title 5, United
States Code, including the U.S. Postal Service and the U.S. Postal Rate
Commission;
(2) A military department as defined by section 102 of title 5,
United States Code.
(3) An agency or court of the judicial branch including a court as
defined in section 610 of title 28, United States Code, the District
Court for the Northern Mariana Islands and the Judicial Panel on
Multidistrict Litigation;
[[Page 33]]
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Certification means a written debt claim form received from a
creditor agency which requests the paying agency to offset the salary of
an employee.
(c) Consumer reporting agency means a reporting agency as defined in
31 U.S.C. 3701(a)(3).
(d) Creditor agency means the agency to which the debt is owed.
(e) The term debt and claim refers to an amount of money or property
which has been determined by an appropriate agency official to be owed
to the United States from any person, organization or entity, except
another Federal agency. A debtor's liability arising from a particular
contract or transaction shall be considered a single claim for purposes
of monetary ceilings of the FCCS.
(f) Delinquent debt means any debt which has not been paid by the
date specified by the Government in writing or in an applicable
contractual agreement for payment or which has not been satisfied in
accordance with a repayment agreement.
(g) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or, in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. These
deductions are described in 5 CFR 581.105(b) through (f). These
deductions include, but are not limited to: Social Security
withholdings; Federal, State and local tax withholdings; retirement
contributions; and life insurance premiums.
(h) Employee means a current or former employee of the Peace Corps
or other agency, including a member of the Armed Forces or Reserve of
the Armed Forces of the United States.
(i) FCCS means the Federal Claims Collection Standards jointly
published by the Department of Justice and the General Accounting Office
at 4 CFR parts 101 through 105.
(j) Hearing official means an individual responsible for conducting
any hearing with respect to the existence or amount of a debt claimed,
and rendering a decision on the basis of such hearing. Except in the
case of an administrative law judge, a hearing official may not be under
the supervision or control of the Peace Corps when the Peace Corps is
the creditor agency.
(k) Paying agency means the agency which employs the individual and
authorizes the payment of his or her current pay. In some cases, the
Peace Corps may be both the creditor and the paying agency.
(l) Notice of intent to offset or notice of intent means a written
notice from a creditor agency to an employee which alleges that the
employee owes a debt to the creditor agency and apprising the employee
of certain administrative rights.
(m) Notice of salary offset means a written notice from the paying
agency to an employee after a certification has been issued by a
creditor agency, informing the employee that salary offset will begin at
the next officially established pay interval.
(n) Payroll office means the payroll office in the paying agency
which is primarily responsible for the payroll records and the
coordination of pay matters with the appropriate personnel office with
respect to an employee.
(o) Salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deduction at one or more officially established
pay intervals from the current pay account of an employee, without the
employee's consent.
(p) Salary Offset Coordination Officer means an official designated
by the Director who is responsible for coordinating debt collection
activities for the Peace Corps.
(q) Waiver means the cancellation, remission, forgiveness, or
nonrecovery of a debt or debt related charge as permitted or required by
law.
Sec. 309.4 Interest, penalties, and administrative costs.
(a) Except as otherwise provided by statute, contract or excluded in
accordance with FCCS, Peace Corps will assess:
[[Page 34]]
(1) Interest on unpaid claims in accordance with existing Treasury
rules and regulations, unless the agency determines that a higher rate
is necessary to protect the interests of the United States.
(2) Penalty charges at a rate of 6 percent a year on any portion of
a claim that is delinquent for more than 90 days.
(3) Administrative charges to cover the costs of processing and
handling the debt beyond the payment due date.
(b) Late payment charges shall be computed from the date of mailing
or hand delivery of the notice of the claim and interest requirements.
(c) When a debt is paid in partial or installment payments, amounts
received shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and then to
outstanding principal.
(d) Waiver. Peace Corps will consider waiver of interest, penalties
and/or administrative costs in accordance with the FCCS, 4 CFR
102.13(g).
Sec. 309.5 Designation.
The Chief Financial Officer and his or her delegates, or any person
discharging the functions presently vested in the Chief Financial
Officer, are designated to perform all the duties for which the Director
is responsible under the foregoing statutes and Joint Regulations:
Provided, however, That no compromise of a claim shall be effected or
collection action terminated except with the concurrence of the General
Counsel. No such concurrence shall be required with respect to the
compromise or termination of collection activity on any claim in which
the unpaid amount of the debt is $300 or less.
Subpart B_Salary Offset
Sec. 309.6 Purpose.
The purpose of the Debt Collection Act of 1982 (Pub. L. 97-365), is
to provide a comprehensive statutory approach to the collection of debts
due the United States Government. This subpart implements section 5
thereof which authorizes the collection of debts owed by Federal
employees to the Federal Government by means of salary offsets. No claim
may be collected by salary offset if the debt has been outstanding for
more than 10 years after the agency's right to collect the debt first
accrued, unless facts material to the Government's right to collect were
not known and could not reasonably have been known by the official or
officials who were charged with the responsibility for discovery and
collection of such debts.
Sec. 309.7 Scope.
(a) This subpart provides Peace Corps' procedures for the collection
by salary offset of a Federal employee's pay to satisfy certain past due
debts owed the United States Government.
(b) This subpart applies to collections by the Peace Corps from:
(1) Federal employees who owe debts to the Peace Corps; and
(2) Employees of the Peace Corps who owe debts to other agencies.
(c) This subpart does not apply to debts or claims arising under the
Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) This subpart does not apply to any adjustment to pay arising out
of an employee's election of coverage or a change in coverage under a
Federal benefits program requiring periodic deductions from pay, if the
amount to be recovered was accumulated over four pay periods or less.
(e) Nothing in this subpart precludes the compromise, suspension, or
termination of collection actions where appropriate under the standards
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.;
4 CFR parts 101 through 105).
Sec. 309.8 Applicability of regulations.
The provisions of this subpart are to be followed in instances
where:
(a) The Peace Corps is owed a debt by an individual currently
employed by another agency;
[[Page 35]]
(b) The Peace Corps is owed a debt by an individual who is a current
employee of the Peace Corps; or
(c) The Peace Corps currently employs an individual who owes a debt
to another Federal agency. Upon receipt of proper certification from the
creditor agency, the Peace Corps will offset the debtor-employee's
salary in accordance with these regulations.
Sec. 309.9 Waiver requests and claims to the General Accounting Office.
The provisions of this subpart do not preclude an employee from
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10
U.S.C. 2774, 32 U.S.C. 716, or in any way questioning the amount or
validity of a debt by submitting a subsequent claim to the General
Accounting Office in accordance with the procedures prescribed by the
General Accounting Office. This subpart also does not preclude an
employee from requesting a waiver pursuant to other statutory provisions
pertaining to the particular debts being collected.
Sec. 309.10 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency first provides the employee with written
notice that he/she owes a debt to the Federal Government at least 30
calendar days before salary offset is to be initiated. When Peace Corps
is the creditor agency this notice of intent to offset an employee's
salary shall be hand-delivered or sent by certified mail to the most
current address that is available. The written notice will state:
(1) That Peace Corps has reviewed the records relating to the claim
and has determined that a debt is owed, its origin and nature, and the
amount of the debt;
(2) The intention of Peace Corps to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
(3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(4) An explanation of the Peace Corps' policy concerning interest,
penalties and administrative costs, including a statement that such
assessments must be made unless excused in accordance with Sec.
309.4(d);
(5) The employee's right to inspect and copy all records of the
Peace Corps pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
(6) The right to a hearing conducted by a hearing official (an
administrative law judge, or alternatively, a hearing official not under
the supervision or control of the Peace Corps) with respect to the
existence and amount of the debt claimed, or the repayment schedule
(i.e., the percentage of disposable pay to be deducted each pay period),
so long as a petition is filed by the employee as prescribed in Sec.
309.11;
(7) If not previously provided, the opportunity (under terms
agreeable to the Peace Corps) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency
(4 CFR 102.2(e));
(8) The name, address and telephone number of an officer or employee
of the Peace Corps who may be contacted concerning procedures for
requesting a hearing;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a petition for hearing within 15
calendar days after delivery of the notice of intent to offset will stay
the commencement of collection proceedings;
(11) The name and address of the office to which the petition should
be sent;
(12) That the Peace Corps will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than 30 calendar days
from the date of delivery of the notice of debt, unless the employee
files a timely petition for a hearing;
(13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 calendar
days after the filing of the petition requesting the
[[Page 36]]
hearing, unless the employee requests and the hearing official grants a
delay in the proceedings;
(14) That any knowingly false or frivolous statements,
representations or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under chapter 75 of 5
U.S.C., 5 CFR 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, Sec. Sec. 3729-3731 of
title 31, United States Code, or any other applicable statutory
authority; and
(iii) Criminal penalties under 18 U.S.C. sections 286, 287, 1001,
and 1002 or any other applicable authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
(17) That proceedings with respect to such debt are governed by
section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).
(b) The Peace Corps is not required to comply with paragraph (a) of
this section for any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits
program requiring periodic deductions from pay if the amount to be
recovered was accumulated over four pay periods or less.
Sec. 309.11 Review.
(a) Request for review. Except as provided in paragraph (b) of this
section, an employee who desires a review concerning the existence or
amount of the debt or the proposed offset schedule must send a request
to the office designated in the notice of intent. See Sec.
309.10(a)(8). The request for review must be received by the designated
office not later than 15 calendar days after the date of delivery of the
notice as provided in Sec. 309.10(a). The request must be signed by the
employee and should identify and explain with reasonable specificity and
brevity the facts, evidence and witnesses which the employee believes
support his or her position. If the employee objects to the percentage
of disposable pay to be deducted from each check, the request should
state the objection and the reasons for it. The employee must also
specify whether an oral hearing or a review of the documentary evidence
is requested. If an oral hearing is desired, the request should explain
why the matter cannot be resolved by review of the documentary evidence
alone.
(b) Failure to timely submit.
(1) If the employee files a petition for a review after the
expiration of the 15 calendar day period provided for in paragraph (a)
of this section, the designated office may accept the request if the
employee can show that the delay was the result of circumstances beyond
his or her control, or because of a failure to receive the notice of the
filing deadline (unless the employee has actual knowledge of the filing
deadline).
(2) An employee waives the right to a review, and will have his or
her disposable pay offset in accordance with Peace Corps' offset
schedule, if the employee fails to file a request for a hearing unless
such failure is excused as provided in paragraph (b)(1) of this section.
(3) If the employee fails to appear at an oral hearing of which he
or she was notified, unless the hearing official determines failure to
appear was due to circumstances beyond the employee's control, his or
her appeal will be decided on the basis of the documents then available
to the hearing official.
(c) Representation at the hearing. The creditor agency may be
represented by a representative of its choice. The employee may
represent himself or herself or may be represented by an individual of
his or her choice and at his or her expense.
(d) Review of Peace Corps records related to the debt.
(1) An employee who intends to inspect or copy creditor agency
records related to the debt in accordance with Sec. 309.10(a)(5), must
send a letter to the official designated in the notice of intent to
offset stating his or her intention. The letter must be sent within 15
[[Page 37]]
calendar days after receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, copies of such records
shall be sent to the employee.
(e) Hearing official. Unless the Peace Corps appoints an
administrative law judge to conduct the hearing, the Peace Corps must
obtain a hearing official who is not under the supervision or control of
the Peace Corps.
(f) Obtaining the services of a hearing official when the Peace
Corps is the creditor agency.
(1) When the debtor is not a Peace Corps employee, and in the event
that the Peace Corps cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement, the Peace Corps may
contact an agent of the paying agency designated in appendix A to part
581 of title 5, Code of Federal Regulations or as otherwise designated
by the agency, and request a hearing official.
(2) When the debtor is a Peace Corps employee, the Peace Corps may
contact any agent of another agency designated in appendix A to part 581
of title 5, Code of Federal Regulations or otherwise designated by that
agency, to request a hearing official.
(g) Procedure. (1) If the employee requests a review, the hearing
official or administrative law judge shall notify the employee of the
form of the review to be provided. If an oral hearing is authorized, the
notice shall set forth the date, time and location of the hearing. If
the review will be on documentary evidence, the employee shall be
notified that he or she should submit arguments in writing to the
hearing official or administrative law judge by a specified date, after
which the record will be closed. This date shall give the employee
reasonable time (not less than 14 calendar days) to submit
documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official or administrative law
judge determines that the matter cannot be resolved by review of
documentary evidence alone (e.g. when an issue of credibility or
veracity is involved). The hearing is not an adversarial adjudication,
and need not take the form of an evidentiary hearing. Oral hearings may
take the form of, but are not limited to:
(i) Informal conferences with the hearing official or administrative
law judge, in which the employee and agency representative will be given
full opportunity to present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(3) Paper review. If the hearing official or administrative law
judge determines that an oral hearing is not necessary, he or she will
make the determination based upon a review of the available written
record.
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who
testify in oral hearings will do so under oath or affirmation.
(h) Date of decision. The hearing official or administrative law
judge shall issue a written opinion stating his or her decision, based
upon documentary evidence and information developed at the hearing, as
soon as practicable after the hearing, but not later than 60 calendar
days after the date on which the petition was received by the creditor
agency, unless the employee requests a delay in the proceedings. In such
case the 60 day decision period shall be extended by the number of days
by which the hearing was postponed.
(i) Content of decision. The written decision shall include:
(1) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(2) The hearing official's findings, analysis and conclusions; and
(3) The terms of any repayment schedules, if applicable.
[[Page 38]]
(j) Failure to appear. In the absence of good cause shown (e.g.,
excused illness), an employee who fails to appear at a hearing shall be
deemed, for the purpose of this subpart, to admit the existence and
amount of the debt as described in the notice of intent. If the
representative of the creditor agency fails to appear, the hearing
official shall schedule a new hearing date upon the request of the
agency representative upon showing of good cause. Both parties shall be
given the time and place of the new hearing.
Sec. 309.12 Certification.
(a) The Peace Corps salary offset coordination officer shall provide
a certification to the paying agency in all cases where:
(1) The hearing official determines that a debt exists;
(2) The employee admits the existence and amount of the debt by
failing to request a review; or
(3) The employee admits the existence of the debt by failing to
appear at a hearing.
(b) The certification must be in writing and must state:
(1) That the employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Government's right to collect the debt first
accrued;
(4) That the Peace Corps' regulations have been approved by OPM
pursuant to 5 CFR part 550, subpart K;
(5) The amount and date of any lump sum payment;
(6) If the collection is to be made in installments, the number of
installments to be collected, the amount of each installment, and the
date of the first installment, if a date other than the next officially
established pay period is required; and
(7) The date the action was taken and that it was taken pursuant to
5 U.S.C. 5514.
Sec. 309.13 Voluntary repayment agreements as an alternative to salary
offset.
(a) In response to a notice of intent, an employee may propose a
written agreement to repay the debt as an alternative to salary offset.
Any employee who wishes to repay a debt without salary offset shall
submit in writing a proposed agreement to repay the debt. The proposal
shall admit the existence of the debt and set forth a proposed repayment
schedule. Any proposal under this paragraph must be received by the
official designated in that notice within 15 calendar days after receipt
of the notice of intent.
(b) When the Peace Corps is the creditor agency, in response to a
timely proposal by the debtor the agency will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the agency's discretion to accept a repayment
agreement instead of proceeding by offset.
(c) If the Peace Corps decides that the proposed repayment agreement
is unacceptable, the employee will have 15 calendar days from the date
he or she received notice of the decision to file a petition for a
review.
(d) If the Peace Corps decides that the proposed repayment agreement
is acceptable, the alternative arrangement must be in writing and signed
by both the employee and a designated agency official.
Sec. 309.14 Special review.
(a) An employee subject to salary offset or a voluntary repayment
agreement, may at any time request a special review by the creditor
agency of the amount of the salary offset or voluntary payment, based on
materially changed circumstances such as, but not limited to,
catastrophic illness, divorce, death, or disability.
(b) In determining whether an offset would prevent the employee from
meeting essential subsistence expenses (costs for food, housing,
clothing, transportation and medical care), the employee shall submit a
detailed statement and supporting documents for the employee, his or her
spouse and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
[[Page 39]]
(c) If the employee requests a special review under this section,
the employee shall file an alternative proposed offset or payment
schedule and a statement, with supporting documents, showing why the
current salary offset or payments result in significant financial
hardship to the employee.
(d) The Peace Corps shall evaluate the statement and supporting
documents, and determine whether the original offset or repayment
schedule imposes significant financial hardship on the employee. The
Peace Corps shall notify the employee in writing of such determination,
including, if appropriate, a revised offset or payment schedule.
(e) If the special review results in a revised offset or repayment
schedule, the Peace Corps salary offset coordination officer shall
provide a new certification to the paying agency.
Sec. 309.15 Notice of salary offset.
(a) Upon receipt of proper certification of the creditor agency, the
Peace Corps payroll office will send the employee a written notice of
salary offset. Such notice shall, at a minimum:
(1) Contain a copy of the certification received from the creditor
agency; and
(2) Advise the employee that salary offset will be initiated at the
next officially established pay interval.
(b) The payroll office shall provide a copy of the notice to the
creditor agency and advise such agency of the dollar amount to be offset
and the pay period when the offset will begin.
Sec. 309.16 Procedures for salary offset.
(a) The Director (or designee) shall coordinate salary deductions
under this subpart.
(b) The payroll office shall determine the amount of the employee's
disposable pay and will implement the salary offset.
(c) Deductions shall begin within 3 official pay periods following
receipt by the payroll office of certification.
(d) Types of collection. (1) Lump-sum payment. If the amount of the
debt is equal to or less than 15 percent of disposable pay, such debt
generally will be collected in one lump-sum payment.
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The size
and frequency of installment deductions will bear a reasonable relation
to the size of the debt and the employee's ability to pay. However, the
amount deducted from any period may not exceed 15 percent of the
disposable pay from which the deduction is made unless the employee has
agreed in writing to the deduction of a greater amount.
(3) Lump-sum deductions from final check. A lump-sum deduction
exceeding the 15 percent of disposable pay limitation may be made from
any final salary payment pursuant to 31 U.S.C. 3716 in order to
liquidate the debt, whether the employee is being separated voluntarily
or involuntarily.
(4) Lump-sum deductions from other sources. Whenever an employee
subject to salary offset is separated from the Peace Corps, and the
balance of the debt cannot be liquidated by offset of the final salary
check, the Peace Corps, pursuant to 31 U.S.C. 3716, may offset any later
payments of any kind against the balance of the debt.
(e) Multiple debts. In instances where two or more creditor agencies
are seeking salary offsets, or where two or more debts are owed to a
single creditor agency, the payroll office may, at its discretion,
determine whether one or more debts should be offset simultaneously
within the 15 percent limitation.
(f) Precedence of debts owed to the Peace Corps. For Peace Corps
employees, debts owed to the agency generally take precedence over debts
owed to other agencies. In the event that a debt to the Peace Corps is
certified while an employee is subject to a salary offset to repay
another agency, the payroll office may decide whether to have that debt
repaid in full before collecting its claim or whether changes should be
made in the salary deduction being sent to the other agency. If debts
owed the Peace Corps can be collected in one pay period, the payroll
office may suspend the salary offset to the other agency for that pay
period in order to liquidate the Peace Corps' debt. When an employee
owes two or more debts, the best interests of the Government shall be
the primary consideration in
[[Page 40]]
the determination by the payroll office of the order of the debt
collection.
Sec. 309.17 Coordinating salary offset with other agencies.
(a) Responsibility of the Peace Corps as the creditor agency.
(1) The Director or Director's designee shall coordinate debt
collections and shall, as appropriate:
(i) Arrange for a hearing upon proper petition by a federal
employee; and
(ii) Prescribe such practices and procedures as may be necessary to
carry out the intent of this subpart.
(2) Designate a salary offset coordination officer who will be
responsible for:
(i) Ensuring that each notice of intent to offset is consistent with
the requirements of Sec. 309.10;
(ii) Ensuring that each certification of debt sent to a paying
agency is consistent with the requirements of Sec. 309.12;
(iii) Obtaining hearing officials from other agencies pursuant to
Sec. 309.11(f); and
(iv) Ensuring that hearings are properly scheduled.
(3) Request recovery from current paying agency. Upon completion of
the procedures established in these regulations and pursuant to 5 U.S.C.
5514, the Peace Corps must:
(i) Certify, in writing, that the employee owes the debt, the amount
and basis of the debt, the date on which payments are due, the date the
Government's right to collect the debt first accrued, and that the Peace
Corps' regulations implementing 5 U.S.C. 5514 have been approved by the
Office of Personnel Management;
(ii) Advise the paying agency of the actions taken under 5 U.S.C.
5514(a) and give the dates the actions were taken (unless the employee
has consented to the salary offset in writing or signed a statement
acknowledging receipt of the required procedures and the written consent
or statement is forwarded to the paying agency);
(iii) Except as otherwise provided in paragraph (a)(3) of this
section, submit a debt claim containing the information specified in
paragraphs (a)(3) (i) and (ii) of this section and an installment
agreement (or other instruction on the payment schedule), if applicable,
to the employee's paying agency;
(iv) If the employee is in the process of separating, the Peace
Corps must submit its debt claim to the employee's paying agency for
collection as provided in Sec. 309.16. The paying agency must certify
the total amount of its collection and notify the creditor agency and
the employee as provided in paragraph (b)(4) of this section. If the
paying agency is aware that the employee is entitled to payments from
the Civil Service Retirement and Disability Fund, or other similar
payments, it must provide written notification to the agency responsible
for making such payments that the debtor owes a debt (including the
amount) and that the provisions of this section have been fully complied
with. However, the Peace Corps must submit a properly certified claim to
the agency responsible for making such payments before the collection
can be made.
(v) If the employee is already separated and all payments due from
his or her former paying agency have been paid, the Peace Corps may
request, unless otherwise prohibited, that money due and payable to the
employee from the Civil Service Retirement and Disability Fund (5 CFR
831.1801 et seq.) or other similar funds, be administratively offset to
collect the debt (See 31 U.S.C. 3716 and 41 CFR 102.4).
(4) When an employee transfers to another paying agency, the Peace
Corps need not repeat the due process procedures described in 5 U.S.C.
5514 and this subpart to continue the collection. The Peace Corps must
review the debt upon receiving the former paying agency's notice of the
employee's transfer to make sure the collection is continued by the new
paying agency.
(b) Responsibility of the Peace Corps as the paying agency.
(1) Complete claim. When the Peace Corps receives a certified claim
from a creditor agency, deductions should be scheduled to begin at the
next officially established pay interval. The employee must receive
written notice that the Peace Corps has received a certified debt claim
from the creditor agency (including the amount) and written notice of
the date salary offset
[[Page 41]]
will begin and the amount of such deductions.
(2) Incomplete claim. When the Peace Corps receives an incomplete
certification of debt from a creditor agency, the Peace Corps must
return the debt claim with notice that procedures under 5 U.S.C. 5514
and this subpart must be followed and a properly certified debt claim
received before action will be taken to collect from the employee's
current pay account.
(3) Review. The Peace Corps is not authorized to review the merits
of the creditor agency's determination with respect to the amount or
validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If,
after the creditor agency has submitted the debt claim to the Peace
Corps, the employee transfers to another agency before the debt is
collected in full, the Peace Corps must certify the total amount
collected on the debt. One copy of the certification must be furnished
to the employee and one copy to the creditor agency along with notice of
the employee's transfer.
Sec. 309.18 Interest, penalties and administrative costs.
The Peace Corps shall assess interest, penalties and administrative
costs on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.
Sec. 309.19 Refunds.
(a) In instances where the Peace Corps is the creditor agency, it
shall promptly refund any amounts deducted under the authority of 5
U.S.C. 5514 when:
(1) The debt is waived or otherwise found not to be owed to the
United States; or
(2) An administrative or judicial order directs the Peace Corps to
make a refund.
(b) Unless required or permitted by law or contract, refunds under
this subpart shall not bear interest.
Sec. 309.20 Request for the services of a hearing official from the
creditor agency.
(a) The Peace Corps will provide a hearing official upon request of
the creditor agency when the debtor is employed by the Peace Corps and
the creditor agency cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement.
(b) The Peace Corps will provide a hearing official upon request of
a creditor agency when the debtor works for the creditor agency and that
agency cannot arrange for a hearing official.
(c) The salary offset coordination officer will appoint qualified
personnel to serve as hearing officials.
(d) Services rendered under this section will be provided on a fully
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31
U.S.C. 1535.
Sec. 309.21 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under this subpart shall not be construed as a waiver of
any rights which the employee may have under 5 U.S.C. 5514 or any other
provision of a written contract or law unless there are statutory or
contractual provisions to the contrary.
Subpart C_Tax Refund Offset
Sec. 309.22 Applicability and scope.
This subpart implements 31 U.S.C. 3720A which authorizes the
Internal Revenue Service (IRS) to reduce a tax refund by the amount of a
past-due legally enforceable debt owed to the United States.
Sec. 309.23 Past-due legally enforceable debt.
For purposes of this subpart, a past-due legally enforceable debt
referable to the IRS is a debt which is owed to the United States and:
(a) Except in the case of a judgment debt, has been delinquent for
at least 3 months and will not have been delinquent more than 10 years
at the time offset is made;
(b) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514;
(c) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason
[[Page 42]]
of 31 U.S.C. 3716(c)(2) or cannot be collected by administrative offset
under 31 U.S.C. 3716(a) by the Peace Corps against amounts payable to
the debtor by the Peace Corps;
(d) With respect to which the Peace Corps has given the taxpayer at
least 60 days to present evidence that all or part of the debt is not
past-due or legally enforceable, has considered evidence presented by
such taxpayer, and determined that an amount of such debt is past-due
and legally enforceable;
(e) Has been disclosed by the Peace Corps to a consumer reporting
agency as authorized by 31 U.S.C. 3711(f), unless the consumer reporting
agency would be prohibited from reporting information concerning the
debt by reason of 15 U.S.C. 1681c, or unless the amount of the debt does
not exceed $100;
(f) Is at least $25; and
(g) With respect to which the Peace Corps has notified or has made a
reasonable attempt to notify the taxpayer that:
(1) The debt is past due, and
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any overpayment of tax. For the
purposes of paragraph (g) of this section, in order to make a reasonable
attempt to notify the debtor, Peace Corps must use such address for the
debtor as may be obtainable from IRS pursuant to section 6103(m)(2),
(m)(4), or (m)(5) of the Internal Revenue Code.
Sec. 309.24 Definitions.
For purpose of this subpart: Commissioner means the Commissioner of
the Internal Revenue Service.
Memorandum of Understanding (MOU or agreement) means the agreement
between the IRS and the Peace Corps which prescribes the specific
conditions the Peace Corps must meet before the IRS will accept
referrals for tax refund offsets.
Sec. 309.25 Peace Corps' participation in the IRS tax refund offset
program.
(a) The Peace Corps will provide information to the IRS within the
time frame prescribed by the Commissioner of the IRS to enable the
Commissioner to make a final determination as to the Peace Corps'
participation in the tax refund offset program. Such information will
include a description of:
(1) The size and age of the Peace Corps' inventory of delinquent
debts;
(2) The prior collection efforts that the inventory reflects; and
(3) The quality controls the Peace Corps maintains to assure that
any debt that may be submitted for tax refund offset will be valid and
enforceable.
(b) In accordance with the timetable specified by the Commissioner,
the Peace Corps will submit test magnetic media to the IRS, in such form
and containing such data as the IRS shall specify.
(c) The Peace Corps will provide the IRS with a telephone number
which the IRS may furnish to individuals whose refunds have been offset
to obtain information concerning the offset.
Sec. 309.26 Procedures.
(a) The Chief Financial Officer (or designee) shall be the point of
contact with the IRS for administrative matters regarding the offset
program.
(b) The Peace Corps shall ensure that:
(1) Only those past-due legally enforceable debts described in Sec.
309.23 are forwarded to the IRS for offset; and
(2) The procedures prescribed in the MOU between the Peace Corps and
the IRS are followed in developing past-due debt information and
submitting the debts to the IRS.
(c) The Peace Corps shall submit a notification of a taxpayer's
liability for past-due legally enforceable debt to the IRS on magnetic
media as prescribed by the IRS. Such notification shall contain:
(1) The name and taxpayer identifying number (as defined in section
6109 of the Internal Revenue Code) of the individual who is responsible
for the debt;
(2) The dollar amount of such past-due and legally enforceable debt;
(3) The date on which the original debt became past due;
(4) A statement accompanying each magnetic tape certifying that,
with respect to each debt reported on the tape, all of the requirements
of eligibility of
[[Page 43]]
the debt for referral for the refund offset have been satisfied. See
Sec. 309.23.
(d) The Peace Corps shall promptly notify the IRS to correct data
submitted when the Peace Corps:
(1) Determines that an error has been made with respect to a debt
that has been referred;
(2) Receives or credits a payment on such debt; or
(3) Receives notification that the individual owing the debt has
filed for bankruptcy under title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged.
(e) When advising debtors of an intent to refer a debt to the IRS
for offset, the Peace Corps shall also advise the debtors of all
remedial actions available to defer or prevent the offset from taking
place.
Sec. 309.27 Referral of debts for offset.
(a) The Peace Corps shall refer to the IRS for collection by tax
refund offset, from refunds otherwise payable, only such past-due
legally enforceable debts owed to the Peace Corps:
(1) That are eligible for offset under the terms of 31 U.S.C. 3720A,
section 6402(d) of the Internal Revenue Code, 26 CFR 301.6402-6T and the
MOU; and
(2) That information will be provided for each such debt as is
required by the terms of the MOU.
(b) Such referrals shall be made by submitting to the IRS a magnetic
tape pursuant to Sec. 309.26(c), together with a written certification
that the conditions or requirements specified in 26 CFR 301.6402-6T and
the MOU have been satisfied with respect to each debt included in the
referral on such tape. The certification shall be in the form specified
in the MOU.
Sec. 309.28 Notice requirements before offset.
(a) The Peace Corps must notify, or make a reasonable attempt to
notify, the individual that:
(1) The debt is past due; and
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any refund of overpayment of tax.
(b) The Peace Corps shall provide a mailing address for forwarding
any correspondence and a contact name and telephone number for any
questions.
(c) The Peace Corps shall give the individual debtor at least 60
days from the date of the notification to present evidence that all or
part of the debt is not past due or legally enforceable. The Peace Corps
shall consider the evidence presented by the individual and shall make a
determination whether any part of such debt is past due and legally
enforceable. For purposes of this subpart, evidence that collection of
the debt is affected by a bankruptcy proceeding involving the individual
shall bar referral of the debt to the IRS.
(d) Notification given to a debtor pursuant to paragraphs (a), (b),
and (c) of this section shall advise the debtor of how he or she may
present evidence to the Peace Corps that all or part of the debt is not
past due or legally enforceable. Such evidence may not be referred to,
or considered by, individuals who are not officials, employees, or
agents of the United States in making the determination required under
paragraph (c) of this section. Unless such evidence is directly
considered by an official or employee of the Peace Corps, and the
determination required under paragraph (c) of this section has been made
by an official or employee of the Peace Corps, any unresolved dispute
with the debtor as to whether all or part of the debt is past due or
legally enforceable must be referred to the Peace Corps for ultimate
administrative disposition, and the Peace Corps must directly notify the
debtor of its determination.
Subpart D_Administrative Offset
Sec. 309.29 Applicability and scope.
The provisions of this subpart apply to the collection of debts owed
to the United States arising from transactions with the Peace Corps.
Administrative offset is authorized under section 5 of the Federal
Claims Collection Act of 1966, as amended by the Debt Collection Act of
1982 (31 U.S.C. 3716). These regulations are consistent with the Federal
Claims Collection Standards on administrative offset issued jointly by
the Department of Justice and the General Accounting Office as set forth
in 4 CFR part 102.
[[Page 44]]
Sec. 309.30 Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means
withholding money payable by the United States Government to, or held by
the Government for, a person to satisfy a debt the person owes the
Government.
(b) Person includes a natural person or persons, profit or nonprofit
corporation, partnership, association, trust, estate, consortium, or
other entity which is capable of owing a debt to the United States
Government except that agencies of the United States, or of any State or
local government shall be excluded.
Sec. 309.31 General.
(a) The Director of the Peace Corps (or designee) will determine the
feasibility of collection by administrative offset on a case-by-case
basis for each claim established. The Director (or designee) will
consider the following issues in making a determination to collect a
claim by administrative offset:
(1) Can administrative offset be accomplished?
(2) Is administrative offset practical and legal?
(3) Does administrative offset best serve and protect the interest
of the U.S. Government?
(4) Is administrative offset appropriate given the debtor's
financial condition?
(b) The Director (or designee) may initiate administrative offset
with regard to debts owed by a person to another agency of the United
States Government, upon receipt of a request from the head of another
agency or his or her designee, and a certification that the debt exists
and that the person has been afforded the necessary due process rights.
(c) The Director (or designee) may request another agency that holds
funds payable to a Peace Corps debtor to offset the debt against the
funds held and will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) No collection by administrative offset shall be made on any debt
that has been outstanding for more than 10 years unless facts material
to the Government's right to collect the debt were not known, and
reasonably could not have been known, by the official or officials
responsible for discovering the debt.
(e) Administrative offset under this subpart may not be initiated
against:
(1) A debt in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute;
(2) Debts owed by other agencies of the United States or by any
State or local Government; or
(3) Debts arising under the Internal Revenue Code of 1954; the
Social Security Act; or the tariff laws of the United States.
(f) The procedures for administrative offset in this subpart do not
apply to the offset of Federal salaries under 5 U.S.C. 5514.
Sec. 309.32 Demand for payment--notice.
(a) Whenever possible, the Peace Corps will seek written consent
from the debtor to initiate immediate collection before starting the
formal notification process.
(b) In cases where written agreement to collect cannot be obtained
from the debtor, a formal notification process shall be followed, 4 CFR
102.2. Prior to collecting a claim by administrative offset, the Peace
Corps shall send to the debtor, by certified or registered mail with
return receipt, written demands for payment in terms which inform the
debtor of the consequences of failure to cooperate. A total of 3
progressively stronger written demands at not more than 30 day intervals
will normally be made unless a response to the first or second demand
indicates that a further demand would be futile or the debtor's response
does not require rebuttal, or other pertinent information indicates that
additional written demands would be unnecessary. In determining the
timing of the demand letters, the Peace Corps should give due regard to
the need to act promptly so that, as a general rule, if necessary to
refer the debt to the Department of Justice for litigation, such
referral can be made within 1 year of the final determination of the
fact and the amount of the debt. When appropriate to protect the
Government's interests (for
[[Page 45]]
example, to prevent the statute of limitations from expiring), written
demand may be preceded by other appropriate actions, including immediate
referral for litigation.
(c) Before offset is made, a written notice will be sent to the
debtor. This notice will include:
(1) The nature and amount of the debt;
(2) The date when payment is due (not less than 30 days from the
date of mailing or hand delivery of the notice);
(3) The agency's intention to collect the debt by administrative
offset, including asking the assistance of other Federal agencies to
help in the offset whenever possible, if the debtor has not made payment
by the payment due date or has not made an arrangement for payment by
the payment due date;
(4) Any provision for interest, late payment penalties and
administrative charges, if payment is not received by the due date;
(5) The possible reporting of the claim to consumer reporting
agencies and the possibility that Peace Corps will forward the claim to
a collection agency;
(6) The right of the debtor to inspect and copy Peace Corps' records
related to the claim;
(7) The right of the debtor to request a review of the determination
of indebtedness and, in the circumstances described below, to request an
oral hearing from the Peace Corps;
(8) The right of the debtor to enter into a written agreement with
the agency to repay the debt in some other way; and
(9) In appropriate cases, the right of the debtor to request a
waiver.
(d) Claims for payment of travel advances and employee training
expenses require notification prior to administrative offset as
described in this section. Because no oral hearing is required, notice
of the right to a hearing need not be included in the notification.
Sec. 309.33 Debtor's failure to respond.
If the debtor fails to respond to the notice described in Sec.
309.32 (c) by the proposed effective date specified in the notice, the
Peace Corps may take further action under this part or the FCCS under 4
CFR parts 101 through 105. Peace Corps may collect by administrative
offset if the debtor:
(a) Has not made payment by the payment due date;
(b) Has not requested a review of the claim within the agency as set
out in Sec. 309.34; or
(c) Has not made an arrangement for payment by the payment due date.
Sec. 309.34 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
the debt, or the terms of repayment. A request to review a disputed debt
must be submitted to the Peace Corps official who provided notification
within 30 calendar days of the receipt of the written notice described
in Sec. 309.32(c).
(b) The Peace Corps will provide a copy of the record to the debtor
and advise him/her to furnish available evidence to support his or her
position. Upon receipt of the evidence, the Peace Corps will review the
written record of indebtedness and inform the debtor of its findings.
(c) Pending the resolution of a dispute by the debtor, transactions
in any of the debtor's accounts maintained by the Peace Corps may be
temporarily suspended. Depending on the type of transaction the
suspension could preclude its payment, removal, or transfer, as well as
prevent the payment of interest or discount due thereon. Should the
dispute be resolved in the debtor's favor, the suspension will be
immediately lifted.
(d) During the review period, interest, penalties, and
administrative costs authorized under the Federal Claims Collection Act
of 1966, as amended, will continue to accrue.
Sec. 309.35 Hearing.
(a) A debtor will be provided a reasonable opportunity for an oral
hearing when:
(1)(i) By statute, consideration must be given to a request to waive
the indebtedness;
(ii) The debtor requests waiver of the indebtedness; and
(iii) The waiver determination rests on an issue of creditability or
veracity; or
[[Page 46]]
(2) The debtor requests reconsideration and the Peace Corps
determines that the question of indebtedness cannot be resolved by
reviewing the documentary evidence.
(b) In cases where an oral hearing is provided to the debtor, the
Peace Corps will conduct the hearing, and provide the debtor with a
written decision.
Sec. 309.36 Written agreement for repayment.
If the debtor requests a repayment agreement in place of offset, the
Peace Corps has discretion and should use sound judgment to determine
whether to accept a repayment agreement in place of offset. If the debt
is delinquent and the debtor has not disputed its existence or amount,
the Peace Corps will not accept a repayment agreement in place of offset
unless the debtor is able to establish that offset would cause undue
financial hardship or be unjust. No repayment arrangement will be
considered unless the debtor submits a financial statement, executed
under penalty of perjury, reflecting the debtor's assets, liabilities,
income, and expenses. The financial statement must be submitted within
10 business days of the Peace Corps' request for the statement. At the
Peace Corps' option, a confess-judgment note or bond of indemnity with
surety may be required for installment agreements. Notwithstanding the
provisions of this section, any reduction or compromise of a claim will
be governed by 4 CFR part 103 and 31 CFR 5.3.
Sec. 309.37 Administrative offset procedures.
(a) If the debtor does not exercise the right to request a review
within the time specified in Sec. 309.34, or if as a result of the
review, it is determined that the debt is due and no written agreement
is executed, then administrative offset shall be ordered in accordance
with this subpart without further notice.
(b) Travel advance. The Peace Corps will deduct outstanding advances
provided to Peace Corps travelers from other amounts owed the traveler
by the agency whenever possible and practicable. Monies owed by an
employee for outstanding travel advances which cannot be deducted from
other travel amounts due that employee, will be collected through salary
offset as described in subpart B of this part.
(c) Volunteer allowances. The Peace Corps may deduct through
administrative offset amounts owed the U.S. Government by Volunteers and
Trainees from the readjustment allowance account.
(1) Overseas posts will obtain written consent from Volunteers or
Trainees who are indebted to the agency upon close of service or
termination, to deduct amounts owed from their readjustment allowances.
Posts will immediately submit the written consent to Volunteer and Staff
Payroll Services Division (VSPS).
(2) In cases where written consent from indebted Volunteers or
Trainees cannot be obtained, overseas posts will immediately report the
documented debts to VSPS. VSPS may then initiate offset against the
readjustment allowance. Prior to offset action, VSPS will notify the
debtor Volunteer or Trainee of their rights as required in Sec. 309.32.
(d) Requests for offset to other Federal agencies. The Director or
his or her designee may request that a debt owed to the Peace Corps be
administratively offset against funds due and payable to a debtor by
another Federal agency. In requesting administrative offset, the Peace
Corps, as creditor, will certify in writing to the Federal agency
holding funds of the debtor;
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the Peace Corps has complied with the requirements of 31
U.S.C. 3716, its own administrative offset regulations and the
applicable provisions of 4 CFR part 102 with respect to providing the
debtor with due process.
(e) Requests for offset from other Federal agencies. Any Federal
agency may request that funds due and payable to its debtor by the Peace
Corps be administratively offset in order to collect a debt owed to such
Federal agency by the debtor. The Peace Corps shall initiate the
requested offset only upon:
(1) Receipt of written certification from the creditor agency:
[[Page 47]]
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise of
administrative offset; and
(iv) That the agency has complied with its own administrative offset
regulations and with the applicable provisions of 4 CFR part 102,
including providing any required hearing or review.
(2) A determination by the Peace Corps that collection by offset
against funds payable by the Peace Corps would be in the best interest
of the United States as determined by the facts and circumstances of the
particular case, and that such offset would not otherwise be contrary to
law.
Sec. 309.38 Civil and Foreign Service Retirement Fund.
(a) Unless otherwise prohibited by law, Peace Corps may request that
monies that are due and payable to a debtor from the Civil Service
Retirement and Disability Fund, the Foreign Service Retirement Fund or
any other Federal retirement fund be administratively offset in
reasonable amounts in order to collect in one full payment or a minimal
number of payments, debts owed the United States by the debtor. Such
requests shall be made to the appropriate officials of the respective
fund servicing agency in accordance with such regulations as may be
prescribed by the Director of that agency. The requests for
administrative offset will certify in writing the following:
(1) The debtor owes the United States a debt and the amount of the
debt;
(2) The Peace Corps has complied with applicable regulations and
procedures;
(3) The Peace Corps has followed the requirements of the FCCS as
described in this subpart.
(b) Once Peace Corps decides to request offset under paragraph (a)
of this section, it will make the request as soon as practical after
completion of the applicable procedures in order that the fund servicing
agency may identify and flag the debtor's account in anticipation of the
time when the debtor requests or becomes eligible to receive payments
from the fund. This will satisfy any requirements that offset will be
initiated prior to expiration of the statute of limitations.
(c) If Peace Corps collects part or all of the debt by other means
before deductions are made or completed pursuant to paragraph (a) of
this section, Peace Corps shall act promptly to modify or terminate its
request for offset.
(d) This section does not require or authorize the fund servicing
agency to review the merits of Peace Corps' determination relative to
the debt.
Sec. 309.39 Jeopardy procedure.
The Peace Corps may effect an administrative offset against a
payment to be made to the debtor prior to the completion of the
procedures required by Sec. 309.32(c) of this subpart if failure to
take the offset would substantially jeopardize the Peace Corps' ability
to collect the debt, and the time available before the payment is to be
made does not reasonably permit the completion of those procedures. Such
prior offset shall be promptly followed by the completion of those
procedures. Amounts recovered by offset but later found not to be owed
to the Peace Corps shall be promptly refunded.
Subpart E_Use of Consumer Reporting Agencies and Referrals to Collection
Agencies
Sec. 309.40 Use of consumer reporting agencies.
(a) The Peace Corps may report delinquent debts to consumer
reporting agencies (see 31 U.S.C. 3701(a)(3)). Sixty days prior to
release of information to a consumer reporting agency, the debtor shall
be notified, in writing, of the intent to disclose the existence of the
debt to a consumer reporting agency. Such notice of intent may be
separate correspondence or included in correspondence demanding direct
payment. The notice shall be in conformance with 31 U.S.C. 3711(f) and
the Federal Claims Collection Standards.
(b) The information that may be disclosed to the consumer reporting
agency is limited to:
(1) The debtor's name, address, social security number or taxpayer
identification number, and any other information necessary to establish
the identity of the individual;
[[Page 48]]
(2) The amount, status, and history of the claim; and
(3) The Peace Corps program or activity under which the claim arose.
Sec. 309.41 Referrals to collection agencies.
(a) Peace Corps has authority to contract for collection services to
recover delinquent debts in accordance with 31 U.S.C. 3718(c) and the
FCCS (4 CFR 102.6).
(b) Peace Corps will use private collection agencies where it
determines that their use is in the best interest of the Government.
Where Peace Corps determines that there is a need to contract for
collection services, the contract will provide that:
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, and refer the matter to the Department of
Justice for litigation or to take any other action under this Part will
be retained by the Peace Corps;
(2) Contractors are subject to the Privacy Act of 1974, as amended,
to the extent specified in 5 U.S.C. 552a(m) and to applicable Federal
and State laws and regulations pertaining to debt collection practices,
such as the Fair Debt Collection Practices Act, 15 U.S.C. 1692;
(3) The contractor is required to strictly account for all amounts
collected;
(4) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable Peace Corps to
determine whether to pursue collection through litigation or to
terminate collection;
(5) The contractor must agree to provide any data in its files
relating to paragraphs (a) (1), (2) and (3) of section 105.2 of the
Federal Claims Collection Standards upon returning the account to Peace
Corps for subsequent referral to the Department of Justice for
litigation.
(c) Peace Corps will not use a collection agency to collect a debt
owed by a current employed or retired Federal employee, if collection by
salary or annuity offset is available.
Subpart F_Compromise, Suspension or Termination and Referral of Claims
Sec. 309.42 Compromise.
Peace Corps may attempt to effect compromise in accordance with the
standards set forth in part 103 of the FCCS (4 CFR part 103).
Sec. 309.43 Suspending or terminating collection.
Suspension or termination of collection action shall be made in
accordance with the standards set forth in Part 104 of the FCCS (4 CFR
104)
Sec. 309.44 Referral of claims.
Claims on which an aggressive collection action has been taken and
which cannot be collected, compromised or on which collection action
cannot be suspended or terminated under parts 103 and 104 of the FCCS (4
CFR parts 103 and 104), shall be referred to the General Accounting
Office or the Department of Justice, as appropriate, in accordance with
the procedures set forth in part 105 of the FCCS (4 CFR part 105).
PART 310_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT).
--Table of Contents
Sec.
310.25 How is this part organized?
310.50 How is this part written?
310.75 Do terms in this part have special meanings?
Subpart A_General
310.100 What does this part do?
310.105 Does this part apply to me?
310.110 What is the purpose of the nonprocurement debarment and
suspension system?
310.115 How does an exclusion restrict a person's involvement in covered
transactions?
310.120 May we grant an exception to let an excluded person participate
in a covered transaction?
310.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
[[Page 49]]
310.130 Does exclusion under the federal procurement system affect a
person's eligibility to participate in nonprocurement
transactions?
310.135 May the Peace Corps exclude a person who is not currently
participating in a nonprocurement transaction?
310.140 How do I know if a person is excluded?
310.145 Does this part address persons who are disqualified, as well as
those who are excluded from nonprocurement transactions?
Subpart B_Covered Transactions
310.200 What is a covered transaction?
310.205 Why is it important to know if a particular transaction is a
covered transaction?
310.210 Which nonprocurement transactions are covered transactions?
310.215 Which nonprocurement transactions are not covered transactions?
310.220 Are any procurement contracts included as covered transactions?
310.225 How do I know if a transaction in which I may participate is a
covered transaction?
Subpart C_Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
310.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
310.305 May I enter into a covered transaction with an excluded or
disqualified person?
310.310 What must I do if a federal agency excludes a person with whom I
am already doing business in a covered transaction?
310.315 May I use the services of an excluded person as a principal
under a covered transaction?
310.320 Must I verify that principals of my covered transactions are
eligible to participate?
310.325 What happens if I do business with an excluded person in a
covered transaction?
310.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
310.335 What information must I provide before entering into a covered
transaction with the Peace Corps?
310.340 If I disclose unfavorable information required under Sec.
310.335, will I be prevented from participating in the
transaction?
310.345 What happens if I fail to disclose the information required
under Sec. 310.335?
310.350 What must I do if I learn of the information required under
Sec. 310.335 after entering into a covered transaction with
the Peace Corps?
Disclosing Information--Lower Tier Participants
310.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that
participant?
310.360 What happens if I fail to disclose the information required
under Sec. 310.355?
310.365 What must I do if I learn of information required under Sec.
310.355 after entering into a covered transaction with a
higher tier participant?
Subpart D_Responsibilities of Peace Corps Officials Regarding
Transactions
310.400 May I enter into a transaction with an excluded or disqualified
person?
310.405 May I enter into a covered transaction with a participant if a
principal of the transaction is excluded?
310.410 May I approve a participant's use of the services of an excluded
person?
310.415 What must I do if a federal agency excludes the participant or a
principal after I enter into a covered transaction?
310.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
310.425 When do I check to see if a person is excluded or disqualified?
310.430 How do I check to see if a person is excluded or disqualified?
310.435 What must I require of a primary tier participant?
310.440 What method do I use to communicate those requirements to
participants?
310.445 What action may I take if a primary tier participant knowingly
does business with an excluded or disqualified person?
310.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 310.335?
310.455 What may I do if a lower tier participant fails to disclose the
information required under Sec. 310.355 to the next higher
tier?
Subpart E_Excluded Parties List System
310.500 What is the purpose of the Excluded Parties List System (EPLS)?
310.505 Who uses the EPLS?
310.510 Who maintains the EPLS?
310.515 What specific information is in the EPLS?
310.520 Who places the information into the EPLS?
[[Page 50]]
310.525 Whom do I ask if I have questions about a person in the EPLS?
310.530 Where can I find the EPLS?
Subpart F_General Principles Relating to Suspension and Debarment
Actions
310.600 How do suspension and debarment actions start?
310.605 How does suspension differ from debarment?
310.610 What procedures does the Peace Corps use in suspension and
debarment actions?
310.615 How does the Peace Corps notify a person of a suspension and
debarment action?
310.620 Do federal agencies coordinate suspension and debarment actions?
310.625 What is the scope of a suspension or debarment action?
310.630 May the Peace Corps impute the conduct of one person to another?
310.635 May the Peace Corps settle a debarment or suspension action?
310.640 May a settlement include a voluntary exclusion?
310.645 Do other federal agencies know if the Peace Corps agrees to a
voluntary exclusion?
Subpart G_Suspension
310.700 When may the suspending official issue a suspension?
310.705 What does the suspending official consider in issuing a
suspension?
310.710 When does a suspension take effect?
310.715 What notice does the suspending official give me if I am
suspended?
310.720 How may I contest a suspension?
310.725 How much time do I have to contest a suspension?
310.730 What information must I provide to the suspending official if I
contest a suspension?
310.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
310.740 Are suspension proceedings formal?
310.745 How is fact-finding conducted?
310.750 What does the suspending official consider in deciding whether
to continue or terminate my suspension?
310.755 When will I know whether the suspension is continued or
terminated?
310.760 How long may my suspension last?
Subpart H_Debarment
310.800 What are the causes for debarment?
310.805 What notice does the debarring official give me if I am proposed
for debarment?
310.810 When does a debarment take effect?
310.815 How may I contest a proposed debarment?
310.820 How much time do I have to contest a proposed debarment?
310.825 What information must I provide to the debarring official if I
contest a proposed debarment?
310.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
310.835 Are debarment proceedings formal?
310.840 How is fact-finding conducted?
310.845 What does the debarring official consider in deciding whether to
debar me?
310.850 What is the standard of proof in a debarment action?
310.855 Who has the burden of proof in a debarment action?
310.860 What factors may influence the debarring official's decision?
310.865 How long may my debarment last?
310.870 When do I know if the debarring official debars me?
310.875 May I ask the debarring official to reconsider a decision to
debar me?
310.880 What factors may influence the debarring official during
reconsideration?
310.885 May the debarring official extend a debarment?
Subpart I_Definitions
310.900 Adequate evidence.
310.905 Affiliate.
310.910 Agency.
310.915 Agent or representative.
310.920 Civil judgment.
310.925 Conviction.
310.930 Debarment.
310.935 Debarring official.
310.940 Disqualified.
310.945 Excluded or exclusion.
310.950 Excluded Parties List System.
310.955 Indictment.
310.960 Ineligible or ineligibility.
310.965 Legal proceedings.
310.970 Nonprocurement transaction.
310.975 Notice.
310.980 Participant.
310.985 Person.
310.990 Preponderance of the evidence.
310.995 Principal.
310.100 Respondent.
310.1005 State.
310.1010 Suspending official.
310.1015 Suspension.
310.1020 Voluntary exclusion or voluntarily excluded.
Subpart J--Reserved
Appendix to Part 310--Covered Transactions
Authority: 22 U.S.C. 2503; Sec. 2455, Pub. L. 103-355, 108 Stat.
3327 (31 U.S.C. 6101 note); E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O.
12689 (3 CFR, 1989 Comp., p. 235).
[[Page 51]]
Source: 68 FR 66588 and 66589, Nov. 26, 2003, unless otherwise
noted.
Sec. 310.25 How is this part organized?
(a) This part is subdivided into ten subparts. Each subpart contains
information related to a broad topic or specific audience with special
responsibilities, as shown in the following table:
------------------------------------------------------------------------
In subpart . . . You will find provisions related to . . .
------------------------------------------------------------------------
A............................ general information about this rule.
B............................ the types of Peace Corps transactions
that are covered by the Governmentwide
nonprocurement suspension and debarment
system.
C............................ the responsibilities of persons who
participate in covered transactions.
D............................ the responsibilities of Peace Corps
officials who are authorized to enter
into covered transactions.
E............................ the responsibilities of Federal agencies
for the Excluded Parties List System
(Disseminated by the General Services
Administration).
F............................ the general principles governing
suspension, debarment, voluntary
exclusion and settlement.
G............................ suspension actions.
H............................ debarment actions.
I............................ definitions of terms used in this part.
J............................ [Reserved]
------------------------------------------------------------------------
(b) The following table shows which subparts may be of special
interest to you, depending on who you are:
------------------------------------------------------------------------
If you are . . . See subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a A, B, C, and I.
nonprocurement transaction.
(2) a respondent in a suspension action... A, B, F, G and I.
(3) a respondent in a debarment action.... A, B, F, H and I.
(4) a suspending official................. A, B, D, E, F, G and I.
(5) a debarring official.................. A, B, D, E, F, H and I.
(6) a (n) Peace Corps official authorized A, B, D, E and I.
to enter into a covered transaction.
(7) Reserved.............................. J.
------------------------------------------------------------------------
Sec. 310.50 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community to use. The section headings
and text, often in the form of questions and answers, must be read
together.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed. The pronoun ``we'' always is the Peace Corps.
(c) The ``Covered Transactions'' diagram in the appendix to this
part shows the levels or ``tiers'' at which the Peace Corps enforces an
exclusion under this part.
Sec. 310.75 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meaning.
Those terms are defined in Subpart I of this part. For example, three
important terms are--
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under this part or
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of an
agency official, may have a different scope than exclusions, or have
special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
Subpart A_General
Sec. 310.100 What does this part do?
This part adopts a governmentwide system of debarment and suspension
for Peace Corps nonprocurement activities. It also provides for
reciprocal exclusion of persons who have been excluded under the Federal
Acquisition Regulation, and provides for the consolidated listing of all
persons who are excluded, or disqualified by statute, executive order,
or other legal authority. This part satisfies the requirements in
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR
[[Page 52]]
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension''
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public
Law 103-355, 108 Stat. 3327).
Sec. 310.105 Does this part apply to me?
Portions of this part (see table at Sec. 310.25(b)) apply to you if
you are a(n)--
(a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
(b) Respondent (a person against whom the Peace Corps has initiated
a debarment or suspension action);
(c) Peace Corps debarring or suspending official; or
(d) Peace Corps official who is authorized to enter into covered
transactions with non-Federal parties.
Sec. 310.110 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude from Federal programs persons who are not
presently responsible.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
Sec. 310.115 How does an exclusion restrict a person's involvement
in covered transactions?
With the exceptions stated in Sec. Sec. 310.120, 310.315, and
310.420, a person who is excluded by the Peace Corps or any other
Federal agency may not:
(a) Be a participant in a(n) Peace Corps transaction that is a
covered transaction under subpart B of this part;
(b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
(c) Act as a principal of a person participating in one of those
covered transactions.
Sec. 310.120 May we grant an exception to let an excluded person
participate in a covered transaction?
(a) The Peace Corps Director or designee may grant an exception
permitting an excluded person to participate in a particular covered
transaction. If the Peace Corps Director or designee grants an
exception, the exception must be in writing and state the reason(s) for
deviating from the governmentwide policy in Executive Order 12549.
(b) An exception granted by one agency for an excluded person does
not extend to the covered transactions of another agency.
Sec. 310.125 Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?
If any Federal agency excludes a person under its nonprocurement
common rule on or after August 25, 1995, the excluded person is also
ineligible to participate in Federal procurement transactions under the
FAR. Therefore, an exclusion under this part has reciprocal effect in
Federal procurement transactions.
Sec. 310.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement transactions?
If any Federal agency excludes a person under the FAR on or after
August 25, 1995, the excluded person is also ineligible to participate
in nonprocurement covered transactions under this part. Therefore, an
exclusion under the FAR has reciprocal effect in Federal nonprocurement
transactions.
Sec. 310.135 May the Peace Corps exclude a person who is not currently
participating in a nonprocurement transaction?
Given a cause that justifies an exclusion under this part, we may
exclude any person who has been involved, is currently involved, or may
reasonably be expected to be involved in a covered transaction.
[[Page 53]]
Sec. 310.140 How do I know if a person is excluded?
Check the Excluded Parties List System (EPLS) to determine whether a
person is excluded. The General Services Administration (GSA) maintains
the EPLS and makes it available, as detailed in subpart E of this part.
When a Federal agency takes an action to exclude a person under the
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into the EPLS.
Sec. 310.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement transactions?
Except if provided for in Subpart J of this part, this part--
(a) Addresses disqualified persons only to--
(1) Provide for their inclusion in the EPLS; and
(2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
(b) Does not specify the--
(1) Peace Corps transactions for which a disqualified person is
ineligible. Those transactions vary on a case-by-case basis, because
they depend on the language of the specific statute, Executive order, or
regulation that caused the disqualification;
(2) Entities to which the disqualification applies; or
(3) Process that the agency uses to disqualify a person. Unlike
exclusion, disqualification is frequently not a discretionary action
that a Federal agency takes.
Subpart B_Covered Transactions
Sec. 310.200 What is a covered transaction?
A covered transaction is a nonprocurement or procurement transaction
that is subject to the prohibitions of this part. It may be a
transaction at--
(a) The primary tier, between a Federal agency and a person (see
appendix to this part); or
(b) A lower tier, between a participant in a covered transaction and
another person.
Sec. 310.205 Why is it important if a particular transaction is a covered
transaction?
The importance of a covered transaction depends upon who you are.
(a) As a participant in the transaction, you have the
responsibilities laid out in Subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
(b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
(c) As an excluded person, you may not be a participant or principal
in the transaction unless--
(1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 310.310 or Sec. 310.415; or
(2) A(n) Peace Corps official obtains an exception from the Peace
Corps Director or designee to allow you to be involved in the
transaction, as permitted under Sec. 310.120.
Sec. 310.210 Which nonprocurement transactions are covered transactions?
All nonprocurement transactions, as defined in Sec. 310.970, are
covered transactions unless listed in Sec. 310.215. (See appendix to
this part.)
Sec. 310.215 Which nonprocurement transactions are not covered transactions?
The following types of nonprocurement transactions are not covered
transactions:
(a) A direct award to--
(1) A foreign government or foreign governmental entity;
(2) A public international organization;
(3) An entity owned (in whole or in part) or controlled by a foreign
government; or
[[Page 54]]
(4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
(b) A benefit to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted). For example, if
a person receives social security benefits under the Supplemental
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et
seq., those benefits are not covered transactions and, therefore, are
not affected if the person is excluded.
(c) Federal employment.
(d) A transaction that the Peace Corps needs to respond to a
national or agency-recognized emergency or disaster.
(e) A permit, license, certificate, or similar instrument issued as
a means to regulate public health, safety, or the environment, unless
the Peace Corps specifically designates it to be a covered transaction.
(f) An incidental benefit that results from ordinary governmental
operations.
(g) Any other transaction if the application of an exclusion to the
transaction is prohibited by law.
Sec. 310.220 Are any procurement contracts included as covered transactions?
(a) Covered transactions under this part--
(1) Do not include any procurement contracts awarded directly by a
Federal agency; but
(2) Do include some procurement contracts awarded by non-Federal
participants in nonprocurement covered transactions (see appendix to
this part).
(b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
(1) The contract is awarded by a participant in a nonprocurement
transaction that is covered under Sec. 310.210, and the amount of the
contract is expected to equal or exceed $25,000.
(2) The contract requires the consent of a(n) Peace Corps official.
In that case, the contract, regardless of the amount, always is a
covered transaction, and it does not matter who awarded it. For example,
it could be a subcontract awarded by a contractor at a tier below a
nonprocurement transaction, as shown in the appendix to this part.
(3) The contract is for federally-required audit services.
Sec. 310.225 How do I know if a transaction in which I may participate
is a covered transaction?
As a participant in a transaction, you will know that it is a
covered transaction because the agency regulations governing the
transaction, the appropriate agency official, or participant at the next
higher tier who enters into the transaction with you, will tell you that
you must comply with applicable portions of this part.
Subpart C_Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
Sec. 310.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
When you enter into a covered transaction with another person at the
next lower tier, you must verify that the person with whom you intend to
do business is not excluded or disqualified. You do this by:
(a) Checking the EPLS; or
(b) Collecting a certification from that person if allowed by this
rule; or
(c) Adding a clause or condition to the covered transaction with
that person.
Sec. 310.305 May I enter into a covered transaction with an excluded
or disqualified person?
(a) You as a participant may not enter into a covered transaction
with an excluded person, unless the Peace Corps grants an exception
under Sec. 310.120.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you have obtained an
exception under the disqualifying statute, Executive order, or
regulation.
[[Page 55]]
Sec. 310.310 What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?
(a) You as a participant may continue covered transactions with an
excluded person if the transactions were in existence when the agency
excluded the person. However, you are not required to continue the
transactions, and you may consider termination. You should make a
decision about whether to terminate and the type of termination action,
if any, only after a thorough review to ensure that the action is proper
and appropriate.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Peace Corps
grants an exception under Sec. 310.120.
Sec. 310.315 May I use the services of an excluded person as a principal
under a covered transaction?
(a) You as a participant may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using the services of that person in the transaction before the person
was excluded. However, you are not required to continue using that
person's services as a principal. You should make a decision about
whether to discontinue that person's services only after a thorough
review to ensure that the action is proper and appropriate.
(b) You may not begin to use the services of an excluded person as a
principal under a covered transaction unless the Peace Corps grants an
exception under Sec. 310.120.
Sec. 310.320 Must I verify that principals of my covered transactions
are eligible to participate?
Yes, you as a participant are responsible for determining whether
any of your principals of your covered transactions is excluded or
disqualified from participating in the transaction. You may decide the
method and frequency by which you do so. You may, but you are not
required to, check the EPLS.
Sec. 310.325 What happens if I do business with an excluded person in
a covered transaction?
If as a participant you knowingly do business with an excluded
person, we may disallow costs, annul or terminate the transaction, issue
a stop work order, debar or suspend you, or take other remedies as
appropriate.
Sec. 310.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Before entering into a covered transaction with a participant at the
next lower tier, you must require that participant to--
(a) Comply with this subpart as a condition of participation in the
transaction. You may do so using any method(s), unless Sec. 310.440
requires you to use specific methods.
(b) Pass the requirement to comply with this subpart to each person
with whom the participant enters into a covered transaction at the next
lower tier.
Disclosing Information--Primary Tier Participants
Sec. 310.335 What information must I provide before entering into a
covered transaction with the Peace Corps?
Before you enter into a covered transaction at the primary tier, you
as the participant must notify the Peace Corps office that is entering
into the transaction with you, if you know that you or any of the
principals for that covered transaction:
(a) Are presently excluded or disqualified;
(b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. 310.800(a) or had a civil judgment rendered
against you for one of those offenses within that time period;
(c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses listed in Sec. 310.800(a); or
(d) Have had one or more public transactions (Federal, State, or
local) terminated within the preceding three years for cause or default.
[[Page 56]]
Sec. 310.340 If I disclose unfavorable information required under
Sec. 310.335, will I be prevented from participating in the transaction?
As a primary tier participant, your disclosure of unfavorable
information about yourself or a principal under Sec. 310.335 will not
necessarily cause us to deny your participation in the covered
transaction. We will consider the information when we determine whether
to enter into the covered transaction. We also will consider any
additional information or explanation that you elect to submit with the
disclosed information.
Sec. 310.345 What happens if I fail to disclose information required
under Sec. 310.335?
If we later determine that you failed to disclose information under
Sec. 310.335 that you knew at the time you entered into the covered
transaction, we may--
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 310.350 What must I do if I learn of information required under
Sec. 310.335 after entering into a covered transaction with the Peace Corps?
At any time after you enter into a covered transaction, you must
give immediate written notice to the Peace Corps office with which you
entered into the transaction if you learn either that--
(a) You failed to disclose information earlier, as required by Sec.
310.335; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 310.335.
Disclosing Information--Lower Tier Participants
Sec. 310.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
Before you enter into a covered transaction with a person at the
next higher tier, you as a lower tier participant must notify that
person if you know that you or any of the principals are presently
excluded or disqualified.
Sec. 310.360 What happens if I fail to disclose the information required
under Sec. 310.355?
If we later determine that you failed to tell the person at the
higher tier that you were excluded or disqualified at the time you
entered into the covered transaction with that person, we may pursue any
available remedies, including suspension and debarment.
Sec. 310.365 What must I do if I learn of information required under
Sec. 310.355 after entering into a covered transaction with a higher
tier participant?
At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that--
(a) You failed to disclose information earlier, as required by Sec.
310.355; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 310.355.
Subpart D_Responsibilities of Peace Corps Officials Regarding
Transactions
Sec. 310.400 May I enter into a transaction with an excluded or disqualified
person?
(a) You as an agency official may not enter into a covered
transaction with an excluded person unless you obtain an exception under
Sec. 310.120.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you obtain a waiver or
exception under the statute, Executive order, or regulation that is the
basis for the person's disqualification.
Sec. 310.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
As an agency official, you may not enter into a covered transaction
with a
[[Page 57]]
participant if you know that a principal of the transaction is excluded,
unless you obtain an exception under Sec. 310.120.
Sec. 310.410 May I approve a participant's use of the services of an
excluded person?
After entering into a covered transaction with a participant, you as
an agency official may not approve a participant's use of an excluded
person as a principal under that transaction, unless you obtain an
exception under Sec. 310.120.
Sec. 310.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
(a) You as an agency official may continue covered transactions with
an excluded person, or under which an excluded person is a principal, if
the transactions were in existence when the person was excluded. You are
not required to continue the transactions, however, and you may consider
termination. You should make a decision about whether to terminate and
the type of termination action, if any, only after a thorough review to
ensure that the action is proper.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an
excluded person is a principal, unless you obtain an exception under
Sec. 310.120.
Sec. 310.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
If a transaction at a lower tier is subject to your approval, you as
an agency official may not approve--
(a) A covered transaction with a person who is currently excluded,
unless you obtain an exception under Sec. 310.120; or
(b) A transaction with a person who is disqualified from that
transaction, unless you obtain a waiver or exception under the statute,
Executive order, or regulation that is the basis for the person's
disqualification.
Sec. 310.425 When do I check to see if a person is excluded or disqualified?
As an agency official, you must check to see if a person is excluded
or disqualified before you--
(a) Enter into a primary tier covered transaction;
(b) Approve a principal in a primary tier covered transaction;
(c) Approve a lower tier participant if agency approval of the lower
tier participant is required; or
(d) Approve a principal in connection with a lower tier transaction
if agency approval of the principal is required.
Sec. 310.430 How do I check to see if a person is excluded or disqualified?
You check to see if a person is excluded or disqualified in two
ways:
(a) You as an agency official must check the EPLS when you take any
action listed in Sec. 310.425.
(b) You must review information that a participant gives you, as
required by Sec. 310.335, about its status or the status of the
principals of a transaction.
Sec. 310.435 What must I require of a primary tier participant?
You as an agency official must require each participant in a primary
tier covered transaction to--
(a) Comply with subpart C of this part as a condition of
participation in the transaction; and
(b) Communicate the requirement to comply with Subpart C of this
part to persons at the next lower tier with whom the primary tier
participant enters into covered transactions.
Sec. 310.440 What method do I use to communicate those requirements to
participants?
To communicate the requirements to participants, you must include a
term or condition in the transaction requiring the participant's
compliance with subpart C of this part and requiring them to include a
similar term or condition in lower tier covered transactions.
[[Page 58]]
Sec. 310.445 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
If a participant knowingly does business with an excluded or
disqualified person, you as an agency official may refer the matter for
suspension and debarment consideration. You may also disallow costs,
annul or terminate the transaction, issue a stop work order, or take any
other appropriate remedy.
Sec. 310.450 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 310.335?
If you as an agency official determine that a participant failed to
disclose information, as required by Sec. 310.335, at the time it
entered into a covered transaction with you, you may--
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 310.455 What may I do if a lower tier participant fails to disclose
the information required under Sec. 310.355 to the next higher tier?
If you as an agency official determine that a lower tier participant
failed to disclose information, as required by Sec. 310.355, at the
time it entered into a covered transaction with a participant at the
next higher tier, you may pursue any remedies available to you,
including the initiation of a suspension or debarment action.
Subpart E_Excluded Parties List System
Sec. 310.500 What is the purpose of the Excluded Parties List System (EPLS)?
The EPLS is a widely available source of the most current
information about persons who are excluded or disqualified from covered
transactions.
Sec. 310.505 Who uses the EPLS?
(a) Federal agency officials use the EPLS to determine whether to
enter into a transaction with a person, as required under Sec. 310.430.
(b) Participants also may, but are not required to, use the EPLS to
determine if--
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. 310.320; or
(2) Persons with whom they are entering into covered transactions at
the next lower tier are excluded or disqualified.
(c) The EPLS is available to the general public.
Sec. 310.510 Who maintains the EPLS?
In accordance with the OMB guidelines, the General Services
Administration (GSA) maintains the EPLS. When a Federal agency takes an
action to exclude a person under the nonprocurement or procurement
debarment and suspension system, the agency enters the information about
the excluded person into the EPLS.
Sec. 310.515 What specific information is in the EPLS?
(a) At a minimum, the EPLS indicates--
(1) The full name (where available) and address of each excluded or
disqualified person, in alphabetical order, with cross references if
more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for the action;
(6) The agency and name and telephone number of the agency point of
contact for the action; and
(7) The Dun and Bradstreet Number (DUNS), or other similar code
approved by the GSA, of the excluded or disqualified person, if
available.
(b)(1) The database for the EPLS includes a field for the Taxpayer
Identification Number (TIN) (the social security number (SSN) for an
individual) of an excluded or disqualified person.
(2) Agencies disclose the SSN of an individual to verify the
identity of an individual, only if permitted under the Privacy Act of
1974 and, if appropriate, the Computer Matching and Privacy Protection
Act of 1988, as codified in 5 U.S.C. 552(a).
[[Page 59]]
Sec. 310.520 Who places the information into the EPLS?
Federal officials who take actions to exclude persons under this
part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
the EPLS:
(a) Information required by Sec. 310.515(a);
(b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under law;
(c) Information about an excluded or disqualified person, generally
within five working days, after--
(1) Taking an exclusion action;
(2) Modifying or rescinding an exclusion action;
(3) Finding that a person is disqualified; or
(4) Finding that there has been a change in the status of a person
who is listed as disqualified.
Sec. 310.525 Whom do I ask if I have questions about a person in the EPLS?
If you have questions about a person in the EPLS, ask the point of
contact for the Federal agency that placed the person's name into the
EPLS. You may find the agency point of contact from the EPLS.
Sec. 310.530 Where can I find the EPLS?
(a) You may access the EPLS through the Internet, currently at
http://epls.arnet.gov.
(b) As of November 26, 2003, you may also subscribe to a printed
version. However, we anticipate discontinuing the printed version. Until
it is discontinued, you may obtain the printed version by purchasing a
yearly subscription from the Superintendent of Documents, U.S.
Government Printing Office, Washington, DC 20402, or by calling the
Government Printing Office Inquiry and Order Desk at (202) 783-3238.
Subpart F_General Principles Relating to Suspension and Debarment
Actions
Sec. 310.600 How do suspension and debarment actions start?
When we receive information from any source concerning a cause for
suspension or debarment, we will promptly report and investigate it. We
refer the question of whether to suspend or debar you to our suspending
or debarring official for consideration, if appropriate.
Sec. 310.605 How does suspension differ from debarment?
Suspension differs from debarment in that--
------------------------------------------------------------------------
A suspending official . . . A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary Imposes debarment for a
status of ineligibility for specified period as a final
procurement and nonprocurement determination that a person is
transactions, pending completion of an not presently responsible.
investigation or legal proceedings.
(b) Must--............................. Must conclude, based on a
(1) Have adequate evidence that there preponderance of the evidence,
may be a cause for debarment of a that the person has engaged in
person; and. conduct that warrants
(2) Conclude that immediate action is debarment.
necessary to protect the Federal
interest.
(c) Usually imposes the suspension Imposes debarment after giving
first, and then promptly notifies the the respondent notice of the
suspended person, giving the person an action and an opportunity to
opportunity to contest the suspension contest the proposed
and have it lifted. debarment.
------------------------------------------------------------------------
Sec. 310.610 What procedures does the Peace Corps use in suspension and
debarment actions?
In deciding whether to suspend or debar you, we handle the actions
as informally as practicable, consistent with principles of fundamental
fairness.
(a) For suspension actions, we use the procedures in this subpart
and subpart G of this part.
(b) For debarment actions, we use the procedures in this subpart and
subpart H of this part.
[[Page 60]]
Sec. 310.615 How does the Peace Corps notify a person of a suspension
or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known street address, facsimile number, or e-mail address of--
(1) You or your identified counsel; or
(2) Your agent for service of process, or any of your partners,
officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to any of these persons.
Sec. 310.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal agency has an interest in a
suspension or debarment, the agencies may consider designating one
agency as the lead agency for making the decision. Agencies are
encouraged to establish methods and procedures for coordinating their
suspension and debarment actions.
Sec. 310.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the suspension or debarment is
effective as follows:
(a) Your suspension or debarment constitutes suspension or debarment
of all of your divisions and other organizational elements from all
covered transactions, unless the suspension or debarment decision is
limited--
(1) By its terms to one or more specifically identified individuals,
divisions, or other organizational elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may be included in a suspension
or debarment action if the suspending or debarring official--
(1) Officially names the affiliate in the notice; and
(2) Gives the affiliate an opportunity to contest the action.
Sec. 310.630 May the Peace Corps impute conduct of one person to another?
For purposes of actions taken under this rule, we may impute conduct
as follows:
(a) Conduct imputed from an individual to an organization. We may
impute the fraudulent, criminal, or other improper conduct of any
officer, director, shareholder, partner, employee, or other individual
associated with an organization, to that organization when the improper
conduct occurred in connection with the individual's performance of
duties for or on behalf of that organization, or with the organization's
knowledge, approval or acquiescence. The organization's acceptance of
the benefits derived from the conduct is evidence of knowledge, approval
or acquiescence.
(b) Conduct imputed from an organization to an individual, or
between individuals. We may impute the fraudulent, criminal, or other
improper conduct of any organization to an individual, or from one
individual to another individual, if the individual to whom the improper
conduct is imputed either participated in, had knowledge of, or reason
to know of the improper conduct.
(c) Conduct imputed from one organization to another organization.
We may impute the fraudulent, criminal, or other improper conduct of one
organization to another organization when the improper conduct occurred
in connection with a partnership, joint venture, joint application,
association or similar arrangement, or when the organization to whom the
improper conduct is imputed has the power to direct, manage, control or
influence the activities of the organization responsible for the
improper conduct. Acceptance of the benefits derived from the conduct is
evidence of knowledge, approval or acquiescence.
Sec. 310.635 May the Peace Corps settle a debarment or suspension action?
Yes, we may settle a debarment or suspension action at any time if
it is in the best interest of the Federal Government.
Sec. 310.640 May a settlement include a voluntary exclusion?
Yes, if we enter into a settlement with you in which you agree to be
excluded, it is called a voluntary exclusion and has governmentwide
effect.
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Sec. 310.645 Do other Federal agencies know if the Peace Corps agrees
to a voluntary exclusion?
(a) Yes, we enter information regarding a voluntary exclusion into
the EPLS.
(b) Also, any agency or person may contact us to find out the
details of a voluntary exclusion.
Subpart G_Suspension
Sec. 310.700 When may the suspending official issue a suspension?
Suspension is a serious action. Using the procedures of this subpart
and subpart F of this part, the suspending official may impose
suspension only when that official determines that--
(a) There exists an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. 310.800(a), or
(b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. 310.800(b) through (d); and
(c) Immediate action is necessary to protect the public interest.
Sec. 310.705 What does the suspending official consider in issuing
a suspension?
(a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers how much information is
available, how credible it is given the circumstances, whether or not
important allegations are corroborated, and what inferences can
reasonably be drawn as a result. During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant
documents.
(b) An indictment, conviction, civil judgment, or other official
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of
suspension actions.
(c) In deciding whether immediate action is needed to protect the
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government.
Sec. 310.710 When does a suspension take effect?
A suspension is effective when the suspending official signs the
decision to suspend.
Sec. 310.715 What notice does the suspending official give me if I
am suspended?
After deciding to suspend you, the suspending official promptly
sends you a Notice of Suspension advising you--
(a) That you have been suspended;
(b) That your suspension is based on--
(1) An indictment;
(2) A conviction;
(3) Other adequate evidence that you have committed irregularities
which seriously reflect on the propriety of further Federal Government
dealings with you; or
(4) Conduct of another person that has been imputed to you, or your
affiliation with a suspended or debarred person;
(c) Of any other irregularities in terms sufficient to put you on
notice without disclosing the Federal Government's evidence;
(d) Of the cause(s) upon which we relied under Sec. 310.700 for
imposing suspension;
(e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
(f) Of the applicable provisions of this subpart, Subpart F of this
part, and any other Peace Corps procedures governing suspension decision
making; and
(g) Of the governmentwide effect of your suspension from procurement
and nonprocurement programs and activities.
Sec. 310.720 How may I contest a suspension?
If you as a respondent wish to contest a suspension, you or your
representative must provide the suspending official with information in
opposition to the suspension. You may do this orally or in writing, but
any information provided orally that you
[[Page 62]]
consider important must also be submitted in writing for the official
record.
Sec. 310.725 How much time do I have to contest a suspension?
(a) As a respondent you or your representative must either send, or
make rrangements to appear and present, the information and argument to
the suspending official within 30 days after you receive the Notice of
Suspension.
(b) We consider the notice to be received by you--
(1) When delivered, if we mail the notice to the last known street
address, or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice by facsimile or five days after
we send it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days
after we send it if the e-mail is undeliverable.
Sec. 310.730 What information must I provide to the suspending official
if I contest a suspension?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the suspending official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Suspension. A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(2) All existing, proposed, or prior exclusions under regulations
implementing E.O. 12549 and all similar actions taken by Federal, state,
or local agencies, including administrative agreements that affect only
those agencies;
(3) All criminal and civil proceedings not included in the Notice of
Suspension that grew out of facts relevant to the cause(s) stated in the
notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false
information, the Peace Corps may seek further criminal, civil or
administrative action against you, as appropriate.
Sec. 310.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
(a) You as a respondent will not have an additional opportunity to
challenge the facts if the suspending official determines that--
(1) Your suspension is based upon an indictment, conviction, civil
judgment, or other finding by a Federal, State, or local body for which
an opportunity to contest the facts was provided;
(2) Your presentation in opposition contains only general denials to
information contained in the Notice of Suspension;
(3) The issues raised in your presentation in opposition to the
suspension are not factual in nature, or are not material to the
suspending official's initial decision to suspend, or the official's
decision whether to continue the suspension; or
(4) On the basis of advice from the Department of Justice, an office
of the United States Attorney, a State attorney general's office, or a
State or local prosecutor's office, that substantial interests of the
government in pending or contemplated legal proceedings based on the
same facts as the suspension would be prejudiced by conducting fact-
finding.
(b) You will have an opportunity to challenge the facts if the
suspending official determines that--
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the suspension.
(c) If you have an opportunity to challenge disputed material facts
under this section, the suspending official or designee must conduct
additional proceedings to resolve those facts.
Sec. 310.740 Are suspension proceedings formal?
(a) Suspension proceedings are conducted in a fair and informal
manner. The suspending official may use flexible procedures to allow you
to present matters in opposition. In so doing, the suspending official
is not required to follow formal rules of evidence or procedure in
creating an official record
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upon which the official will base a final suspension decision.
(b) You as a respondent or your representative must submit any
documentary evidence you want the suspending official to consider.
Sec. 310.745 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; and
(2) The fact-finder must prepare written findings of fact for the
record.
(b) A transcribed record of fact-finding proceedings must be made,
unless you as a respondent and the Peace Corps agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. 310.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
(a) The suspending official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the suspending official's initial
decision to suspend you;
(2) Any further information and argument presented in support of, or
opposition to, the suspension; and
(3) Any transcribed record of fact-finding proceedings.
(b) The suspending official may refer disputed material facts to
another official for findings of fact. The suspending official may
reject any resulting findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly
erroneous.
Sec. 310.755 When will I know whether the suspension is continued or
terminated?
The suspending official must make a written decision whether to
continue, modify, or terminate your suspension within 45 days of closing
the official record. The official record closes upon the suspending
official's receipt of final submissions, information and findings of
fact, if any. The suspending official may extend that period for good
cause.
Sec. 310.760 How long may my suspension last?
(a) If legal or debarment proceedings are initiated at the time of,
or during your suspension, the suspension may continue until the
conclusion of those proceedings. However, if proceedings are not
initiated, a suspension may not exceed 12 months.
(b) The suspending official may extend the 12 month limit under
paragraph (a) of this section for an additional 6 months if an office of
a U.S. Assistant Attorney General, U.S. Attorney, or other responsible
prosecuting official requests an extension in writing. In no event may a
suspension exceed 18 months without initiating proceedings under
paragraph (a) of this section.
(c) The suspending official must notify the appropriate officials
under paragraph (b) of this section of an impending termination of a
suspension at least 30 days before the 12 month period expires to allow
the officials an opportunity to request an extension.
Subpart H_Debarment
Sec. 310.800 What are the causes for debarment?
We may debar a person for--
(a) Conviction of or civil judgment for--
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, receiving stolen property, making false claims, or obstruction
of justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects your
present responsibility;
(b) Violation of the terms of a public agreement or transaction so
serious as
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to affect the integrity of an agency program, such as--
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction;
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, or a procurement debarment by any Federal agency taken
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
(2) Knowingly doing business with an ineligible person, except as
permitted under Sec. 310.120;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 310.640 or of any settlement of a
debarment or suspension action; or
(5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
(d) Any other cause of so serious or compelling a nature that it
affects your present responsibility.
Sec. 310.805 What notice does the debarring official give me if I am
proposed for debarment?
After consideration of the causes in Sec. 310.800 of this subpart,
if the debarring official proposes to debar you, the official sends you
a Notice of Proposed Debarment, pursuant to Sec. 310.615, advising
you--
(a) That the debarring official is considering debarring you;
(b) Of the reasons for proposing to debar you in terms sufficient to
put you on notice of the conduct or transactions upon which the proposed
debarment is based;
(c) Of the cause(s) under Sec. 310.800 upon which the debarring
official relied for proposing your debarment;
(d) Of the applicable provisions of this subpart, Subpart F of this
part, and any other Peace Corps procedures governing debarment; and
(e) Of the governmentwide effect of a debarment from procurement and
nonprocurement programs and activities.
Sec. 310.810 When does a debarment take effect?
A debarment is not effective until the debarring official issues a
decision. The debarring official does not issue a decision until the
respondent has had an opportunity to contest the proposed debarment.
Sec. 310.815 How may I contest a proposed debarment?
If you as a respondent wish to contest a proposed debarment, you or
your representative must provide the debarring official with information
in opposition to the proposed debarment. You may do this orally or in
writing, but any information provided orally that you consider important
must also be submitted in writing for the official record.
Sec. 310.820 How much time do I have to contest a proposed debarment?
(a) As a respondent you or your representative must either send, or
make arrangements to appear and present, the information and argument to
the debarring official within 30 days after you receive the Notice of
Proposed Debarment.
(b) We consider the Notice of Proposed Debarment to be received by
you--
(1) When delivered, if we mail the notice to the last known street
address, or five days after we send it if the letter is undeliverable;
(2) When sent, if we send the notice by facsimile or five days after
we send it if the facsimile is undeliverable; or
(3) When delivered, if we send the notice by e-mail or five days
after we send it if the e-mail is undeliverable.
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Sec. 310.825 What information must I provide to the debarring official
if I contest a proposed debarment?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the debarring official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. 310.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
(2) All existing, proposed, or prior exclusions under regulations
implementing E.O. 12549 and all similar actions taken by Federal, State,
or local agencies, including administrative agreements that affect only
those agencies;
(3) All criminal and civil proceedings not included in the Notice of
Proposed Debarment that grew out of facts relevant to the cause(s)
stated in the notice; and
(4) All of your affiliates.
(b) If you fail to disclose this information, or provide false
information, the Peace Corps may seek further criminal, civil or
administrative action against you, as appropriate.
Sec. 310.830 Under what conditions do I get an additional opportunity
to challenge the facts on which a proposed debarment is based?
(a) You as a respondent will not have an additional opportunity to
challenge the facts if the debarring official determines that--
(1) Your debarment is based upon a conviction or civil judgment;
(2) Your presentation in opposition contains only general denials to
information contained in the Notice of Proposed Debarment; or
(3) The issues raised in your presentation in opposition to the
proposed debarment are not factual in nature, or are not material to the
debarring official's decision whether to debar.
(b) You will have an additional opportunity to challenge the facts
if the debarring official determines that--
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the proposed debarment.
(c) If you have an opportunity to challenge disputed material facts
under this section, the debarring official or designee must conduct
additional proceedings to resolve those facts.
Sec. 310.835 Are debarment proceedings formal?
(a) Debarment proceedings are conducted in a fair and informal
manner. The debarring official may use flexible procedures to allow you
as a respondent to present matters in opposition. In so doing, the
debarring official is not required to follow formal rules of evidence or
procedure in creating an official record upon which the official will
base the decision whether to debar.
(b) You or your representative must submit any documentary evidence
you want the debarring official to consider.
Sec. 310.840 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; and
(2) The fact-finder must prepare written findings of fact for the
record.
(b) A transcribed record of fact-finding proceedings must be made,
unless you as a respondent and the Peace Corps agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. 310.845 What does the debarring official consider in deciding
whether to debar me?
(a) The debarring official may debar you for any of the causes in
Sec. 310.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth at
Sec. 310.860.
(b) The debarring official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the debarring official's proposed
debarment;
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(2) Any further information and argument presented in support of, or
in opposition to, the proposed debarment; and
(3) Any transcribed record of fact-finding proceedings.
(c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any resultant findings, in whole or in part, only after specifically
determining them to be arbitrary, capricious, or clearly erroneous.
Sec. 310.850 What is the standard of proof in a debarment action?
(a) In any debarment action, we must establish the cause for
debarment by a preponderance of the evidence.
(b) If the proposed debarment is based upon a conviction or civil
judgment, the standard of proof is met.
Sec. 310.855 Who has the burden of proof in a debarment action?
(a) We have the burden to prove that a cause for debarment exists.
(b) Once a cause for debarment is established, you as a respondent
have the burden of demonstrating to the satisfaction of the debarring
official that you are presently responsible and that debarment is not
necessary.
Sec. 310.860 What factors may influence the debarring official's
decision?
This section lists the mitigating and aggravating factors that the
debarring official may consider in determining whether to debar you and
the length of your debarment period. The debarring official may consider
other factors if appropriate in light of the circumstances of a
particular case. The existence or nonexistence of any factor, such as
one of those set forth in this section, is not necessarily determinative
of your present responsibility. In making a debarment decision, the
debarring official may consider the following factors:
(a) The actual or potential harm or impact that results or may
result from the wrongdoing.
(b) The frequency of incidents and/or duration of the wrongdoing.
(c) Whether there is a pattern or prior history of wrongdoing. For
example, if you have been found by another Federal agency or a State
agency to have engaged in wrongdoing similar to that found in the
debarment action, the existence of this fact may be used by the
debarring official in determining that you have a pattern or prior
history of wrongdoing.
(d) Whether you are or have been excluded or disqualified by an
agency of the Federal Government or have not been allowed to participate
in State or local contracts or assistance agreements on a basis of
conduct similar to one or more of the causes for debarment specified in
this part.
(e) Whether you have entered into an administrative agreement with a
Federal agency or a State or local government that is not governmentwide
but is based on conduct similar to one or more of the causes for
debarment specified in this part.
(f) Whether and to what extent you planned, initiated, or carried
out the wrongdoing.
(g) Whether you have accepted responsibility for the wrongdoing and
recognize the seriousness of the misconduct that led to the cause for
debarment.
(h) Whether you have paid or agreed to pay all criminal, civil and
administrative liabilities for the improper activity, including any
investigative or administrative costs incurred by the government, and
have made or agreed to make full restitution.
(i) Whether you have cooperated fully with the government agencies
during the investigation and any court or administrative action. In
determining the extent of cooperation, the debarring official may
consider when the cooperation began and whether you disclosed all
pertinent information known to you.
(j) Whether the wrongdoing was pervasive within your organization.
(k) The kind of positions held by the individuals involved in the
wrongdoing.
(l) Whether your organization took appropriate corrective action or
remedial measures, such as establishing ethics training and implementing
programs to prevent recurrence.
(m) Whether your principals tolerated the offense.
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(n) Whether you brought the activity cited as a basis for the
debarment to the attention of the appropriate government agency in a
timely manner.
(o) Whether you have fully investigated the circumstances
surrounding the cause for debarment and, if so, made the result of the
investigation available to the debarring official.
(p) Whether you had effective standards of conduct and internal
control systems in place at the time the questioned conduct occurred.
(q) Whether you have taken appropriate disciplinary action against
the individuals responsible for the activity which constitutes the cause
for debarment.
(r) Whether you have had adequate time to eliminate the
circumstances within your organization that led to the cause for the
debarment.
(s) Other factors that are appropriate to the circumstances of a
particular case.
Sec. 310.865 How long may my debarment last?
(a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
(b) In determining the period of debarment, the debarring official
may consider the factors in Sec. 310.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
(c) If the debarment is for a violation of the provisions of the
Drug-Free Workplace Act of 1988, your period of debarment may not exceed
five years.
Sec. 310.870 When do I know if the debarring official debars me?
(a) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official record
closes upon the debarring official's receipt of final submissions,
information and findings of fact, if any. The debarring official may
extend that period for good cause.
(b) The debarring official sends you written notice, pursuant to
Sec. 310.615 that the official decided, either--
(1) Not to debar you; or
(2) To debar you. In this event, the notice:
(i) Refers to the Notice of Proposed Debarment;
(ii) Specifies the reasons for your debarment;
(iii) States the period of your debarment, including the effective
dates; and
(iv) Advises you that your debarment is effective for covered
transactions and contracts that are subject to the Federal Acquisition
Regulation (48 CFR chapter 1), throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.
Sec. 310.875 May I ask the debarring official to reconsider a decision
to debar me?
Yes, as a debarred person you may ask the debarring official to
reconsider the debarment decision or to reduce the time period or scope
of the debarment. However, you must put your request in writing and
support it with documentation.
Sec. 310.880 What factors may influence the debarring official during
reconsideration?
The debarring official may reduce or terminate your debarment based
on--
(a) Newly discovered material evidence;
(b) A reversal of the conviction or civil judgment upon which your
debarment was based;
(c) A bona fide change in ownership or management;
(d) Elimination of other causes for which the debarment was imposed;
or
(e) Other reasons the debarring official finds appropriate.
Sec. 310.885 May the debarring official extend a debarment?
(a) Yes, the debarring official may extend a debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest.
(b) However, the debarring official may not extend a debarment
solely on
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the basis of the facts and circumstances upon which the initial
debarment action was based.
(c) If the debarring official decides that a debarment for an
additional period is necessary, the debarring official must follow the
applicable procedures in this subpart, and subpart F of this part, to
extend the debarment.
Subpart I_Definitions
Sec. 310.900 Adequate evidence.
Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
Sec. 310.905 Affiliate.
Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways we use to
determine control include, but are not limited to--
(a) Interlocking management or ownership;
(b) Identity of interests among family members;
(c) Shared facilities and equipment;
(d) Common use of employees; or
(e) A business entity which has been organized following the
exclusion of a person which has the same or similar management,
ownership, or principal employees as the excluded person.
Sec. 310.910 Agency.
Agency means any United States executive department, military
department, defense agency, or any other agency of the executive branch.
Other agencies of the Federal government are not considered ``agencies''
for the purposes of this part unless they issue regulations adopting the
governmentwide Debarment and Suspension system under Executive orders
12549 and 12689.
Sec. 310.915 Agent or representative.
Agent or representative means any person who acts on behalf of, or
who is authorized to commit, a participant in a covered transaction.
Sec. 310.920 Civil judgment.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).
Sec. 310.925 Conviction.
Conviction means--
(a) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
(b) Any other resolution that is the functional equivalent of a
judgment, including probation before judgment and deferred prosecution.
A disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.
Sec. 310.930 Debarment.
Debarment means an action taken by a debarring official under
subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulation (48 CFR chapter 1). A person so excluded is debarred.
Sec. 310.935 Debarring official.
(a) Debarring official means an agency official who is authorized to
impose debarment. A debarring official is either--
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Sec. 310.940 Disqualified.
Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other than Executive Orders 12549 and
12689) or other authority. Examples of disqualifications include persons
prohibited under--
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(a) The Davis-Bacon Act (40 U.S.C. 276(a));
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).
Sec. 310.945 Excluded or exclusion.
Excluded or exclusion means--
(a) That a person or commodity is prohibited from being a
participant in covered transactions, whether the person has been
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart
9.4; voluntarily excluded; or
(b) The act of excluding a person.
Sec. 310.950 Excluded Parties List System
Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing the
names and other information about persons who are ineligible. The EPLS
system includes the printed version entitled, ``List of Parties Excluded
or Disqualified from Federal Procurement and Nonprocurement Programs,''
so long as published.
Sec. 310.955 Indictment.
Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.
Sec. 310.960 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
Sec. 310.965 Legal proceedings.
Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.
Sec. 310.970 Nonprocurement transaction.
(a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to the
following:
(1) Grants.
(2) Cooperative agreements.
(3) Scholarships.
(4) Fellowships.
(5) Contracts of assistance.
(6) Loans.
(7) Loan guarantees.
(8) Subsidies.
(9) Insurances.
(10) Payments for specified uses.
(11) Donation agreements.
(b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.
Sec. 310.975 Notice.
Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. 310. 615.)
Sec. 310.980 Participant.
Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.
Sec. 310.985 Person.
Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.
Sec. 310.990 Preponderance of the evidence.
Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.
Sec. 310.995 Principal.
Principal means--
(a) An officer, director, owner, partner, principal investigator, or
other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
(b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who--
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(1) Is in a position to handle Federal funds;
(2) Is in a position to influence or control the use of those funds;
or,
(3) Occupies a technical or professional position capable of
substantially influencing the development or outcome of an activity
required to perform the covered transaction.
Sec. 310.1000 Respondent.
Respondent means a person against whom an agency has initiated a
debarment or suspension action.
Sec. 310.1005 State.
(a) State means--
(1) Any of the states of the United States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto Rico;
(4) Any territory or possession of the United States; or
(5) Any agency or instrumentality of a state.
(b) For purposes of this part, State does not include institutions
of higher education, hospitals, or units of local government.
Sec. 310.1010 Suspending official.
(a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Sec. 310.1015 Suspension.
Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1) for a temporary period,
pending completion of an agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.
Sec. 310.1020 Voluntary exclusion or voluntarily excluded.
(a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
(b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.
Subpart J--[Reserved]
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Appendix to Part 310--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000
PART 311_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
311.100 Conditions on use of funds.
311.105 Definitions.
311.110 Certification and disclosure.
Subpart B_Activities by Own Employees
311.200 Agency and legislative liaison.
311.205 Professional and technical services.
311.210 Reporting.
Subpart C_Activities by Other Than Own Employees
311.300 Professional and technical services.
Subpart D_Penalties and Enforcement
311.400 Penalties.
311.405 Penalty procedures.
311.410 Enforcement.
Subpart E_Exemptions
311.500 Secretary of Defense.
Subpart F_Agency Reports
311.600 Semi-annual compilation.
311.605 Inspector General report.
Appendix A to Part 311--Certification Regarding Lobbying
Appendix B to Part 311--Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 22
U.S.C. 2503.
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Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Source: 55 FR 6737, 6749, Feb. 26, 1990, unless otherwise noted.
Subpart A_General
Sec. 311.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 311.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct
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appropriation made by law to any person. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees, loan
insurance, interest subsidies, insurance, or direct United States cash
assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as
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soon as he or she is employed by such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 311.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement, shall file a certification, and a
disclosure form, if required, to the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds
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if that activity is allowable under either subpart B or C.
Subpart B_Activities by Own Employees
Sec. 311.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.