[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2008 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
22
Parts 1 to 299
Revised as of April 1, 2008
Foreign Relations
________________________
Containing a codification of documents of general
applicability and future effect
As of April 1, 2008
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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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 22:
Chapter I--Department of State 3
Chapter II--Agency for International Development 787
Finding Aids:
Material Approved for Incorporation by Reference........ 1103
Table of CFR Titles and Chapters........................ 1105
Alphabetical List of Agencies Appearing in the CFR...... 1123
List of CFR Sections Affected........................... 1133
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 1.1 refers to
title 22, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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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
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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What if the material incorporated by reference cannot be found? If
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2008.
[[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; 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 XIII--Millennium Challenge
Board; 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, 2008.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains parts 1 to 299)
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Part
chapter i--Department of State.............................. 1
chapter ii--Agency for International Development............ 200
[[Page 3]]
CHAPTER I--DEPARTMENT OF STATE
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SUBCHAPTER A--GENERAL
Part Page
1 Insignia of rank............................ 9
2 Protection of foreign dignitaries and other
official personnel...................... 9
3 Gifts and decorations from foreign
governments............................. 11
3a Acceptance of employment from foreign
governments by members of the uniformed
services................................ 17
4 Notification of foreign official status..... 19
5 Organization................................ 20
7 Board of Appellate Review................... 21
8 Advisory committee management............... 26
9 Security information regulations............ 31
9a Security information regulations applicable
to certain international energy
programs; related material.............. 35
9b Regulations governing Department of State
press building passes................... 37
SUBCHAPTER B--PERSONNEL
11 Appointment of Foreign Service officers..... 41
12 Complaints against employees by alleged
creditors............................... 59
13 Personnel................................... 59
16 Foreign Service grievance system............ 60
17 Overpayments from the Foreign Service
Retirement and Disability Fund under the
Foreign Service Retirement and
Disability System (FSRDS) and the
Foreign Service Pension System.......... 68
18 Regulations concerning post employment
conflict of interest.................... 71
19 Benefits for spouses and former spouses of
participants in the Foreign Service
retirement and disability system........ 75
20 Benefits for certain former spouses......... 96
[[Page 4]]
21 Indemnification of employees................ 99
SUBCHAPTER C--FEES AND FUNDS
22 Schedule of fees for consular services--
Department of State and Foreign Service. 101
23 Finance and accounting...................... 106
SUBCHAPTER D--CLAIMS AND STOLEN PROPERTY
33 Fishermen's Protective Act Guaranty Fund
procedures under section 7.............. 108
34 Debt collection............................. 112
35 Program fraud civil remedies................ 123
SUBCHAPTER E--VISAS
40 Regulations pertaining to both nonimmigrants
and immigrants under the Immigration and
Nationality Act, as amended............. 139
41 Visas: Documentation of nonimmigrants under
the Immigration and Nationality Act, as
amended................................. 152
42 Visas: Documentation of immigrants under the
Immigration and Nationality Act, as
amended................................. 197
43-45
[Reserved]
46 Control of aliens departing from the United
States.................................. 224
47
[Reserved]
SUBCHAPTER F--NATIONALITY AND PASSPORTS
50 Nationality procedures...................... 230
51 Passports................................... 235
52 Marriages................................... 249
53 Passport requirement and exceptions......... 249
SUBCHAPTER G--PUBLIC DIPLOMACY AND EXCHANGES
61 World-wide free flow of audio-visual
materials............................... 251
62 Exchange visitor program.................... 254
63 Payments to and on behalf of participants in
the international educational and
cultural exchange program............... 307
64 Participation by Federal employees in
cultural exchange programs of foreign
countries............................... 312
65 Foreign students............................ 314
66 Availability of the records of the National
Endowment for Democracy................. 315
[[Page 5]]
67 Organization of the National Endowment for
Democracy............................... 323
SUBCHAPTER H--PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND
ESTATES
71 Protection and welfare of citizens and their
property................................ 328
72 Deaths and estates.......................... 331
SUBCHAPTER I--SHIPPING AND SEAMEN
89 Prohibitions on longshore work by U.S.
nationals............................... 340
SUBCHAPTER J--LEGAL AND RELATED SERVICES
91 Import controls............................. 349
92 Notarial and related services............... 349
93 Service on foreign state.................... 378
94 International child abduction............... 379
95 Implementation of torture convention in
extradition cases....................... 382
96 Accreditation of agencies and approval of
persons under the Intercountry Adoption
Act of 2000 (IAA)....................... 383
97 Issuance of adoption certificates and
custody delarations in Hague Convention
adoption cases.......................... 437
98 Intercountry adoption--Convention record
preservation............................ 440
99 Reporting on Convention and non-Convention
adoptions of emigrating children........ 441
SUBCHAPTER K--ECONOMIC AND OTHER FUNCTIONS
101 Economic and commercial functions........... 443
102 Civil aviation.............................. 444
103 Regulations for implementation of the
Chemical Weapons Convention and the
Chemical Weapons Convention
Implementation Act of 1998 on the taking
of samples and on enforcement of
requirements concerning recordkeeping
and inspections......................... 449
104 International trafficking in persons:
Interagency coordination of activities
and sharing of information.............. 456
SUBCHAPTER L [RESERVED]
SUBCHAPTER M--INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
120 Purpose and definitions..................... 458
121 The United States munitions list............ 466
122 Registration of manufacturers and exporters. 489
[[Page 6]]
123 Licenses for the export of defense articles. 492
124 Agreements, off-shore procurement and other
defense services........................ 507
125 Licenses for the export of technical data
and classified defense articles......... 519
126 General policies and provisions............. 525
127 Violations and penalties.................... 542
128 Administrative procedures................... 549
129 Registration and licensing of brokers....... 555
130 Political contributions, fees and
commissions............................. 559
SUBCHAPTER N--MISCELLANEOUS
131 Certificates of authentication.............. 565
132 Books, maps, newspapers, etc................ 565
133 Governmentwide requirements for drug-free
workplace (financial assistance)........ 565
134 Equal Access to Justice Act; implementation. 571
135 Uniform administrative requirements for
grants and cooperative agreements to
state and local governments............. 577
136 Personal property disposition at posts
abroad.................................. 604
138 New restrictions on lobbying................ 607
139 Irish peace process cultural and training
program................................. 619
140 Prohibition on assistance to drug
traffickers............................. 623
SUBCHAPTER O--CIVIL RIGHTS
141 Nondiscrimination in federally-assisted
programs of the Department of State--
effectuation of title VI of the Civil
Rights Act of 1964...................... 630
142 Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 639
143 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 652
144 Enforcement of non-discrimination on the
basis of handicap in programs or
activities conducted by the United
States Department of State.............. 657
145 Grants and agreements with institutions of
higher education, hospitals, and other
non-profit organizations................ 663
[[Page 7]]
146 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 691
SUBCHAPTER P--DIPLOMATIC PRIVILEGES AND IMMUNITIES
151 Compulsory liability insurance for
diplomatic missions and personnel....... 708
SUBCHAPTER Q--ENVIRONMENTAL PROTECTION
161 Regulations for implementation of the
National Environmental Policy Act (NEPA) 711
SUBCHAPTER R--ACCESS TO INFORMATION
171 Availability of information and records to
the public.............................. 724
172 Service of process; production or disclosure
of official information in response to
court orders, subpoenas, notices of
depositions, requests for admissions,
interrogatories, or similar requests or
demands in connection with Federal or
State litigation; expert testimony...... 743
SUBCHAPTER S--INTERNATIONAL AGREEMENTS
181 Coordination, reporting and publication of
international agreements................ 749
SUBCHAPTER T--HOSTAGE RELIEF
191 Hostage relief assistance................... 757
192 Victims of terrorism compensation........... 764
193 Benefits for hostages in Iraq, Kuwait, or
Lebanon................................. 775
SUBCHAPTER U--INTERNATIONAL COMMERCIAL ARBITRATION
194 Inter-American Commercial Arbitration
Commission rules of procedure........... 777
196 Thomas R. Pickering Foreign Affairs/Graduate
Foreign Affairs Fellowship Program...... 784
[[Page 9]]
SUBCHAPTER A_GENERAL
PART 1_INSIGNIA OF RANK--Table of Contents
Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
Sec. 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State
shall be as follows: On a blue rectangular field a white disk bearing
the official coat of arms of the United States adopted by the act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of blue and white to be added. The sizes to be in accordance with
military and naval customs.
[22 FR 10788, Dec. 27, 1957]
Sec. 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary
of State shall be as follows: On a white rectangular field a blue disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a five-
pointed star with one point upward. The colors and automobile flag to be
the same design, adding a blue fringe. For the colors a cord and tassel
of white in accordance with military and naval customs.
[38 FR 30258, Nov. 2, 1973]
Sec. 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries
of State shall be as follows: On a red rectangular field a white disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of white and red to be added. The sizes to be in accordance with
military and naval customs.
[38 FR 30258, Nov. 2, 1973]
PART 2_PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL--Table of Contents
Sec.
2.1 Designation of personnel to carry firearms and exercise appropriate
power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.
Sec. 2.1 Designation of personnel to carry firearms and exercise appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is
authorized to designate certain employees of the Department of State and
the Foreign Service, as well as employees of other departments and
agencies detailed to and under the supervision and control of the
Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when
engaged in the performance of the duties prescribed in section (1) of
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be
so designated unless he has either qualified in the use of firearms in
accordance with standards established by the Deputy Assistant Secretary
of State for Security, or in accordance with standards established by
the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in
the performance of duties prescribed in section (1) of the act of June
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and
deliver into custody any person violating the provisions of section 111
or 112 of title 18, United States Code, in their presence or if they
have reasonable grounds to believe that the person to be arrested has
[[Page 10]]
committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to an individual who has been
designated by the President to serve as Secretary of State, prior to his
appointment, or to a departing Secretary of State. In providing such
protection, they are authorized to exercise the authorities described in
paragraphs (a) (1) and (2) of section. Such protection shall be for the
period or periods determined necessary by the Under Secretary of State
for Management, except that in the case of a departing Secretary of
State, the period of protection under this paragraph shall in no event
exceed 30 calendar days from the date of termination of that
individual's incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to a departing United States
Representative to the United Nations. In providing such protection, they
are authorized to exercise the authorities described in paragraphs (a)
(1) and (2) of this section. Such protection shall be for the period or
periods determined necessary by the Under Secretary of State for
Management, except that the period of protection under this paragraph
shall in no event exceed 30 calendar days from the date of termination
of that individual's incumbency as United States Representative to the
United Nations.
(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658,
2666)
[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982;
50 FR 14379, Apr. 12, 1985]
Sec. 2.2 Purpose.
Section 1116(b)(2) of title 18 of the United States Code, as added
by Pub. L. 92-539, An Act for the Protection of Foreign Officials and
Official Guests of the United States (86 Stat. 1071), defines the term
``foreign official'' for purposes of that Act as ``any person of a
foreign nationality who is duly notified to the United States as an
officer or employee of a foreign government or international
organization, and who is in the United States on official business, and
any member of his family whose presence in the United States is in
connection with the presence of such officer or employee.'' Section
1116(c)(4) of the same Act defines the term ``official guest'' for the
purposes of that Act as ``a citizen or national of a foreign country
present in the United States as an official guest of the Government of
the United States pursuant to designation as such by the Secretary of
State.'' It is the purpose of this regulation to specify the officer of
the Department of State who shall be responsible for receiving
notification of foreign officials under the Act and determining whether
persons are ``duly notified'' to the United States and who shall be
responsible for processing official guest designations by the Secretary
of State.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24817, Nov. 22, 1972]
Sec. 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section
1116(b)(2) of Title 18 of the United States Code shall be directed by
the foreign government or international organization concerned to the
Chief of Protocol, Department of State, Washington, DC 20520. For
persons normally accredited to the United States in diplomatic or
consular capacities and also for persons normally accredited to the
United Nations and other international organizations and in turn
notified to the Department of State, the procedure for placing a person
in the statutory category of being ``duly notified to the United
States'' shall be the current procedure for accreditation, with
notification in turn when applicable. The Chief of the Office of
Protocol will place on the roster of persons ``duly notified to the
United States'' the names of all persons currently accredited and, when
applicable, notified in turn, and will maintain the roster as part of
the official files of the Department of State adding to and deleting
therefrom as changes in accreditations occur.
[[Page 11]]
(b) For those persons not normally accredited, the Chief of Protocol
shall determine upon receipt of notification, by letter from the foreign
government or international organization concerned, whether any person
who is the subject of such a notification has been duly notified under
the Act. Any inquiries by law enforcement officers or other persons as
to whether a person has been duly notified shall be directed to the
Chief of Protocol. The determination of the Chief of Protocol that a
person has been duly notified is final.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
Sec. 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons
designated by the Secretary of State as official guests. Any inquiries
by law enforcement officers or other persons as to whether a person has
been so designated shall be directed to the Chief of Protocol. The
designation of a person as an official guest is final. Pursuant to
section 2658 of title 22 of the U.S.C., the authority of the Secretary
of State to perform the function of designation of official guests is
hereby delegated to the Chief of Protocol.
(22 U.S.C. 2658)
[45 FR 55716, Aug. 21, 1980]
Sec. 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files
of the Department of State a cumulative roster of all persons who have
been duly notified as foreign officials or designated as official guests
under this part. The roster will reflect the name, position,
nationality, and foreign government or international organization
concerned or purpose of visit as an official guest and reflect the date
the person was accorded recognition as being ``duly notified to the
United States'' or designated as an official guest and the date, if any,
of termination of such status.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
PART 3_GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS--Table of Contents
Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for administration
of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more
than minimal value and reporting acceptance of travel or
travel expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing agency
for official use.
3.9 Disposal of gifts and decorations which become the property of the
United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of
restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in
cultural exchange programs from coverage of foreign gifts and
decorations legislation.
Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342
(1976).
Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.
Sec. 3.1 Purpose.
These regulations provide basic standards for employees of the
Department of State, the United States International Development
Cooperation Agency (IDCA), the Agency for International Development
(AID), and the International Communication Agency (USICA), their spouses
(unless separated) and their dependents to accept and retain gifts and
decorations from foreign governments.
Sec. 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of
1978 (91 Stat. 862-866), approved August 17, 1977,
[[Page 12]]
(hereafter referred to as ``the Act'') amended section 7342 of title 5,
U.S. Code (1976), making substantial changes in the law relating to the
acceptance and retention of gifts and decorations from foreign
governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe
regulations as necessary to carry out the new law.
Sec. 3.3 Definitions.
When used in this part, the following terms have the meanings
indicated:
(a) Employee means (1) an officer or employee of the Department,
AID, IDCA, or USICA, including an expert or consultant, however
appointed, and (2) a spouse (unless separated) or a dependent of such a
person, as defined in section 152 of the Internal Revenue Code of 1954
(26 U.S.C. 152).
(b) Foreign government means: (1) Any unit of foreign governmental
authority, including any foreign national, State, local, or municipal
government; (2) any international or multinational organization whose
membership is composed of any unit of foreign government as described in
paragraph (b)(1) of this section; (3) any agent or representative of any
such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a
decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia,
emblem or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the
time of acceptance of $100 or less, except that on January 1, 1981, and
at 3-year intervals thereafter, ``minimal value'' is to be redefined in
regulations prescribed by the Administrator of General Services, in
consultation with the Secretary of State, to reflect changes in the
consumer price index for the immediately preceding 3-year period.
Sec. 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise
encouraging the tender of a gift or decoration from a foreign
government. An employee is also prohibited from accepting a gift or
decoration from a foreign government, except in accordance with these
regulations.
(b) An employee may accept and retain a gift of minimal value
tendered and received as a souvenir or mark of courtesy, subject,
however, to the following restrictions--
(1) Where more than one tangible item is included in a single
presentation, the entire presentation shall be considered as one gift,
and the aggregate value of all items taken together must not exceed
``minimal value''.
(2) The donee is responsible for determining that a gift is of
minimal value in the United States at the time of acceptance. However,
should any dispute result from a difference of opinion concerning the
value of a gift, the employing agency will secure the services of an
outside appraiser to establish whether the gift is one of ``minimal
value''. If, after an appraisal has been made, it is established that
the value of the gift in question is $200 or more at retail in the
United States, the donee will bear the costs of the appraisal. If,
however, the appraised value is established to be less than $200, the
employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when
(1) such gift is in the nature of an educational scholarship or medical
treatment, or (2) it appears that to refuse the gift would likely cause
offense or embarrassment or otherwise adversely affect the foreign
relations of the United States, except that a tangible gift of more than
minimal value is deemed to have been accepted on behalf of the United
States and, upon acceptance, shall become the property of the United
States.
(d) An employee may accept gifts of travel or expenses for travel
taking place entirely outside the United States (such as transportation,
food, and lodging) of more than minimal value if such acceptance is
appropriate, consistent with the interests of the United States, and
permitted by the employing agency. Except where the employing agency has
specific interests which may be favorably affected by employee travel
wholly outside the
[[Page 13]]
United States, even though it would not normally authorize its employees
to engage in such travel, the standards normally applied to determine
when proposed travel will be in the best interests of the employing
agency and of the United States Government shall be applied in approving
acceptance of travel or travel expenses offered by a foreign government.
(1) There are two circumstances under which employees may accept
gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him
or her in the position of accepting travel or travel expenses offered by
a foreign government which are directly related to the authorized
purpose of the travel; or
(ii) When the employee's travel orders specifically anticipate the
acceptance of additional travel and travel expenses incident to the
authorized travel.
(2) When an employee is traveling under circumstances described in
paragraph (d)(1)(i) of this section, that is, without specific
instructions authorizing acceptance of additional travel expenses from a
foreign government, the employee must file a report with the employing
angency under the procedures prescribed in Sec. 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully
become the personal property of the donee, all supervisory officials
shall, in advising employees of their responsibilities under the
regulations, impress upon them their obligation to decline acceptance of
such gifts, whenever possible, at the time they are offered, or to
return them if they have been sent or delivered without a prior offer.
All practical measures, such as periodic briefings, shall be taken to
minimize the number of gifts which employees must deposit and which thus
become subject to disposal as provided by law and regulation. Employees
should not accept gifts of more than minimal value on the assumption
that refusal would be likely to ``cause offense or embarrassment or
otherwise adversely affect the foreign relations of the United States''.
In many instances it should be possible, by explanation of the
prohibition against an employee's retention of such gifts, to avoid
consequences of acceptance, including possible return of the gift to the
donor. Refusal of the gift at the inception should typically be regarded
as in the interest both of the foreign government donor and the U.S.
Government.
Sec. 3.5 Designation of officials and offices responsible for administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of
administration relative to the disposal of foreign gifts and decorations
which become U.S. Government property. Each agency is now responsible
for receiving from its employees deposits of foreign gifts of more than
minimal value, as well as of foreign decorations not meeting the
statutory criteria for retention by the recipient. The agency is also
responsible for disposing of this property by return to the donor, for
retaining it in the agency if official use of it is approved, for
reporting to the General Services Administration within 30 calendar days
after deposit items neither disposed of nor retained, and for assuming
custody, proper care and handling of such property pending removal from
that custody pursuant to disposal arrangements by the General Services
Administration. The Secretary of State, however, is made responsible for
providing guidance to other executive agencies in the development of
their own regulations to implement the Act, as well as for the annual
publication of lists of all gifts of more than minimal value deposited
by Federal employees during the preceding year. [See Sec. 3.5(c).]
Authority for the discharge of the Secretary's responsibilities is
delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary
responsibility for administration of the Act within the Department of
State. That Office will, however, serve as the depository only for those
foreign gifts and decorations which are turned in by State Department
employees. The Director of Personnel Services of the USICA will have
responsibility for administration of the Act within that agency and will
serve as the depository of foreign gifts and decorations. Employees of
the other
[[Page 14]]
foreign affairs agencies must deposit with their respective agencies any
gifts or decorations deposit of which is required by law.
(c) Any questions concerning the implementation of these regulations
or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the
Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and
Public Affairs; and
(4) For USICA, to the General Counsel.
Sec. 3.6 Procedure to be followed by employees in depositing gifts of more than minimal value and reporting acceptance of travel or travel expenses.
(a) An employee who has accepted a tangible gift of more than
minimal value shall, within 60 days after acceptance, relinquish it to
the designated depository office for the employing agency for disposal
or, with the approval of that office, deposit it for official use at a
designated location in the employing agency or at a specified Foreign
Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of
Management Planning in AID;
(3) For AID, the General Services Division of the Office of
Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal
value for disposal or for official use pursuant to paragraph (a) of this
section, or within 30 days after accepting a gift of travel or travel
expenses as provided in Sec. 3.4(d) (unless the gift of such travel or
travel expenses has been accepted in accordance with specific
instructions from the Department or agency), the employee shall file a
statement with the designated depository office with the following
information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance;
(iii) The identity of the foreign government and the name and
position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee's best estimate in specific dollar terms of the value
of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State
Department employees, forms for this purpose are available in the Office
of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance; and
(iii) The identity of the foregign government and the name and
position of the individual who presented the gift.
(c) The information contained in the statements called for in
paragraph (b) of this section is needed to comply with the statutory
requirement that, not later than Janaury 31 of each year, the Secretary
of State publish in the Federal Register a comprehensive listing of all
such statements filed by Federal employees concerning gifts of more than
minimal value received by them during the preceding year.
Sec. 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in
time of combat operations or awarded for other outstanding or unusually
meritorious performance may be accepted, retained, and worn by an
employee, subject to the approval of the employing agency. Without such
approval, the decoration is deemed to have been accepted on behalf of
the United States and, like tangible gifts of more than minimal value,
must be deposited by the employee with the designated depository office
for the employing agency within sixty days after acceptance, for
retention for official use or for disposal in accordance with Sec. 3.9.
[[Page 15]]
(b) The decision as to whether a decoration has been awarded for
outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant
Secretary of State or comparable official, except that, in the case of a
decoration awarded to an Assistant Secretary or other officer of
comparable or higher rank, the decision shall be made by the Office of
Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General
Counsel, or the Director of the Office of Congressional and Public
Liaison (for domestic employees), and by the Director of Area Offices
(for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign
government, preferably in the form of a citation which shows the
specific basis for the tender of the award, should be supplied. An
employee who has received or been tendered a decoration should forward
to the designated depository office of the employing agency a request
for review of the case. This request should contain a statement of
circumstances of the award and such documentation from the foreign
government as has accompanied it. The depository office will obtain the
decision of the cognizant office as to whether the award meets the
statutory criteria and thus whether the decoration may be retained and
worn. Pending receipt of that decision, the decoration should remain in
the custody of the recipient.
Sec. 3.8 Approval of retention of gifts or decorations with employing agency for official use.
(a) At the request of an overseas post or an office within the
employing agency, a gift or decoration deemed to have been accepted on
behalf of the United States may be retained for official use. Such
retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID's Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
However, to qualify for such approval, the gift or decoration should be
an item which can be used in the normal conduct of agency business, such
as a rug or a tea service, or an art object meriting display, such as a
painting or sculpture. Personal gift items, such as wristwatches,
jewelry, or wearing apparel, should not be regarded as suitable for
``official use''. Only under unusual circumstances will retention of a
decoration for official use be authorized. Every effort should be made
to place each ``official use'' item in a location that will afford the
largest number of employees, and, if feasible, members of the public,
the maximum opportunity to receive the benefit of its display, provided
the security of the location is adequate.
(b) Items approved for official use must be accounted for and
safeguarded as Federal property at all times under standard Federal
property management procedures. Within 30 days after the official use of
a gift has been terminated, the gift or decoration shall be deposited
with the designated depository office of the employing agency to be held
pending completion of disposal arrangements by the General Services
Administration.
Sec. 3.9 Disposal of gifts and decorations which become the property of the United States.
(a) Gifts and decorations which have been reported to an employing
agency shall either be returned to the donor or kept in safe storage
pending receipt of instructions from the General Services Administration
for transfer, donation or other disposal under the provisions of the
Federal Property and Administrative Services Act of 1949, 63 Stat. 377,
as amended, and the Federal Property Management Regulations (41 CFR part
101-49). The employing agency shall examine each gift or decoration and
the circumstances surrounding its donation and assess whether any
adverse effect upon the foreign relations of the United States might
result from a return of the gift (or decoration) to the donor, which
shall be the preferred
[[Page 16]]
means of disposal. If this is not deemed feasible, the employing agency
is required by GSA regulations to report deposit of the gift or
decoration within 30 calendar days, using Standard Form 120, Report of
Excess Personal Property and, as necessary, Standard Form 120A,
Continuation Sheet, and citing section 7342 of title 5, U.S. Code
(1976), on the reporting document. Such reports shall be submitted to
the General Services Administration, Washington National Capital Region
(WDPO), Attention: Federal Property Resources Service, Seventh and D
Streets, SW., Washington, DC 20407.
(b) No gift or decoration deposited with the General Services
Administration for disposal may be sold without the approval of the
Secretary of State, upon a determination that the sale will not
adversely affect the foreign relations of the United States. When
depositing gifts or decorations with the designated depository office of
their employing agency, employees may indicate their interest in
participating in any subsequent sale of the items by the Government.
Before gifts and decorations may be considered for sale by the General
Services Administration, however, they must first have been offered for
transfer to Federal agencies and for donation to the States.
Consequently, employees should understand that there is no assurance
that an item will be offered for sale, or, if so offered, that it will
be feasible for an employee to participate in the sale. Employees are
reminded in this connection that the primary aim of the Act is to
discourage employees' acceptance of gifts of more than minimal value.
Sec. 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting
to the Attorney General cases in which there is reason to believe that
one of its employees has violated the Act. The Attorney General in turn
may file a civil action in any United States District Court against any
Federal employee who has knowingly solicited or accepted a gift from a
foreign government in violation of the Act, or who has failed to deposit
or report such gift, as an Act required by the Act. In such case, the
court may assess a maximum penality of the retail value of a gift
improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies
shall be responsible for providing periodic reorientation of all
employees under their supervision on the basic features of the Act and
these regulations, and for ensuring that those employees observe the
requirements for timely reporting and deposit of any gifts of more than
minimal value they may have accepted.
(c) Employees are advised of the following actions which may result
from failure to comply with the requirements of the Act and these
regulations:
(1) Any supervisor who has substantial reason to believe that an
employee under his or her supervision has violated the reporting or
other compliance provisions of the Act shall report the facts and
circumstances in writing to the senior official in charge of
administration within the cognizant bureau or office or at the post
abroad. If that official upon investigation decides that an employee who
is the donee of a gift or is the recipient of travel or travel expenses
has, through actions within the employee's control, failed to comply
with the procedures established by the Act and these regulations, the
case shall be referred to the Attorney General for appropriate action.
(2) In cases of confirmed evidence of a violation, whether or not
such violation results in the taking of action by the Attorney General,
the senior administrative official referred to in paragraph (c)(1) of
this section as responsible for forwarding a violation report to the
Attorney General shall institute appropriate disciplinary action against
an employee who has failed to (i) Deposit tangible gifts within 60 days
after acceptance, (ii) account properly for the acceptance of travel
expenses or (iii) comply with the Act's requirements respecting disposal
of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but
no evidence that the violation was willful on the part of the employee,
the senior administrative official referred to in paragraph (c)(1) of
this section shall institute appropriate disciplinary action of a lesser
degree than that called for in
[[Page 17]]
paragraph (c)(2) of this section in order to deter future violations by
the same or another employee.
Sec. 3.11 Responsibility of chief of mission to inform host government of restrictions on employees' receipt of gifts and decorations.
A special provision of the Act requires the President to direct
every chief of a United States diplomatic mission to inform the host
government that it is a general policy of the United States Government
to prohibit its employees from receiving gifts of more than minimal
value or decorations that have not been tendered ``in recognition of
active field service in time of combat operations or awarded for other
outstanding or unusually meritorious performance.'' Accordingly, all
Chiefs of Mission shall in January of each year conduct a thorough and
explicit program of orientation aimed at appropriate officials of the
host government concerning the operation of the Act.
Sec. 3.12 Exemption of grants and other foreign government assistance in cultural exchange programs from coverage of foreign gifts and decorations
legislation.
The Act specifically excludes from its application grants and other
forms of assistance ``to which section 108A of the Mutual Educational
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and
(b) for the terms and conditions under which Congress consents to the
acceptance by a Federal employee of grants and other forms of assistance
provided by a foreign government to facilitate the participation of such
employee in a cultural exchange.
PART 3a_ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF THE UNIFORMED SERVICES--Table of Contents
Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government
employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.
Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as
amended, 63 Stat. 111 (22 U.S.C. 2658).
Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.
Sec. 3a.1 Definitions.
For purposes of this part--
(a) Applicant means any person who requests approval under this part
to accept any civil employment (and compensation therefor) from a
foreign government and who is: (1) Any retired member of the uniformed
services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public
Health Service.
The term ``applicant'' also includes persons described in paragraph
(a)(1), (2), or (3) of this section, who have already accepted foreign
government employment and are requesting approval under this part to
continue such employment.
(b) Uniformed services means the Armed Forces, the commissioned
Regular and Reserve Corps of the Public Health Service, and the
commissioned corps of the National Oceanic and Atmospheric
Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with
respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of
the Navy and the Marine Corps, members of the Navy and Marine Corps
Reserves, and retired members of the Coast Guard and members of the
Coast Guard Reserve when the Coast Guard is operating as a service in
the Navy;
(3) The Secretary of the Air Force, with respect to retired members
of the Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members
of the Coast Guard and members of the Coast
[[Page 18]]
Guard Reserve when the Coast Guard is not operating as a service in the
Navy;
(5) The Secretary of Commerce, with respect to retired members of
the commissioned corps of the National Oceanic and Atmospheric
Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to
retired members of the commissioned Regular Corps of the Public Health
Service and members of the commissioned Reserve Corps of the Public
Health Service.
Sec. 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, section 9, clause 8)
prohibits the acceptance of civil employment with a foreign government
by an officer of the United States without the consent of Congress.
Congress has consented to the acceptance of civil employment (and
compensation therefor) by any person described in Sec. 3a.1(b) subject
to the approval of the Secretary concerned and the Secretary of State
(37 U.S.C. 801, Note). Civil employment with a foreign government may
not be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment
with a foreign government by any officer of the United States other than
a person described in Sec. 3a.1(a). The acceptance of employment with a
foreign government by any other officer of the United States remains
subject to the constitutional prohibition described in paragraph (a) of
this section.
(c) Any person described in Sec. 3a.1(a) who accepts employment
with a foreign government without the approval required by this section
or otherwise obtaining the consent of Congress is subject to forfeiture
of retired pay to the extent of his or her compensation from the foreign
government, according to the Comptroller General of the United States
(44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other
penalty which may be imposed under law or regulation. \1\
---------------------------------------------------------------------------
\1\ Approval under this part does not constitute an exception to the
provisions of the Immigration and Nationality Act concerning loss of
United States citizenship, for example, by becoming a citizen of or
taking an oath of allegiance to another country. See 8 U.S.C. 1481 et
seq.
---------------------------------------------------------------------------
Sec. 3a.3 Authority to approve or disapprove proposed foreign government employment.
The Director, Bureau of Politico-Military Affairs, is authorized to
approve or disapprove any request by an applicant for approval under
this part to accept civil employment (and compensation therefor) from a
foreign government. The Director may delegate this authority within the
Bureau of Politico-Military Affairs, Department of State.
Sec. 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign
government employment to the Secretary concerned, whose approval is also
required by law for the applicant's acceptance of civil employment from
a foreign government. The request must contain information concerning
the applicant's status, the nature of the proposed employment in as much
detail as possible, the identity of and relationship to the foreign
government concerned, and other matters as may be required by the
Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to
the Director, Bureau of Politico-Military Affairs, for approval.
Requests received by the Director, Bureau of Politico-Military Affairs,
directly from an applicant will be initially forwarded to the Secretary
concerned, or his designee, for approval of disapproval.
Sec. 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs,
under this part shall be based on whether the applicant's proposed
employment with a foreign government would adversely affect the foreign
relations of the United States, in light of the applicant's official
status as a retiree or reservist.
[[Page 19]]
Sec. 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the
Secretary concerned when an applicant's proposed foreign government
employment is approved. Notification of approval to the applicant will
be made by the Secretary concerned or his designee.
Sec. 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify
the applicant directly when an applicant's proposed foreign employment
is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include
a statement of the reasons for the disapproval, with as much specificity
as security and foreign policy considerations permit, together with a
notice of the applicant's right to seek reconsideration of the
disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an
applicant whose request has been disapproved may submit a request for
reconsideration by the Director, Bureau of Politico-Military Affairs. A
request for reconsideration should provide information relevant to the
reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of
Politico-Military Affairs, will be final, unless a timely request for
reconsideration is received. In the event of a request for
reconsideration, the Director, Bureau of Politico-Military Affairs, will
make a final decision after reviewing the record of the request. A final
decision after reconsideration to approve the applicant's proposed
employment with a foreign government will be communicated to the
Secretary concerned as provided in Sec. 3a.6. A final decision after
reconsideration to disapprove the applicant's proposed employment with a
foreign government will be communicated directly to the applicant as
provided in paragraph (a) of this section and the Secretary concerned
will be informed. The Director's authority to make a final decision
after reconsideration may not be redelegated.
Sec. 3a.8 Change in status.
In the event that an applicant's foreign government employment
approved under this part is to be materially changed, either by a
substantial change in duties from those described in the request upon
which the original approval was based, or by a change of employer, the
applicant must obtain further approval in accordance with this part for
such changed employment.
PART 4_NOTIFICATION OF FOREIGN OFFICIAL STATUS--Table of Contents
Sec.
4.1 General.
4.2 Procedure.
Authority: 22 U.S.C. 2651a(a)(4).
Source: 61 FR 32328, June 24, 1996, unless otherwise noted.
Sec. 4.1 General.
In accordance with Article 10 of the Vienna Convention on Diplomatic
Relations and Article 24 of the Vienna Convention on Consular Relations,
diplomatic missions must notify the Office of Protocol immediately upon
the arrival, in the United States, of any foreign government officer or
employee (including domestics and family members), who are serving at
diplomatic missions, consular posts, or miscellaneous foreign government
offices. If the employee is already in the United States in some other
capacity, the notification should be made upon assumption of duties.
This initial notification requirement also includes all U.S. citizens
and permanent resident aliens who are employed by foreign missions.
Sec. 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents:
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer
and Career Consular Officer;
(b) All other foreign government employees who are serving at
diplomatic missions, consular posts, or miscellaneous foreign government
offices and
[[Page 20]]
their dependents: Form DSP-111, Notification of Appointment of Foreign
Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of
Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State
of any change in the status of officers or employees of the missions and
their family members originally reported to Protocol, or to apply for an
identification card.
(e) Upon termination of employment of any diplomatic or consular
officer, honorary consular officer, embassy or consular employee, or
miscellaneous foreign government staff member, a Form DSP-115, Notice of
Termination of Diplomatic, Consular, or Foreign Government Employment,
must be submitted to the Office of Protocol.
PART 5_ORGANIZATION--Table of Contents
Sec.
5.1 Introduction.
5.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may
secure information, make submittals, or request, or obtain
decisions; and statements of the general course and method by
which its functions are channeled and determined.
5.3 Rules of procedure, description of forms available or the places at
which forms may be obtained, and instructions as to the scope
and content of all papers, reports, or examinations.
5.4 Substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretation of
general applicability formulated and adopted by the agency.
Authority: Sec. 4, 63 Stat. 111, as amended, sec. 501, 65 Stat. 290;
22 U.S.C. 2658, 31 U.S.C. 483a, 5 U.S.C. 552, E.O. 10501; 18 FR 7049; 3
CFR, 1949-1953 Comp., page 979.
Source: 33 FR 7078, May 11, 1968, unless otherwise noted.
Sec. 5.1 Introduction.
The sections in this part 5 are issued pursuant to section 3 of the
Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.
Sec. 5.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may secure information, make submittals, or request, or obtain decisions; and statements of
the general course and method by which its functions are
channeled and determined.
(a) The following statements of the central and field organization
of the Department of State and its Foreign Service posts are hereby
prescribed:
(1) The central organization of the Department of State was issued
as Public Notice No. 267, 32 FR 8923, June 22, 1967.
(2) The foreign field organization of the Department of State was
issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.
(3) The domestic field organization of the Department of State was
issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.
(b) As used in the following sections, the term ``Department of
State'' includes all offices within the Department in Washington, its
domestic field offices in the United States, all Foreign Service posts
throughout the world, and U.S. missions to international organizations
unless otherwise specified.
(c) Any person desiring information concerning a matter handled by
the Department of State, or any person desiring to make a submittal or
request in connection with such a matter, should communicate either
orally or in writing with the appropriate office. If the office
receiving the communication does not have jurisdiction to handle the
matter, the communication, if written, will be forwarded to the proper
office, or, if oral, the person will be advised how to proceed. When the
submittal or request consists of a formal application for one of the
documents, privileges, or other benefits provided for in the laws
administered by the Department of State, or in the regulations
implementing these laws, the instructions on the form as to preparation
and place of submission should be followed. In such cases, the
provisions of this part referring to the particular regulation concerned
should be consulted.
[[Page 21]]
Sec. 5.3 Rules of procedure, description of forms available or the places at which forms may be obtained, and instructions as to the scope and content of all
papers, reports, or examinations.
Rules of procedure regarding the following listed matters may be
consulted under the corresponding regulations referenced in Sec. 5.4,
or obtained upon application to the offices listed below. Forms
pertaining to the following listed matters, and instructions relating
thereto may also be obtained at the offices indicated below:
----------------------------------------------------------------------------------------------------------------
Subject matter Office Address
----------------------------------------------------------------------------------------------------------------
Appointment of Foreign Service Officers.. Board of Examiners for the Department of State, Room 7314, 1800 N.
Foreign Service. Kent St., Arlington, Va. 22209.
Authentication and other services........ Document and Reference Department of State, Room 2815, 22d and
Division. D Sts. NW., Washington, DC 20520.
Claims and stolen property............... Legal Adviser.............. Department of State, 2201 C Street NW.,
Washington, DC 20520.
International educational and cultural Bureau of Educational and Department of State, 2201 C Street NW.,
exchange program. Cultural Affairs. Washington, DC 20520.
International traffic in arms............ Office of Munitions Control Department of State, Room 800, 1700 N.
Lynn St., Arlington, Va. 22209.
Nationality and passports................ Passport Office............ Department of State, Room 362, 1425 K
St., NW., Washington, DC 20524.
Protection and welfare of U.S. citizens, Office of Special Consular Department of State, 2201 C Street NW.,
shipping and seamen, and other consular Services. Washington, DC 20520.
services abroad.
Visa issuance............................ Visa Office................ Department of State, Annex 2, 515 22d
Street NW., Washington, DC 20520.
----------------------------------------------------------------------------------------------------------------
Sec. 5.4 Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretation of general applicability
formulated and adopted by the agency.
(a) The regulations of the Department of State required to be
published under the provisions of the Administrative Procedure Act are
found in the Code of Federal Regulations and the Federal Register. Any
person desiring information with respect to a particular procedure
should examine the pertinent regulation cited hereafter.
(b) The following are citations to regulations within the scope of
this section.
(1) Acceptance of Gifts and Decorations from Foreign Governments. 22
CFR part 3 et seq.
(2) Employee Responsibility and Conduct. 22 CFR part 10 et seq.
(3) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(4) Fees for Services in the United States, fees and Charges,
Foreign service. 22 CFR part 21 et seq.; 22 CFR part 22 et seq.
(5) Claims and Stolen Property. 22 CFR part 31 et seq.
(6) Issuance of Visas. 22 CFR parts 41-42 et seq.
(7) Nationality and Passports. 22 CFR part 50 et seq.
(8) International Educational and Cultural Exchanges. 22 CFR part 61
et seq.
(9) Protection and Welfare of Americans Abroad. 22 CFR part 71 et
seq.
(10) Shipping and Seamen Abroad. 22 CFR part 81 et seq.
(11) Other Consular Services Abroad. 22 CFR part 91 et seq.
(12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR
part 101 et seq.
(13) International Traffic in Arms. 22 CFR part 121 et seq.
(14) Certificates of Authentication. 22 CFR part 131 et seq.
(15) Civil Rights. 22 CFR part 141 et seq.
(16) Department of State Procurement. 41 CFR part 6-1 et seq.
(c) These regulations are supplemented from time to time by
amendments appearing initially in the Federal Register.
PART 7_BOARD OF APPELLATE REVIEW--Table of Contents
Sec.
7.1 Definitions.
[[Page 22]]
7.2 Establishment of Board of Appellate Review; purpose.
7.3 Jurisdiction.
7.4 Membership and organization.
7.5 Procedures.
7.6 Hearings.
7.7 Passport cases.
7.8 South African Fair Labor Standards cases.
7.9 Decisions.
7.10 Motion for reconsideration.
7.11 Computation of time.
7.12 Attorneys.
Authority: Sec. 1, 44 Stat. 887, sec. 4, 63 Stat. 111, as amended,
22 U.S.C. 211a, 2658; secs. 104, 360, 66 Stat. 174, 273, 8 U.S.C. 1104,
1503; E.O. 11295, 36 FR 10603; 3 CFR 1966-1970 Comp., page 507; 22 CFR
60-65; E.O. 12532, 50 FR 36861 7.4 also issued under 22 U.S.C. 3926.
Source: 44 FR 68825, Nov. 30, 1979, unless otherwise noted.
Sec. 7.1 Definitions.
(a) Board means the Board of Appellate Review or the panel of three
members considering an appeal.
(b) Department means the Department of State.
(c) Party means the appellant or the Department of State.
Sec. 7.2 Establishment of Board of Appellate Review; purpose.
(a) There is hereby established the Board of Appellate Review of the
Department of State to consider and determine appeals within the purview
of Sec. 7.3. The Board shall take any action it considers appropriate
and necessary to the disposition of cases appealed to it.
(b) For administrative purposes, the Board shall be part of the
Office of the Legal Adviser. The merits of appeals or decisions of the
Board shall not be subject to review by the Legal Adviser or any other
Department official, except that the Department may administratively
vacate a Certificate of Loss of Nationality on its own initiative at any
time, notwithstanding an intervening decision by the Board sustaining
the Department's original determination.
[44 FR 68825, Nov. 30, 1979, as amended at 56 FR 55457, Oct. 28, 1991]
Sec. 7.3 Jurisdiction.
The jurisdiction of the Board shall include appeals from decisions
in the following cases:
(a) Appeals from administrative determinations of loss of
nationality or expatriation under subpart C of part 50 of this chapter.
(b) Appeals from administrative decisions denying, revoking,
restricting or invalidating a passport under Sec. Sec. 51.70 and 51.71
of this chapter.
(c) Appeals from final decisions of contracting officers arising
under contracts or grants of the Department of State, not otherwise
provided for in the Department of State contract appeal regulations
(part 6-60 of title 41).
(d) Appeals from administrative determinations under Sec. 64.1(a)
of this chapter, denying U.S. Government assistance to U.S. nationals
who do not comply with the Fair Labor Standards in Sec. 61.2 of this
chapter.
(e) Appeals from administrative decisions of the Department of State
in such other cases and under such terms of reference as the Secretary
of State may authorize.
[44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986]
Sec. 7.4 Membership and organization.
(a) Membership. The Board shall consist of regular and ad hoc
members as the Legal Adviser may designate. Regular members shall serve
on a fulltime basis. Ad hoc members may be designated from among senior
officers of the Department of State or from among persons not employed
by the Department. Regular and ad hoc members shall be attorneys in good
standing admitted to practice in any State of the United States, the
District of Columbia, or any Territory or possession of the United
States.
(b) Chairperson. The Legal Adviser shall designate a regular member
of the Board as chairperson. A member designated by the chairperson
shall act in the absence of the chairperson. The chairperson or designee
shall preside at all proceedings before the Board, regulate the conduct
of such proceedings, and pass on all issues relating thereto.
(c) Composition. In considering an appeal, the Board shall act
through a panel of three members, not more than two of whom shall be ad
hoc members.
(d) Rules of procedure. The Board may adopt and promulgate rules of
procedure approved by the Secretary of
[[Page 23]]
State as may be necessary to govern its proceedings.
(22 U.S.C. 2658 and 3926)
[44 FR 68825, Nov. 30, 1979, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 7.5 Procedures.
(a) Filing of appeal. A person who has been the subject of an
adverse decision in a case falling within the purview of Sec. 7.3 shall
be entitled upon written request made within the prescribed time to
appeal the decision to the Board. The appeal shall be in writing and
shall state with particularity reasons for the appeal. The appeal may by
accompanied by a legal brief. An appeal filed after the prescribed time
shall be denied unless the Board determines for good cause shown that
the appeal could not have been filed within the prescribed time.
(b) Time limit on appeal. (1) A person who contends that the
Department's administrative determination of loss of nationality or
expatriation under subpart C of part 50 of this chapter is contrary to
law or fact, shall be entitled to appeal such determination to the Board
upon written request made within one year after approval by the
Department of the certificate of loss of nationality or a certificate of
expatriation.
(2) A person who has been subject of an adverse decision under Sec.
51.89, of this Chapter shall be entitled to appeal the decision to the
Board upon written request made within 60 days after receipt of notice
of such decision.
(3) A national who has been subject of an adverse decision under
Sec. 64.1(a) of this chapter shall be entitled to appeal the decision
to the Board within 30 days after receipt of notice of such decision.
(4) Time limits for other appeals shall be established by the Board
as appropriate.
(c) Department case record. Upon the written request of the Board,
the office or bureau in the Department of State responsible for the
decision from which the appeal was taken shall assemble and transmit to
the Board within 45 days the record on which the Department's decision
in the case was based. The case record may be accompanied by a
memorandum setting forth the position of the Department on the case.
(d) Briefs. Briefs in support of or in opposition to an appeal shall
be submitted in triplicate to the Board. The appellant shall submit his
or her brief within 60 days after filing of the appeal. The Department
shall then file a brief within 60 days after receipt of a copy of
appellant's brief. Reply briefs, if any, shall be filed within 30 days
after the date the Department's brief is filed with the Board. Extension
of time for submission of a reply brief may be granted by the Board for
good cause shown. Posthearing briefs may be submitted upon such terms as
may be agreed to by the parties and the presiding member of the Board at
the conclusion of a hearing.
(e) Hearing. An appellant shall be entitled to a hearing upon
written request to the Board. An appellant may elect to waive a hearing
and submit his or her appeal for decision on the basis of the record
before the Board.
(f) Pre-hearing conference. Whether there is a hearing before the
Board on an appeal or whether an appeal is submitted for decision on the
record without a hearing the Board may call upon the parties to appear
before a member of the Board for a conference to consider the
simplification or clarification of issues and other matters as may aid
in the disposition of the appeal. The results of the conference shall be
reduced to writing by the presiding Board member, and this writing shall
constitute a part of the record.
(g) Admissibility of evidence. Except as otherwise provided in Sec.
7.7 and Sec. 7.8, the parties may introduce such evidence as the Board
deems proper. Formal rules of evidence shall not apply, but reasonable
restrictions shall be imposed as to the relevancy, competency and
materiality of evidence presented.
(h) Depositions. The Board may, upon the written request of either
party or upon agreement by the parties, permit the taking of the
testimony of any person by deposition upon oral examination or written
interrogatories for use as evidence in the appeal proceedings. The
deponent shall be subject to cross-examination either by oral
examination or by written interrogatories by the opposing party or by
the Board.
[[Page 24]]
Leave to take a deposition shall not be granted unless it appears
impracticable to require the deponent's testimony at the hearing on the
appeal, or unless the taking of a deposition is deemed to be warranted
for other valid reasons.
(i) Record of proceedings. The record of proceedings before the
Board shall consist of the Department's case record, briefs and other
written submissions of the parties, the stipulation of facts, if any,
the evidence admitted, and the transcript of the hearing if there is a
hearing. The record shall be available for inspection by the parties at
the Office of the Board.
(j) Scope of review. Except as otherwise provided in Sec. Sec. 7.7
and 7.8, the Board shall review the record in the case before it. The
Board shall not consider argument challenging the constitutionality of
any law or of any regulation of the Department of State or take into
consideration any classified or administratively controlled material.
(k) Appearance before the Board. Any party to any proceeding before
the Board is entitled to appear in person or by or with his or her
attorney, who must possess the requisite qualifications, set forth in
Sec. 7.12, to practice before the Board.
(l) Failure to prosecute an appeal. Whenever the record discloses
the failure of an appellant to file documents required by these
regulations, respond to notices or correspondence from the Board, or
otherwise indicates an intention not to continue the prosecution of an
appeal, the Board may in its discretion terminate the proceedings
without prejudice to the later reinstatement of the appeal for good
cause shown.
[44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986;
52 FR 41560, Oct. 29, 1987]
Sec. 7.6 Hearings.
(a) Notice and place of hearing. The parties shall be given at least
15 days notice in writing of the scheduled date and place of a hearing
on an appeal. The Board shall have final authority to fix or change any
hearing date giving consideration to the convenience of the parties.
Hearings shall be held at the Department of State, Washington, DC,
unless the Board determines otherwise.
(b) Conduct of hearing. The appellant may appear and testify on his
own behalf. The parties may present witnesses, offer evidence and make
argument. The appellant and witnesses may be examined by any member of
the Board, by the Department, and by the appellant's attorney, if any.
If any witness whom the appellant or the Department wishes to call is
unable to appear personally, the Board in its discretion, may accept an
affidavit by the witness or grant leave to take the deposition of such
witness. Any such witness will be subject to cross examination by means
of sworn responses to interrogatories posed by the opposing party. The
appellant and the Department shall be entitled to be informed of all
evidence before the Board and of the source of such evidence, and to
confront and cross-examine any adverse witness. The Board may require a
stipulation of facts prior to or at the beginning of the hearing and may
require supplemental statements on issues presented to it, or
confirmation, verification or authentication of any evidence submitted
by the parties. The parties shall be entitled to reasonable continuances
upon request for good cause shown.
(c) Privacy of hearing. The hearing shall be private unless an
appellant requests in writing that the hearing be open to the public.
Attendance at the hearing shall be limited to the appellant, attorneys
of the parties, the members of the Board, Department personnel who are
directly involved in the presentation of the case, official
stenographers, and the witnesses. Witnesses shall be present at the
hearing only while they are giving testimony or when otherwise directed
by the Board.
(d) Transcript of hearing. A complete verbatim transcript shall be
made of the hearing by a qualified reporter, and the transcript shall
constitute a permanent part of the record. Upon request, the appellant
shall have the right to inspect the complete transcript and to purchase
a copy thereof.
(e) Nonappearance of a party. The unexcused absence of a party at
the time and place set for a hearing shall not be occasion for delay. In
the event of such absence, the case will be regarded as
[[Page 25]]
having been submitted by the absent party on the record before the
Board.
[44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11, 1988]
Sec. 7.7 Passport cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for Consular Affairs denying, revoking,
restricting, or invalidating a passport under Sec. Sec. 51.70 and 51.71
of this chapter, the Board's review, except as provided in paragraph (b)
of this section, shall be limited to the record on which the Assistant
Secretary's decision was based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented at the hearing held under
Sec. Sec. 51.81-51.89 of this chapter unless it is satisfied that such
evidence or testimony was not available or could not have been
discovered by the exercise of reasonable diligence prior to such
hearing.
[44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11, 1988]
Sec. 7.8 South African Fair Labor Standards cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for African Affairs denying assistance to U.S.
nationals operating in South Africa which do not comply with the Fair
Labor Standards outlined in Sec. 61.2 of the chapter, the Board's
review except as provided in paragraph (b) of this section shall be
limited to the record on which the Assistant Secretary's decision was
based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented pursuant to Sec. 63.3(a)
or Sec. 63.3(b) of this chapter unless it is satisfied that such
evidence was not available or could not have been discovered by the
exercise of reasonable diligence prior to entry of the decision of the
Assistant Secretary for African Affairs.
[51 FR 15319, Apr. 23, 1986, as amended at 52 FR 41560, Oct. 29, 1987;
53 FR 39589, Oct. 11, 1988]
Sec. 7.9 Decisions.
The Board shall decide the appeal on the basis of the record of the
proceedings. The decision shall be by majority vote in writing and shall
include findings of fact and conclusions of law on which it is based.
The decision of the Board shall be final, subject to Sec. Sec. 7.2(b)
and 7.10. Copies of the Board's decision shall be forwarded promptly to
the parties.
[56 FR 55457, Oct. 28, 1991]
Sec. 7.10 Motion for reconsideration.
The Board may entertain a motion for reconsideration of a Board's
decision, if filed by either party. The motion shall state with
particularity the grounds for the motion, including any facts or points
of law which the filing party claims the Board has overlooked or
misapprehended, and shall be filed within 30 days from the date of
receipt of a copy of the decision of the Board by the party filing the
motion. Oral argument on the motion shall not be permitted. However, the
party in opposition to the motion will be given opportunity to file a
memorandum in opposition to the motion within 30 days of the date the
Board forwards a copy of the motion to the party in opposition. If the
motion to reconsider is granted, the Board shall review the record, and,
upon such further reconsideration, shall affirm, modify, or reverse the
original decision of the Board in the case.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
Sec. 7.11 Computation of time.
In computing the period of time for taking any action under this
part, the day of the act, event, or notice from which the specified
period of time begins to run shall not be included. The last day of the
period shall be included, unless it falls on a Saturday, Sunday, or a
legal holiday, in which event the period shall extend to the end of the
next day which is not a Saturday, Sunday, or a legal holiday. The Board
for good cause shown may in its discretion enlarge the time prescribed
by this part for the taking of any action.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
[[Page 26]]
Sec. 7.12 Attorneys.
(a) Attorneys at law who are admitted to practice in any State of
the United States, the District of Columbia, or any Territory or
possession of the United States, and who are members of the Bar in good
standing, may practice before the Board unless disqualified under
paragraph (b) of this section or for some other valid reason.
(b) No attorney shall be permitted to appear before the Board as
attorney representing an appellant if he or she is subject to the
conflict of interest provisions of chapter 11 of title 18 of the United
States Code.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
PART 8_ADVISORY COMMITTEE MANAGEMENT--Table of Contents
Sec.
8.1 Authorities.
8.2 Policy.
8.3 Scope.
8.4 Definitions.
8.5 Creation of a committee.
8.6 Membership.
8.7 Security.
8.8 Chartering of committees.
8.9 Meetings of advisory committees.
8.10 Reports.
8.11 Records.
8.12 Financial records.
8.13 Availability of records.
8.14 Public inquiries.
Authority: 22 U.S.C. 2658; sec. 8(a) Federal Advisory Committee Act
(Pub. L. 92-463); E.O. 11769; and OMB Circular A-63, Rev.
Source: 40 FR 28606, July 8, 1975, unless otherwise noted.
Sec. 8.1 Authorities.
(a) Regulatory authorities. (1) These regulations are issued to
implement the Federal Advisory Committee Act, Pub. L. 92-463, which
became effective January 5, 1973, and Office of Management and Budget
Circular No. A-63 of March 27, 1974. These regulations also are in
accordance with Executive Order 11769 of February 21, 1974, and the
responsibilities of the Secretary of State under 22 U.S.C. 2656.
(2) These regulations apply to any advisory committee which provides
advice to the Department of State or any officer of the Department.
However, to the extent that an advisory committee is subject to
particular statutory provisions, which are inconsistent with the Federal
Advisory Committee Act, these regulations do not apply.
(b) Delegated authority. (1) The Deputy Under Secretary for
Management has been designated by the Secretary (Delegation of Authority
No. 125 signed November 7, 1972) to have full responsibility for the
Committee Management function.
(2) The Advisory Committee Management Officer in the Management
Systems Staff administers the Committee Management Program for the
Deputy Under Secretary for Management.
Sec. 8.2 Policy.
(a) Advisory Committees are to be used for obtaining advice and
recommendations on matters for which they were established, and may be
utilized only when the information sought is not otherwise efficiently
and economically available.
(b) Unless provided otherwise by statute or Presidential directive,
advisory committees shall be utilized solely for advisory functions and
any decision taken pursuant to the advice or recommendation of an
advisory committee is the responsibility of the appropriate Department
officer. For the purposes of this provision, ``Presidential directive''
includes an executive order or executive memorandum.
(c) Meetings of advisory committees will be open to the public
unless there is a compelling reason which requires nondisclosure of the
subject matter in accordance with public law (5 U.S.C. 552 (b)).
Sec. 8.3 Scope.
(a) The Federal Advisory Committee Act applies to committees
``established'' by the Government and to committees ``utilized'' though
not established by the Government.
(1) The President and the Congress, or the Department in
consultation with the Office of Management and Budget, may establish a
group which shall be known as an advisory committee for the purpose of
obtaining advice or recommendations and which
[[Page 27]]
shall be subject to the Federal Advisory Committee Act throughout its
existence.
(2) Though not established by the President or the Department, a
group utilized for the purpose of obtaining advice or recommendations
must file a charter prior to a meeting, and otherwise conform to the
requirements of the Act during any meetings or other contacts with the
Department.
(b) One requisite for coverage of either type (established or
utilized) under the Federal Advisory Committee Act is that the group can
be defined as a committee as set forth in the definition of a committee,
as contained in Sec. 8.4 of these regulations, and have all or most of
the following characteristics:
(1) The purpose, objective or intent is that of providing advice to
any officer or organizational component of the Department;
(2) Has regular or periodic meetings;
(3) Has fixed membership (membership may include more than one full
time Federal officer or employee but is not comprised wholly of
Government personnel);
(4) Has an organizational structure (e.g., officers) and a staff.
(c) Where a group provides some advice to an agency, but the group's
advisory function is incidental to and inseparable from other
operational functions such as making or implementing decisions, the
Federal Advisory Committee Act does not apply.
(d) Where the advisory function of a group is separable from its
operational function, the group is subject to the Act to the extent that
it operates as an advisory committee.
Sec. 8.4 Definitions.
(a) The Federal Advisory Committee Act defines advisory committee as
any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup
thereof, which is--
(1) Established by statute or reorganization plan, or
(2) Established or utilized by the President, or
(3) Established or utilized by one or more agencies, in the interest
of obtaining advice or recommendations for the President or one or more
agencies or officers of the Federal Government, except a committee
composed wholly of full-time officers and employees of the Government.
(b) A formal subgroup or subcommittee independently possesses
significant requisites of an advisory committee, i.e., fixed membership,
periodic meetings, et cetera.
(c) An informal subgroup or subcommittee is one that facilitates the
activities of its advisory committee. For example, during a particular
meeting, the advisory committee may divide itself into subgroups to
permit simultaneous discussion of different topics.
Sec. 8.5 Creation of a committee.
(a) A bureau or an office designated or desiring to sponsor an
advisory committee will prepare a memorandum to the Advisory Committee
Management Officer setting forth the purpose, organization (including
subgroups), proposed balanced membership (see Sec. 8.6), and a
justification for the need of the particular committee.
(b) The Advisory Committee Management Officer will review the
request and will make an action recommendation to the Deputy Under
Secretary for Management through the Director of the Management Systems
Staff.
(c) If the Deputy Under Secretary for Management approves the
request, it will be submitted to the Committee Management Secretariat of
the Office of Management and Budget for approval. The OMB Secretariat
will usually take action within 15 days.
(d) The Advisory Committee Management Officer will advise the
sponsoring bureau or office of the approval for or rejection of the
request to establish the advisory committee.
(e) After OMB approval the intent to establish an advisory
committee, containing a description of the committee and a statement of
why it is in the public interest to create it, will be published in the
Federal Register at least 15 days prior to filing the committee charter.
[[Page 28]]
Sec. 8.6 Membership.
(a) The act requires a balanced membership in terms of the points of
view represented. Members are selected for their expertise in the
committee's functions and should be chosen from different vocations
having knowledge in the subject.
(b) It is Department policy that members will be selected without
regard to national origin, religion, race, sex, or color.
(c) The committee office will keep the Advisory Committee Management
Officer currently advised of a committee's membership including
vacancies.
Sec. 8.7 Security.
(a) All officers and members of a committee must have a security
clearance for the subject matter level of security at which the
committee functions.
(b) The responsible committee office will provide the Advisory
Committee Management Officer with each member's security clearance level
and date of issue.
(c) The substantive office sponsoring an advisory committee is
responsible for access to and removal from official premises of
classified material in accordance with the Department's security
regulations (5 FAM 940 and 973). Any questions arising involving
security procedures are to be presented to the Office of Security for
guidance and resolution.
Sec. 8.8 Chartering of committees.
(a) Requirements. (1) Each advisory committee, whether established
or utilized, must have a charter approved by the Deputy Under Secretary
of State for Management and filed with the Advisory Committee Management
Officer, the Senate Foreign Relations Committee and the House Committee
on International Relations, and in the case of a Presidential advisory
committee only with the Committee Management Secretariat of OMB before
it can hold a meeting.
(2) Formal subgroups may be chartered separately or the requisite
information set forth in the charter of the parent committee.
(3) Informal subgroups may not require a charter; however, the
charter of the parent committee must cover this aspect of its
organization.
(4) The Advisory Committee Management Officer will, at the time a
charter is filed, furnish a copy of the filed charter to the Library of
Congress.
(b) Contents. Each committee charter shall contain: The official
name and acronym, if any; the objectives, scope of activity, and full
description of duties; the authority for such functions; the Department
official (by title) to whom the committee reports; the relationship to
or with other committees; the committee organization, composition of
membership and officers' responsibilities; a description of the type of
minutes, with their certification of accuracy, and records to be
maintained; the estimated annual operating costs in dollars and man-
years, and the source and authority for these resources; the period of
time that will be required by the committee to accomplish its stated
purpose; the estimated number and frequency of meetings; the termination
date; and the filing date of the charter.
(c) Termination and Renewal. (1) An existing advisory committee will
be automatically terminated at the end of a 2-year period (i.e., date
specified in charter) unless its charter is renewed, except for a
statutory committee which has provisions providing to the contrary.
(2) The Deputy Under Secretary for Management will make a
determination, based on a comprehensive review, whether or not a
committee will be continued.
(3) The OMB Secretariat will be advised of the determination and
reasons therefore 60 days prior to the charter expiration date of the
committee. If the Secretariat concurs, the Advisory Committee Management
Officer will publish in the Federal Register the Department's intent to
continue those advisory committees so designated by the Deputy Under
Secretary for Management.
(4) Each office responsible for an advisory committee it wishes to
continue will prepare a new charter and submit it to the Advisory
Committee Management Officer before October 1 biennially.
[[Page 29]]
(5) No advisory committee shall meet, advise or make recommendations
between the expiration date of its charter and the date its new charter
is filed.
(d) Amendments. (1) The charter of a committee may be amended, as
necessary, to reflect current information on organization, composition,
activities, et cetera.
(2) A proposed amendment must be approved prior to any committee
activity to which the proposed amendment relates.
Sec. 8.9 Meetings of advisory committees.
(a) Applicability. The term ``meeting'' covers any situation in
which all or some of the members of an advisory committee convene with a
representative of the Department to transact committee business or to
discuss matters related to the committee. This is applicable to an
advisory committee and to its subordinate components.
(b) Designated Department official. (1) No advisory committee may
hold a meeting in the absence of the designated full-time Department or
other U.S. Government officer.
(2) The designated Department or other U.S. Government officer has
the following responsibilities:
(i) Prepares or approves the agenda for all meetings;
(ii) Calls or approves in advance the calling of the meetings;
(iii) Adjourns any meeting whenever he or she determines that
adjournment is in the public interest.
(c) Notice of meetings. (1) All advisory committee meetings, open or
closed, will be publicly announced except when the President of the
United States determines otherwise for reasons of national security.
(2) Notice of each such meeting shall be published in the Federal
Register and in a Department of State Press Release at least 15 days
prior to the meeting date.
(3) The responsible committee office will prepare the notice and
press release, obtaining clearances as set forth in paragraphs (c)(3)
(i) and (ii) of this section, and deliver to the Advisory Committee
Management Officer for action:
(i) Open meeting--clearance within initiating office/bureau;
(ii) Closed meeting--clearance within initiating office/bureau
including its legal adviser, and the Bureau of Public Affairs at the
Bureau level.
(4) The Deputy Under Secretary for Management will determine if an
advisory committee may hold a closed meeting, after a request for a
meeting not open to the public is cleared by the Advisory Committee
Management Officer and the Office of the Legal Adviser.
(5) After the clearances set forth in paragraphs (c) (3) and (4) of
this section, a notification of meeting may also be provided by the
office/bureau to any persons or organizations known to be interested in
the activities of the committee.
(6) The office sponsoring the committee is responsible for meeting
publishing date requirements. Overall normal processing time prior to a
meeting date is 25 days for an open meeting and 47 days for a closed
meeting.
(d) Contents of notice. (1) The content of the Federal Register
public notice and the Department of State press release will be
identical.
(2) An open meeting announcement will state the name of the
committee; the date, time, and place of the meeting; the agenda or
summary thereof; that the meeting will be open to the public; the extent
to which the public may participate in the meeting, either orally or in
writing; seating space available; and the name and telephone number of a
committee officer to whom inquiries may be directed, including
arrangments for those attending if the meeting is in a secure building.
(3) A closed meeting announcement will state the name of the
committee, the date of meeting and the reason or reasons which justify
the closing of the meeting in the public interest.
(e) Closed meetings. (1) An advisory committee meeting may be closed
in accordance with the Federal Advisory Committee Act when the President
or Department determines that the meeting is concerned with matters
listed in section 552(b) of title 5, United States Code.
(2) Any determination to close all or a part of a meeting must be
based upon
[[Page 30]]
specific reasons. If a meeting is to cover separable matters, not all of
which are within the exemptions of 5 U.S.C. 552(b), only the portion of
the meeting dealing with exempt matters may be closed.
(3) When a meeting or portion of a meeting is to be closed to the
public, the notice should state the reasons for the closing.
(4) The written request in accordance with paragraph (c)(4) of this
section, for a determination by the Deputy Under Secretary for
Management that a committee may hold a closed meeting must be submitted
at least 47 days before the scheduled date of the meeting unless the
Deputy Under Secretary for Management determines that a shorter period
of time is necessary.
(f) Cancelled meetings. (1) The cancellation of a scheduled
committee meeting must be publicized without delay.
(2) The responsible committee office will prepare a public notice
and press release and hand-carry them to the Advisory Committee
Management Officer as soon as the decision to cancel the meeting is
made.
(3) The notice and press release will state the name of the advisory
committee, identify the meeting that is cancelled, and state why it is
cancelled. The Federal Register data, if known, concerning the
announcement should be cited.
(g) Rescheduled meetings. When it is not feasible to hold an
advisory committee meeting on the date that has been announced such
meeting may be rescheduled for a later date by utilizing the same
procedure as set forth in paragraph (f) of this section except the word
rescheduled is substituted for cancelled.
(h) Minutes. (1) Detailed minutes of each advisory committee
meeting, including subgroups, shall be kept.
(2) The minutes for an open meeting shall as a minimum cover the
folllowing items: The time and place of the meeting; a listing of
advisory committee members and staff and agency employees present at the
meeting; a complete summary of matters discussed and conclusions
reached; copies of all reports received, issued, or approved by the
advisory committee; a description of the extent to which the meeting was
open to the public; an explanation of the extent of public
participation, including a list of members of the public who presented
oral or written statements; and an estimate of the number of members of
the public who attended the meeting.
(3) The minutes for a closed meeting shall include all that is
required for an open meeting except those items relating to the presence
of the public.
(4) The chairperson of each advisory committee shall certify the
accuracy of the committee minutes.
(22 U.S.C. 2658 and 3926)
[40 FR 28606, July 8, 1975, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 8.10 Reports.
(a) There are two categories of reports on advisory committees. One
category is concerned with management and the other with advisory
activities.
(b) Management reports include:
(1) Comprehensive Review. An annual review shall be conducted on a
calendar year basis to determine the essentiality of the committee. The
results of that Review are included in the Annual Report. The due date
is October 1.
(2) Annual Report. A calendar year report which covers the status of
the committee. It is a component report for the President's annual
report to the Congress. The due date is December 31.
(3) Report of Closed Meeting(s). A summary of the activities and
related matters discussed by a committee during a closed meeting shall
be prepared annually. It is to be as informative as possible for the
public consistent with section 552(b) policy of the Freedom of
Information Act.
(4) Other reports. Other management reports that may be required,
such as requests from the Office of Management and Budget, Congressional
Committees, et cetera, will be submitted in accordance with the
requested due date.
(c) Advisory activities reports are reports issued by the committee.
They are to be submitted, when prepared in final as a committee document
or published, on a current basis.
(d) All reports are submitted to the Advisory Committee Management
Officer.
[[Page 31]]
(1) The Comprehensive Review is signed by the responsible committee
officer and approved by the bureau/office policy making officer. It is
submitted in original only.
(2) The Annual Report will be prepared on Standard Forms 248 and 249
in original and one copy. (Instructions for preparation are printed on
the back of the forms.)
(3) The Report of Closed Meeting(s) is signed by the committee
chairman and submitted in original and 8 copies.
(4) The Advisory activities reports are submitted in 9 copies each,
except Presidential advisory committee reports are submitted in 12
copies.
Sec. 8.11 Records.
(a) The records of an advisory committee consist of all papers and
documents which are prepared for or by and/or made available to the
committee, and are maintained by the office responsible for the
committee. Such records are inter alia agenda, drafts, minutes, notices,
press releases, reports, studies, transcripts, and working papers.
(b) The Advisory Committee Management Officer maintains the
Department's official records relating to the management of all
committees.
Sec. 8.12 Financial records.
Accurate records will be kept by the responsible committee office of
all operating and salary costs of a committee. (See instruction item 17
on SF-248.)
Sec. 8.13 Availability of records.
The records of a committee are to be made available upon request in
accordance with the Department's regulations promulgated in accordance
with the provisions of the Freedom of Information Act (40 Federal
Register 7256-7529, February 19, 1975).
Sec. 8.14 Public inquiries.
Public inquiries concerning the implementation of the Federal
Advisory Committee Act and the management of the advisory committees of
the Department should be addressed to the Advisory Committee Management
Officer, Management Systems Staff, Department of State, Washington, DC
20520.
PART 9_SECURITY INFORMATION REGULATIONS--Table of Contents
Sec.
9.1 Basis.
9.2 Objective.
9.3 Senior agency official.
9.4 Original classification.
9.5 Original classification authority.
9.6 Derivative classification.
9.7 Identification and marking.
9.8 Classification challenges.
9.9 Declassification and downgrading.
9.10 Mandatory declassification review.
9.11 Systematic declassification review.
9.12 Access to classified information by historical researchers and
certain former government personnel.
9.13 Safeguarding.
Authority: E.O. 12958 (60 FR 19825, April 20, 1995) as amended;
Information Security Oversight Office Directive No. 1, 32 CFR 2001 (68
FR 55168, Sept. 22, 2003).
Source: 72 FR 30972, June 5, 2007, unless otherwise noted.
Sec. 9.1 Basis.
These regulations, taken together with the Information Security
Oversight Office Directive No. 1 dated September 22, 2003, and Volume 5
of the Department's Foreign Affairs Manual, provide the basis for the
security classification program of the U.S. Department of State (``the
Department'') implementing Executive Order 12958, ``Classified National
Security Information'', as amended (``the Executive Order'').
Sec. 9.2 Objective.
The objective of the Department's classification program is to
ensure that national security information is protected from unauthorized
disclosure, but only to the extent and for such a period as is
necessary.
Sec. 9.3 Senior agency official.
The Executive Order requires that each agency that originates or
handles classified information designate a senior agency official to
direct and administer its information security program. The Department's
senior agency official is the Under Secretary of State for Management.
The senior agency official is assisted in carrying out the provisions of
the Executive Order and the Department's information security
[[Page 32]]
program by the Assistant Secretary for Diplomatic Security, the
Assistant Secretary for Administration, and the Deputy Assistant
Secretary for Information Sharing Services.
Sec. 9.4 Original classification.
(a) Definition. Original classification is the initial determination
that certain information requires protection against unauthorized
disclosure in the interest of national security (i.e., national defense
or foreign relations of the United States), together with a designation
of the level of classification.
(b) Classification levels. (1) Top Secret shall be applied to
information the unauthorized disclosure of which reasonably could be
expected to cause exceptionally grave damage to the national security
that the original classification authority is able to identify or
describe.
(2) Secret shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security that the original classification authority is
able to identify or describe.
(3) Confidential shall be applied to information the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security that the original classification authority is able to
identify or describe.
(c) Classification requirements and limitations. (1) Information may
not be considered for classification unless it concerns:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including special activities),
intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States,
including confidential sources;
(v) Scientific, technological, or economic matters relating to the
national security; which includes defense against transnational
terrorism;
(vi) United States Government programs for safeguarding nuclear
materials or facilities;
(vii) Vulnerabilities or capabilities of systems, installations,
infrastructures, projects, plans, or protection services relating to the
national security, which includes defense against transnational
terrorism; or
(viii) Weapons of mass destruction.
(2) In classifying information, the public's interest in access to
government information must be balanced against the need to protect
national security information.
(3) In no case shall information be classified in order to conceal
violations of law, inefficiency, or administrative error, or to prevent
embarrassment to a person, organization, or agency, to restrain
competition, or to prevent or delay the release of information that does
not require protection in the interest of the national security.
(4) A reference to classified documents that does not directly or
indirectly disclose classified information may not be classified or used
as a basis for classification.
(5) Only information owned by, produced by or for, or under the
control of the U.S. Government may be classified.
(6) The unauthorized disclosure of foreign government information is
presumed to cause damage to national security.
(d) Duration of classification. (1) Information shall be classified
for as long as is required by national security considerations, subject
to the limitations set forth in section 1.5 of the Executive Order. When
it can be determined, a specific date or event for declassification in
less than 10 years shall be set by the original classification authority
at the time the information is originally classified. If a specific date
or event for declassification cannot be determined, information shall be
marked for declassification 10 years from the date of the original
decision, unless the original classification authority determines that
the sensitivity of the information requires that it shall be marked for
declassification for up to 25 years.
(2) An original classification authority may extend the duration of
classification, change the level of classification, or reclassify
specific information only when the standards and procedures for
classifying information under the Executive Order are met.
[[Page 33]]
(3) Information marked for an indefinite duration of classification
under predecessor orders, such as ``Originating Agency's Determination
Required'' (OADR) or containing no declassification instructions shall
be subject to the declassification provisions of Part 3 of the Order,
including the provisions of section 3.3 regarding automatic
declassification of records older than 25 years.
Sec. 9.5 Original classification authority.
(a) Authority for original classification of information as Top
Secret may be exercised by the Secretary and those officials delegated
this authority in writing by the Secretary. Such authority has been
delegated to the Deputy Secretary, the Under Secretaries, Assistant
Secretaries and other Executive Level IV officials and their deputies;
Chiefs of Mission, Charge d'Affaires, and Principal Officers at
autonomous posts abroad; and to other officers within the Department as
set forth in Department Notice dated May 26, 2000.
(b) Authority for original classification of information as Secret
or Confidential may be exercised only by the Secretary, the Senior
Agency Official, and those officials delegated this authority in writing
by the Secretary or the Senior Agency Official. Such authority has been
delegated to Office Directors and Division Chiefs in the Department,
Section Heads in Embassies and Consulates abroad, and other officers
within the Department as set forth in Department Notice dated May 26,
2000. In the absence of the Secret or Confidential classification
authority, the person designated to act for that official may exercise
that authority.
Sec. 9.6 Derivative classification.
(a) Definition. Derivative classification is the incorporating,
paraphrasing, restating or generating in new form information that is
already classified and the marking of the new material consistent with
the classification of the source material. Duplication or reproduction
of existing classified information is not derivative classification.
(b) Responsibility. Information classified derivatively from other
classified information shall be classified and marked in accordance with
instructions from an authorized classifier or in accordance with an
authorized classification guide and shall comply with the standards set
forth in sections 2.1-2.2 of the Executive Order and the ISOO
implementing directives in 32 CFR 2001.22.
(c) Department of State Classification Guide. The Department of
State Classification Guide (DSCG) is the primary authority for the
classification of information in documents created by Department of
State personnel. The Guide is classified ``Confidential'' and is found
on the Department of State's classified Web site.
Sec. 9.7 Identification and marking.
(a) Classified information shall be marked pursuant to the standards
set forth in section 1.6 of the Executive Order; ISOO implementing
directives in 32 CFR 2001, Subpart B; and internal Department guidance
in 12 Foreign Affairs Manual (FAM).
(b) Foreign government information shall retain its original
classification markings or be marked and classified at a U.S.
classification level that provides a degree of protection at least
equivalent to that required by the entity that furnished the
information. Foreign government information retaining its original
classification markings need not be assigned a U.S. classification
marking provided the responsible agency determines that the foreign
government markings are adequate to meet the purposes served by U.S.
classification markings.
(c) Information assigned a level of classification under predecessor
executive orders shall be considered as classified at that level of
classification.
Sec. 9.8 Classification challenges.
(a) Challenges. Holders of information pertaining to the Department
of State who believe that its classification status is improper are
expected and encouraged to challenge the classification status of the
information. Holders of information making challenges to the
classification status of information shall not be subject to retribution
for such action. Informal, usually oral, challenges are encouraged.
Formal challenges to classification actions
[[Page 34]]
shall be in writing to an original classification authority (OCA) with
jurisdiction over the information and a copy of the challenge shall be
sent to the Office of Information Programs and Services (IPS) of the
Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-6001.
The Department (either the OCA or IPS) shall provide an initial response
in writing within 60 days.
(b) Appeal procedures and time limits. A negative response may be
appealed to the Department's Appeals Review Panel (ARP) and should be
sent to: Chairman, Appeals Review Panel, c/o Information and Privacy
Coordinator/Appeals Officer, at the IPS address given above. The appeal
shall include a copy of the original challenge, the response, and any
additional information the appellant believes would assist the ARP in
reaching its decision. The ARP shall respond within 90 days of receipt
of the appeal. A negative decision by the ARP may be appealed to the
Interagency Security Classification Appeals Panel (ISCAP) referenced in
section 5.3 of Executive Order 12958. If the Department fails to respond
to a formal challenge within 120 days or if the ARP fails to respond to
an appeal within 90 days, the challenge may be sent to the ISCAP.
Sec. 9.9 Declassification and downgrading.
(a) Declassification processes. Declassification of classified
information may occur:
(1) After review of material in response to a Freedom of Information
Act (FOIA) request, mandatory declassification review request, discovery
request, subpoena, classification challenge, or other information access
or declassification request;
(2) After review as part of the Department's systematic
declassification review program;
(3) As a result of the elapse of the time or the occurrence of the
event specified at the time of classification;
(4) By operation of the automatic declassification provisions of
section 3.3 of the Executive Order with respect to material more than 25
years old.
(b) Downgrading. When material classified at the Top Secret level is
reviewed for declassification and it is determined that classification
continues to be warranted, a determination shall be made whether
downgrading to a lower level of classification is appropriate. If
downgrading is determined to be warranted, the classification level of
the material shall be changed to the appropriate lower level.
(c) Authority to downgrade and declassify. (1) Classified
information may be downgraded or declassified by the official who
originally classified the information if that official is still serving
in the same position, by a successor in that capacity, by a supervisory
official of either, or by any other official specifically designated by
the Secretary or the senior agency official.
(2) The Department shall maintain a record of Department officials
specifically designated as declassification and downgrading authorities.
(d) Declassification in the public interest. Although information
that continues to meet the classification criteria of the Executive
Order or a predecessor order normally requires continued protection, in
some exceptional cases the need to protect information may be outweighed
by the public interest in disclosure of the information. When such a
question arises, it shall be referred to the Secretary or the Senior
Agency Official for decision on whether, as an exercise of discretion,
the information should be declassified and disclosed. This provision
does not amplify or modify the substantive criteria or procedures for
classification or create any substantive or procedural right subject to
judicial review.
(e) Public dissemination of declassified information.
Declassification of information is not authorization for its public
disclosure. Previously classified information that is declassified may
be subject to withholding from public disclosure under the FOIA, the
Privacy Act, and various statutory confidentiality provisions.
Sec. 9.10 Mandatory declassification review.
All requests to the Department by a member of the public, a
government employee, or an agency to declassify and release information
shall result in a prompt declassification review of the
[[Page 35]]
information in accordance with procedures set forth in 22 CFR 171.20-25.
Mandatory declassification review requests should be directed to the
Information and Privacy Coordinator, U.S. Department of State, SA-2, 515
22nd St., NW., Washington, DC 20522-6001.
Sec. 9.11 Systematic declassification review.
The Information and Privacy Coordinator shall be responsible for
conducting a program for systematic declassification review of
historically valuable records that were exempted from the automatic
declassification provisions of section 3.3 of the Executive Order. The
Information and Privacy Coordinator shall prioritize such review on the
basis of researcher interest and the likelihood of declassification upon
review.
Sec. 9.12 Access to classified information by historical researchers and certain former government personnel.
For Department procedures regarding the access to classified
information by historical researchers and certain former government
personnel, see Sec. 171.24 of this Title.
Sec. 9.13 Safeguarding.
Specific controls on the use, processing, storage, reproduction, and
transmittal of classified information within the Department to provide
protection for such information and to prevent access by unauthorized
persons are contained in Volume 12 of the Department's Foreign Affairs
Manual.
PART 9a_SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL--Table of Contents
Sec.
9a.1 Security of certain information and material related to the
International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.
Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209,
National Security Council Directive of May 17, 1972 (37 FR 10053).
Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977,
unless otherwise noted.
Sec. 9a.1 Security of certain information and material related to the International Energy Program.
These regulations implement Executive Order 11932 dated August 4,
1976 (41 FR 32691, August 5, 1976) entitled ``Classification of Certain
Information and Material Obtained from Advisory Bodies Created to
Implement the International Energy Program.''
Sec. 9a.2 General policy.
(a) The United States has entered into the Agreement on an
International Energy Program of November 18, 1974, which created the
International Energy Agency (IEA). This program is a substantial factor
in the conduct of our foreign relations and an important element of our
national security. The effectiveness of the Agreement depends
significantly upon the provision and exchange of information and
material by participants in advisory bodies created by the IEA.
Confidentiality is essential to assure the free and open discussion
necessary to accomplish the tasks assigned to those bodies.
(b) These regulations establish procedures for the classification,
declassification, storage, access, and dissemination of certain
information related to the International Energy Program.
Sec. 9a.3 Scope.
These regulations apply to all information and material classified
by the United States under the provisions of E.O. 11932, dated August 4,
1976 entitled ``Classification of Certain Information and Material
Obtained From Advisory Bodies Created To Implement The International
Energy Program.''
Sec. 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information
and material obtained pursuant to the International Energy Program and
which requires protection against unauthorized disclosure in the
interest of the national defense or foreign relations of
[[Page 36]]
the United States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and
communications, in the possession of the United States Government which
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C.
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program
Relating to the International Energy Program (40 FR 16041, April 8,
1975), or (3) the Voluntary Agreement and Plan of Action to Implement
the International Energy Program (41 FR 13998, April 1, 1976), or (4)
Any similar Voluntary Agreement and Program entered into under the
Energy Policy and Conservation Act shall be reviewed by an officer of
the Department of State with classifying authority for the purpose of
determining whether such information or material should be classified
pursuant to E.O. 11652. If the officer determines that the information
or material warrants classification, he shall assign it the appropriate
classification. Such information or material may be exempted from the
General Declassification Schedule established by section 5 of Executive
Order No. 11652 if it was obtained by the United States on the
understanding that it be kept in confidence, or if it might otherwise be
exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the
Department of State shall follow the standards in E.O. 11652 and the
provisions of 22 CFR 9.5 through 9.8.
Sec. 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b)
shall govern declassification and downgrading of such information or
material.
Sec. 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the
marking of information or material classified under the provisions of
these regulations, except that the following stamp shall be used as
appropriate:
(Top Secret, Secret or Confidential)
Classified by: ------------------------------
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on --------------
(effective date or event if any)
Exemption category ``E.O. 11932'' shall be used for information and
material obtained by the United States on e understanding that it be
kept in confidence and classified under E.O. 11932.
(b) If the information or material does not qualify for exemption
from the General Declassification Schedule, ordinary stamps and marking
may be used.
Sec. 9a.7 Access.
(a) Except as set forth in this section, access to information or
material classified under the provisions of these regulations shall be
governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in
connection with an advisory body to the IEA may be made available to
participants in such advisory body and their colleagues in accordance
with the following subsections.
(c) Such information and material classified ``Confidential'' may be
made available for review to participants in the meeting of the advisory
body in which it was developed or discussed. Where participants are
acting as representatives of companies or of the IEA Secretariat, such
information and material may be made available for review to employees
or other representatives of, or counsel for, such companies or
Secretariat: Provided, That such person is determined by an appropriate
officer of the Department to be trustworthy and to have a need for
access to the particular classified information sought in connection
with the performance of duties in furtherance of the purposes of the
IEA, including the furnishing of legal advice to such participants.
(d) Such information and material classified ``Confidential'' may be
left in the custody of such participants or other persons who may review
it for reasonable period of time: Provided, That an appropriate officer
of the Department determines that it will be protected from unauthorized
disclosure
[[Page 37]]
by adequate security safeguards. Such information or material may not be
reproduced by those permitted to review it pursuant to this section
without the written consent of an officer of the Department with
classifying authority.
(e) Such information and material classified other than
``Confidential'' under E.O. 11652 may be made available for review only
to participants in the meeting in which it was developed or discussed;
it must be reviewed in the presence of an official of the United States
Government with an appropriate security clearance granted by the
Department, and may not be left in the custody of such participants.
Sec. 9a.8 Physical protection.
Except as provided in Sec. 9a.7, the physical protection of
information or material classified under this regulation shall be
governed by the appropriate provisions of 22 CFR 9.45 through 9.49.
PART 9b_REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES--Table of Contents
Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by United States media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of
State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department of
State press building passes.
9b.8 Term and renewal of Department of State press building passes.
Authority: 22 U.S.C. 2658.
Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.
Sec. 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press
building passes shall have access to the Main State building identical
to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press
building passes:
(1) May enter and have access 24 hours a day, during regular working
hours, outside regular working hours, on weekends and on holidays,
without an appointment, to the reception area of the Diplomatic Lobby, C
Street Mezzanine area, press booths (Room 2310), press briefing room
(Room 2118), and when in operation, the Office of Press Relations (Room
2109).
(2) May enter and have access without an appointment, on the
basement level or on the first and second floors, to the cafeteria, post
office, banks, concessionaries, barber shop, dry cleaners and the
Foreign Affairs Recreation Association offices for the purposes for
which they are established and when they are in operation.
(3) May not escort non-passholders into the Department of State
building.
(c) Media correspondents, with or without a Department of State
press building pass, may enter areas above the second floor of the Main
State building only if the correspondent is invited by a Department
employee to attend a specific social or official function in an office
located above the second floor. Permission to enter areas above the
second floor is strictly limited to direct passage to and from the
appointment location of the Department of State employee, or the office
or reception room where the function takes place.
(d) Possession of State Department press building pass does not
confer access to or other privileges at other Federal buildings. It is
not to be construed as official United States Government recognition,
approval or accreditation of a correspondent.
[54 FR 1686, Jan. 17, 1989]
Sec. 9b.2 Press correspondents employed by United States media organizations.
In order to obtain a Department of State press building pass, press
correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a
letter from his or her organization stating:
[[Page 38]]
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520, a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]
Sec. 9b.3 Press correspondents employed by foreign media organizations.
In order to obtain a Department of State press building pass,
correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State,
Washington, DC 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, DC Embassy of the nation where the
organization is headquartered or from the Embassy of the United States
in the nation where the organization is headquartered attesting to the
existence of the news organization and the applicant's employment by
that organization. The Director of the Office of Press Relations may
accept a letter from another source attesting to the existence of such
news organizations and the applicant's employment if, in his or her
judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520 a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
Sec. 9b.4 Department of State building press pass for technical crews.
Department of State press building passes are issued to members of
television and radio technical crews who provide technical support on a
daily basis for media correspondents assigned to the Department of
State.
[[Page 39]]
Members of technical crews who do not possess press passes, but who
provide technical support for media correspondents assigned to the
Department of State, may apply to the Office of Press Relations for a
visitor's pass valid for one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications
stated in Sec. Sec. 9b.2(a)(1) and 9b.2(a)(2) or Sec. Sec. 9b.3(a) and
9b.3(b), but does not have regular and substantial assignments in
connection with the Department of State may make arrangements with the
Office of Press Relations for the issuance of a visitor's pass valid for
one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.6 Grounds for denial, revocation, or non-renewal of Department of State press building passes.
In consultation with the Bureau of Diplomatic Security and the
Office of the Legal Adviser, the Director of the Office of Press
Relations of the Department of State, may deny, revoke, or not renew the
Department of State press building pass of any media correspondent or
technician who:
(a) Does not meet the qualifications stated in Sec. Sec.
9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or Sec. Sec. 9b.3(a)(1),
9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-
renewal the correspondent or technician may not re-apply for a period of
one year unless there are material changes in meeting the
qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of
State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds
to believe might violate federal or state law or Department of State
regulations.
(d) Has been convicted of a felony (or a crime in a foreign country
that would be considered a felony if it were committed in the United
States).
(e) Fails to claim an approved authorization form for a State
Department press building pass after notification by the Office of Press
Relations following a period of three (3) months.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]
Sec. 9b.7 Procedures for denial, revocation, or non-renewal of Department of State press building passes.
(a) If the Director of the Office of Press Relations, Department of
State, anticipates, after consultation with the Office of the Legal
Adviser, that in applying the standard set forth in Sec. 9b.6 a
Department of State press building pass might be denied, revoked or not
renewed, the media correspondent or technician will be notified in
writing by the Director of the basis for the proposed denial in as much
detail as the security of any confidential source of information will
permit. This notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or non-
renewal sent to the correspondent will also contain a statement advising
the correspondent of his or her right to respond to the proposed denial
and to rebut any factual basis supporting the proposed denial.
(c) The correspondent shall be allowed thirty (30) days from the
date of the mailing of the proposed denial, revocation or non-renewal
notification to respond in writing. The response shall consist of any
explanation or rebuttal deemed appropriate by the correspondent and will
be signed by the correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30
days, an extension for one additional 30-day period will be granted upon
receipt of the correspondent's written request for such an extension.
(e) At the time of the filing of the media correspondent's or
technician's written response to the notification of the proposed
denial, revocation or non-renewal, the correspondent or technician may
request, and will be granted, the opportunity to make a personal
appearance before the Director of the Office of Press Relations,
Department of State, for the purpose of personally supporting his/her
eligibility for a press pass and to rebut or explain the factual basis
for the proposed denial.
[[Page 40]]
The Director shall exercise, in consultation with the Bureau of
Diplomatic Security and the Office of the Legal Adviser, final review
authority in the matter. The correspondent or technician may be
represented by counsel during this appearance.
(f)(1) On the basis of the correspondent's or technician's written
and personal response and the factual basis for the proposed denial,
revocation or non-renewal, the Director of the Office of Press
Relations, Department of State, will consult with the Bureau of
Diplomatic Security and the Office of the Legal Adviser to determine
whether or not further inquiry or investigation concerning the issues
raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final
decision will be issued in conformity with paragraph (g) of this
section.
(3) If a decision is made that such further inquiry is necessary,
the Director of the Office of Press Relations of the Department of
State, the Bureau of Diplomatic Security and the Office of the Legal
Adviser will conduct such further inquiry as is deemed appropriate. At
the Director's discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of
this section.
(g) On the basis of the correspondent's or technician's written and
personal response, the factual basis for the proposed denial and the
additional inquiry provided for if such inquiry is conducted, the
Director of the Office of Press Relations of the Department of State
will consult with the Bureau of Diplomatic Security and the Office of
the Legal Adviser and expeditiously reach a final decision in accordance
with the standard set forth in Sec. 9b.6. If a final adverse decision
is reached, the correspondent or technician will be notified of this
final decision in writing. This notification will set forth as precisely
as possible, and to the extent that security considerations permit, the
factual basis for the denial in relation to the standard set forth in
Sec. 9b.6. This notification will be sent by registered mail and will
be signed by the Director of the Office of Press Relations of the
Department of State.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
Sec. 9b.8 Term and renewal of Department of State press building passes.
(a) Department of State press building passes for U.S. citizens are
issued with three years' validity. Subject to positive completion of an
international background check, passes for non-U.S. citizens are issued
with one year's validity and may be renewed for three years.
Notwithstanding its initial validity, any press building pass that has
not been used for a twelve-month period, as recorded by the Bureau of
Diplomatic Security's turnstyle entry devices, will become invalid at
the end of that twelve-month period.
(b) For any valid passes issued before October 1, 1995, notification
shall be sent by the Department of State to the holder of the pass that
the pass has become invalid by reason of lack of use for 12-month
period. However, failure of the holder for any reason to receive such a
notification shall not affect the invalidity of the pass. Anyone whose
pass has become invalid may apply for a new pass in accordance with
Sec. Sec. 9b.2 through 9b.5.
[61 FR 3800, Feb. 2, 1996]
[[Page 41]]
SUBCHAPTER B_PERSONNEL
PART 11_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents
Sec.
11.1 Junior Foreign Service officer career candidate appointments.
11.2 Written examination for appointment to class 7 or 8.
11.3 Oral examination for appointment to class 7 or 8.
11.4 Medical examination for appointment to class 7 or 8.
11.5 Certification for appointment to class 7 or 8.
11.6 Final Review Panel.
11.7 Termination of eligibility.
11.8 Travel expenses of candidates.
11.10 Mid-level Foreign Service officer career candidate appointments.
[Reserved]
11.11 Mid-level Foreign Service officer career candidate appointments.
11.20 Foreign Service specialist career candidate appointments.
11.30 Senior Foreign Service officer career candidate and limited non-
career appointments.
Authority: 22 U.S.C. 3926, 3941.
Sec. 11.1 Junior Foreign Service officer career candidate appointments.
(a) General considerations--(1) Authority. Pursuant to sections 302
and 306 of the Foreign Service Act of 1980 (hereinafter referred to as
the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status with subsequent commissioning to
career status governed by the provisions of Volume 3 (Personnel),
Foreign Affairs Manual, section 570. In accordance with section 102(b)
of the Act, all references in these regulations to Foreign Service
officers shall, with respect to the United States Information Agency, be
deemed to refer to Foreign Service information officers.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the fact that an applicant is a veteran or disabled
veteran, as defined in section 2108 (3A), (3B), or (3C) of such title,
shall be considered as an affirmative factor in the selection of
candidates for appointment as Foreign Service officer career candidates.
(3) Policy. Appointment as a Junior Foreign Service officer Career
Candidate of class 6, 5, or 4, is governed by these regulations.
Successful applicants will be appointed as Career Candidates for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, Career Candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their Career Candidate appointments will be
separated from the Career Candidate program no later than the expiration
date of their appointments. Separated candidates who originally were
employees of a department or agency will be entitled to reemployment
rights in their former department or agency in accordance with section
310 of the Act.
(b) Written examination. The following regulations apply to the
written examination.
(1) Purpose. The written examination is designed to enable the Board
of Examiners for the Foreign Service to test the applicant's
intelligence, breadth and quality of knowledge, and understanding in
relation to the requirements of Foreign Service work.
(2) Eligibility. Prior to each written examination, the Board of
Examiners will establish a closing date for the receipt of applications
for designation to take the examination. No person will be designated to
take the examination who has not, as of that closing date, filed an
application with the Board. To be designated to take the written
examination, an applicant, as of the date of the examination, must be a
citizen of the United States and at least 20 years of age.
(3) When and where given. The written examination will be given
periodically, normally at least once a year, in designated cities in the
United States and
[[Page 42]]
at Foreign Service posts, on dates established by the Board of Examiners
and publicly announced.
(4) Grading. The several parts of the written examination will be
weighted and graded according to standards established by the Board of
Examiners. The number of candidates who pass each written examination
will be governed by the projected hiring needs of the participating
foreign affairs departments and agencies in subsequent years.
(c) Oral examination. The following regulations apply to the oral
examination:
(1) Purpose. The oral examination is designed to enable the Board of
Examiners for the Foreign Service to test the candidate's competence to
perform the work of a Foreign Service officer at home and abroad,
potential for growth in the Foreign Service, and suitability to serve as
a representative of the United States abroad. The oral examination for
the Junior Career Candidate Program will consist of an assessment
procedure publicly announced by the Board of Examiners and hereinafter
referred to as the oral examination.
(2) Eligibility--(i) Through written examination. (A) Candidates
whose weighted score on the written examination is at or above the
passing level set by the Board of Examiners will be eligible for
selection to take the oral examination. All eligible candidates normally
will be invited to take the oral examination.
(B) Should the total number of eligible candidates substantially
exceed the projected hiring needs of the Foreign Service, the Board of
Examiners may establish and publicly announce a higher written
examination score than the passing level as the basis for selection to
take the oral examination.
(C) The Board of Examiners may authorize special consideration to be
given in the selection of candidates, from among those eligible, for the
purpose of meeting language requirements, Affirmative Action goals, or
for other purposes which the Board with the concurrence of the
prospective hiring agencies may from time to time approve and publicly
announce.
(D) The nature and applicability of all criteria utilized to select
eligible candidates to take the oral examination will be developed by
the Board of Examiners in consultation with the prospective hiring
agencies and publicly announced in advance of each examination by the
Board.
(E) Candidates who are selected to take the oral examination will be
notified of the period of time after the date of the written
examination, as determined by the Board of Examiners, within which the
oral examination must be conducted. That period will normally be 1 year,
but it may be extended or shortened in special circumstances by the
Board. The candidacy of anyone whose candidacy has not been extended by
the Board, and who has not again passed the written examination in the
meantime, will be terminated 2 years after the end of the month in which
the written examination was held. Time spent outside the United States
and its territories, for reasons acceptable to the Board of Examiners,
will not be counted against this 2-year period. The candidacy of anyone
for whom the 2-year period is extended by the Board because of being
abroad will be terminated automatically if the candidate fails to appear
for the oral examination within 3 months after first returning to the
United States. If a candidate fails to appear for the oral examination
on an agreed date within the period of eligibility without an excuse
acceptable to the Board, the candidacy will automatically terminate.
(ii) Through affirmative action. Members of the minority groups
specified by the Equal Opportunity Act of 1972, as amended, may be
selected by the Board of Examiners for admission to the oral examination
in accordance with the Affirmative Action Programs of the participating
departments and agencies. Such candidates must be at least 21 years of
age, citizens of the United States, and holders of at least a bachelor's
degree from an accredited college or university. Affirmative Action
Program applicants will be evaluated on a highly competitive basis, in
accordance with criteria established by the Board in conjunction with
the participating departments and agencies
[[Page 43]]
and publicly announced, to determine those to be selected for the oral
examination.
(iii) Through the mustang program. (A) Employees of the Department
of State in classes FS-9 through FS-4 and grades GS-1 through GS-12 who
are at least 21 years of age and who have at least 3 years of service
with the Department may be selected by the Board of Examiners for
admission to the oral examination for the Junior Career Candidate
Program in accordance with the Mustang Program of the Department. Such
Mustang candidates must: (1) Complete successfully an appropriate
Foreign Service Institute-sponsored or approved university or
correspondence course relevant to officer-level responsibility in the
chosen Foreign Service field of specialization; (2) submit an
autobiography of approximately 1000 words; and (3) be recommended by a
Qualifications Evaluation Panel of the Board of Examiners for selection
for the oral examination.
(B) Employees of the Department of State in classes FS-3 and GS-13
and above are eligible for the Mid-Level Career Candidate Program and
should apply under that program if they wish to be considered for
conversion to Foreign Service officer status (see Sec. 11.10).
(iv) Through the upward mobility program. Admission to the oral
examination through the Upward Mobility Program of the United States
Information Agency is governed by procedures established by that agency.
(3) When and where given. The oral examination cycle will be held
each year in Washington, DC, and in selected cities in the United
States. If circumstances permit, oral examinations may also be held at
selected Foreign Service posts when approved by the Board of Examiners.
(4) Examining panel. The oral examination will be given by a panel
of deputy examiners approved by the Board of Examiners from a roster of
Foreign Service officers; Foreign Service information officers; career
officers from the Department of State, the United States Information
Agency, and the Department of Commerce; and qualified private citizens
who, by prior service as members of departmental or agency Foreign
Service selection boards or other appropriate activities, have
demonstrated special qualifications to serve as deputy examiners.
Service as a deputy examiner shall be limited to a maximum of 5 years,
unless a further period is specifically authorized by the Board.
Examination panels shall be chaired by a career officer of the Foreign
Service. Determinations of duly constituted panels of deputy examiners
are final unless modified by specific action of the Board of Examiners.
(5) Grading. Candidates taking the oral examination will be graded
numerically according to standards established and publicly announced by
the Board of Examiners. The candidacy of anyone whose score is at or
above the passing level set by the Board will be continued. The
candidacy of anyone whose score is below the passing level will be
terminated and may not be considered again until the candidate has
passed a new written examination. An Affirmative Action, Mustang, or
Upward Mobility candidate who fails the oral examination may not be
considered again until 1 year after that date.
(d) Background investigation. Candidates who pass the oral
examination will be eligible for selection by the Board for the
background investigation. The background investigation shall be
conducted to determine the candidate's suitability for appointment to
the Foreign Service. Should the total number of eligible candidates
substantially exceed the anticipated needs of the Foreign Service, the
Board of Examiners may authorize priorities to be established, on the
basis of combined written and oral examination scores and Affirmative
Action considerations, for scheduling the background investigation.
(e) Medical examination--(1) Eligibility. Candidates who pass the
oral examination, and their dependents, will be eligible for selection
by the Board of Examiners for the medical examination.
(2) Purpose. The medical examination shall be conducted to determine
the candidate's physical fitness to perform the duties of a Foreign
Service officer on a worldwide basis and, for candidates and dependents,
to determine the presence of any physical, neurological, or mental
condition of such a
[[Page 44]]
nature as to make it unlikely that they would be able to function on a
worldwide basis.
(3) Conduct. The medical examination may be conducted by medical
officers of the Department of State, the Armed Forces, the Public Health
Service, accredited colleges and universities, or by private physicians.
(4) Determination. The Medical Director of the Department of State
will determine, on the basis of the report of the physician(s) who
conducted the medical examination, whether the candidate has met the
required medical standards for appointment (see section 1930, Volume 3,
Foreign Affairs Manual).
(5) Waiver of worldwide availability requirement. When authorized
and requested by the candidate, the Director General of the Foreign
Service, or the Director General's delegatee, will review the case of
any Department of State Foreign Service candidate who has been denied an
unlimited medical clearance for assignment worldwide, and determine
whether or not the candidate should be appointed despite the medical
disqualification. Decisions of the Director General of the Foreign
Service, or the Director General's delegatee, are final and are not
subject to further appeal by the candidate.
(f) Final review panel. After the results of the medical examination
and background investigation are received, the candidate's entire file
will be reviewed and graded by a Final Review Panel, consisting of two
or more deputy examiners of the Board of Examiners. Candidates who have
completed the examination process; have passed their medical
examination, or have obtained a waiver from the Director General of the
Foreign Service, or his or her delegatee, or the equivalent in
accordance with the procedures of the other participating agencies; and
on the basis of their background investigation, have been found suitable
to represent the United States abroad, will have their names placed on
the functional rank-order register(s), or a special register, for the
agency or agencies for which they have been found qualified. Thereafter,
they will be considered for employment based on the needs of the
individual foreign affairs agencies. The candidacy of any candidate who
is determined by the Final Review Panel to be unqualified for
appointment shall be terminated and the candidate so informed.
(g) Certification for appointment--(1) Eligibility. (i) A candidate
will not be certified as eligible for appointment as a Foreign Service
Officer Career Candidate of class FS-6 unless that candidate is at least
21 years of age and a citizen of the United States.
(ii) Career Candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States Information
Agency shall be made before the candidate's 58th birthday. The maximum
age for appointment under this program is based on the requirement that
all career candidates shall be able to: (A) Complete at least two full
tours of duty, exclusive of orientation and training, (B) complete the
requisite eligibility period for tenure consideration, and (C) complete
the requisite eligiblity period to receive retirement benefits, prior to
reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) A candidate may be certified as eligible for direct
appointment to classes FS-5 or FS-4 if the Board of Examiners determines
in accordance with published criteria that, in addition to meeting the
requirements for class FS-6, the candidate has additional special
experience and skills for which there is a need in the Foreign Service.
(iv) Recommended candidates who meet the requirements of this
section will be certified for appointment by the Board, in accordance
with the needs of the foreign affairs agencies, in the order of their
standing on their respective registers.
(2) Functional rank-order registers. The Board of Examiners may
maintain separate rank-order registers for Career Candidates in
administrative, consular, economic, and political functions of the
Department of State; for Career Candidates in the information/cultural
function of the United States Information Agency; for Career Candidates
in the foreign commercial function of the Department of Commerce; and
for functions of other participating foreign affairs agencies.
Appointments from
[[Page 45]]
each functional register will be made in rank order according to the
needs of the relevant agency.
(3) Special programs. (i) Qualified minority candidates who apply
and qualify under the Department of State Affirmative Action Junior
Officer Program (AAJOP) may be placed on a separate register and offered
appointment from that register to meet Affirmative Action hiring goals
established by the Secretary.
(ii) Qualified minority candidates who apply and qualify under the
Comprehensive Minority Recruitment and Training Program (COMRAT) of the
United States Information Agency may be placed on a separate register
and offered appointment from that register in accordance with the
Affirmative Action Program established by that agency.
(iii) Mustang and Upward Mobility candidates who are career
employees of the Department of State or the United States Information
Agency will be certified by the Board of Examiners for direct
appointment on an individual basis after satisfactorily completing all
aspects of the examination process.
(4) Postponement of entrance on duty. Postponement of entrance on
duty because of civilian Federal Government service abroad (to a maximum
of 2 years of such service), including Peace Corps volunteer service, or
required active regular or reserve military service (to a maximum of the
limit of such required service), may be authorized by the Board.
(5) Foreign language requirement. A candidate may be certified for
appointment to classes FS-6, FS-5, or FS-4 without first having passed
an examination in a foreign language, but the appointment will be
subject to the condition that the newly appointed Career Candidate may
not be converted to career Foreign Service officer status unless, within
a specified period of time, adequate proficiency in a foreign language
is achieved. For limitations on promotion, see section 874, Volume 3,
Foreign Affairs Manual.
(h) Termination of eligibility--(1) Time limit. Candidates who have
qualified but have not been appointed because of lack of openings will
be removed from the rank-order register 18 months after the date of
placement on the rank-order register. Time spent in civilian Federal
Government service abroad (to a maximum of 2 years of such service),
including Peace Corps volunteer service, or in required active regular
or reserve military service (to a maximum of the limit of such required
service), will not be counted as part of the 18-month eligibility
period.
(2) Extension. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interest of the Foreign Service.
(i) Travel expenses. The travel and other personal expenses of
candidates incurred in connection with the written and oral examinations
will not be borne by the Government. However, the participating foreign
affairs departments and agencies may issue round-trip invitational
travel orders to bring candidates to Washington, DC, at Government
expense, when it is determined by the agencies that this is necessary in
the interest of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 13162, Mar. 30, 1983, as amended at 67 FR 46109, July 12, 2002]
Sec. 11.2 Written examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the written examination:
(a) When and where given. The written examination will be given
annually or semiannually, if required, in designated cities in the
United States and at Foreign Service posts on dates established by the
Board of Examiners for the Foreign Service. Applicants must indicate in
their applications whether they are applying for the Department of State
or for the U.S. Information Agency. Candidates who pass the written
examination successfully may request a transfer of their applications to
the other agency.
(b) Designation to take written examination. No person will be
permitted to take a written examination for appointment as a Foreign
Service officer
[[Page 46]]
or Foreign Service information officer who has not been specifically
designated by the Board of Examiners to take that particular
examination. Prior to each written examination, the Board will establish
a closing date for the receipt of applications for designation to take
the examination. No person will be designated for the examination who
has not, as of that closing date, filed an application with the Board.
To be designated for the written examination, a candidate, as of the
date of the examination, must be a citizen of the United States and
shall be at least 21 years of age, except that an applicant who has been
awarded a bachelor's degree by a college or university, or has
successfully completed the junior year at a college or university, may
qualify if at least 20 years of age.
(c) Content. The written examination is designed to permit the Board
to test the candidate's intelligence, breadth and quality of knowledge,
and understanding. It will consist of three parts: (1) A general ability
test, (2) an English expression test, and (3) a general background test.
(d) Grading. The several parts of the written examination are
weighted in accordance with the rules established by the Board of
Examiners.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.3 Oral examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the oral examination:
(a) When and where given. The oral examination will be given
throughout the year at Washington and periodically in selected cities in
the United States and, if circumstances permit, at selected Foreign
Service posts.
(b) Eligibility. If a candidate's weighted average on the written
examination is 70 or higher, the candidate will be eligible to take the
oral examination. Candidates eligible for the oral examination will be
given an opportunity and will be required to take the oral examination
within 9 months after the date of the written examination. If a
candidate fails to appear for the oral examination on an agreed date
within the 9-month period, the candidacy will automatically terminate,
except that time spent outside the United States and its territories,
for reasons acceptable to the Board of Examiners, will not be counted
against the 9-month period. The candidacy of anyone for whom the 9-month
period is extended because of being abroad will be automatically
terminated if the candidate fails to appear for the oral examination
within 3 months after first returning to the United States: Provided,
That the candidacy of anyone who has not returned and been examined in
the meantime will be canceled 2 years after the end of the month in
which the written examination was held.
(c) Examining process. (1) The oral examination will be given by a
panel of deputy examiners approved by the Board of Examiners from a
roster of Foreign Service officers, officers from the Department of
State, and other Government agencies, and qualified private citizens who
by prior service as members of selection boards or through other
appropriate activities have demonstrated special qualifications for this
work. Service as deputy examiners shall be limited to a maximum of 5
years, unless a further period is specifically authorized by the Board.
(2) The examination will be conducted in the light of all available
information concerning the candidate and will be designed to determine
the candidate's: (i) Competence to perform the work of a Foreign Service
officer at home and abroad; (ii) potential for growth in the Service;
and (iii) suitability to serve as a representative of the United States
abroad. Panels examining candidates for the Department of State will be
chaired by a Foreign Service officer of the Department. Panels examining
candidates for the U.S. Information Agency will be chaired by a Foreign
Service officer of that Agency. Determinations of duly constituted
panels of deputy examiners are final, unless modified by specific action
of the Board of Examiners for the Foreign Service.
(3) Grading: Candidates appearing for the oral examination will be
graded
[[Page 47]]
``recommended'' or ``not recommended.'' If recommended, the panel will
assign a grade which will be advisory to the Final Review Panel in
determining the candidate's standing on the rank-order register of
eligibles. The candidacy of anyone who is graded ``not recommended'' is
automatically terminated and may not be considered again until the
candidate has passed a new written examination.
(4) An investigation shall be conducted of candidates who have been
graded ``recommended'' by the oral examining panel to determine loyalty
to the Government of the United States and attachment to the principles
of the Constitution.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.4 Medical examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the medical examination of candidates.
(a) A candidate graded ``recommended'' on the oral examination will
be eligible for the physical examination.
(b) The medical examination is designed to determine the candidate's
physical fitness to perform the duties of a Foreign Service officer on a
worldwide basis and to determine the presence of any physical, nervous,
or mental disease or defect of such a nature as to make it unlikely that
the candidate would become a satisfactory officer. The Executive
Director of the Board of Examiners for the Foreign Service, with the
concurrence of the Deputy Assistant Secretary for Medical Services, may
make such exceptions to these physical requirements as are in the
interest of the Service. All such exceptions shall be reported to the
Board of Examiners for the Foreign Service at its next meeting.
(c) The medical examination will be conducted by medical officers of
the Armed Forces, the Public Health Service, the Department, accredited
colleges and universities, or, with the approval of the Board of
Examiners, by private physicians.
(d) The Deputy Assistant Secretary for Medical Services will
determine, on the basis of the report of the physician(s) who conducted
the medical examination, whether the candidate has met the standards set
forth in paragraph (b) of this section.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.5 Certification for appointment to class 7 or 8.
(a) Candidates will not be certified as eligible for appointment as
Foreign Service officers of class 8 unless they are at least 21 years of
age, is a citizen of the United States, and, if married, married to a
citizen of the United States. A candidate may be certified as eligible
for direct appointment to class 7 if, in addition to meeting these
specifications, the candidate also has additional qualifications of
experience, education, and age which the Board of Examiners for the
Foreign Service currently defines as demonstrating ability and special
skills for which there is a need in the Foreign Service. Recommended
candidates who meet these requirements will be certified for
appointment, in accordance with the needs of the Service, in the order
of their standing on their respective registers.
(b) Separate registers for Department of State candidates will be
maintained for the administrative, consular, commercial/economic, and
political functional specialties. Successful candidates for the U.S.
Information Agency will have their names placed on a separate rank-order
register and appointments will be made according to the needs of the
Agency. Postponement of entrance on duty for required active military
service, or required alternative service, civilian Government service
abroad (to a maximum of 2 years of such civilian service), or Peace
Corps volunteer service, will be authorized. A candidate may be
certified for appointment to class 7 or 8 without first having passed an
examination in a foreign language, but the appointment will be subject
to the condition that the newly appointed officer may not receive more
than one promotion unless,
[[Page 48]]
within a specified period of time, adequate proficiency in a foreign
language is achieved.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.6 Final Review Panel.
After the results of the medical examination and background
investigation are received, the candidate's entire file will be reviewed
by a Final Review Panel, consisting of two or more deputy examiners.
Candidates who have been graded ``recommended'' by oral examining
panels, who have passed their medical examination, and who, on the basis
of investigation have been found to be loyal to the Government of the
United States and personally suitable to represent it abroad, will have
their names placed on a rank-order register for the functional specialty
for which they have been qualified. Their standing on the register will
be determined by the Final Review Panel after taking into account the
grade assigned by the oral examining panel and any information developed
subsequent to the oral examination concerning the applicant. The
candidacy of anyone who is determined by the Final Review Panel to be
unqualified for appointment shall be terminated and the candidate so
informed.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.7 Termination of eligibility.
(a) Candidates who have qualified but have not been appointed
because of lack of vacancies will be dropped from the rank-order
register 30 months after the date of the written examination: Provided,
however, That reasonable time spent in civilian Government service
abroad (to a maximum of 2 years such service), including service as a
Peace Corps volunteer, in required active military service, or in
required alternative service, subsequent to establishing eligibility for
appointment will not be counted in the 30-month period.
(b) The Chairman of the Board of Examiners may extend the
eligibility period when such extension is, in his judgment, justified in
the interests of the Service. The Chairman shall report the approved
extensions to the Board of Examiners.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.8 Travel expenses of candidates.
The travel and other personal expenses of candidates incurred in
connection with the written and oral examinations will not be borne by
the Government, except that the Department may issue round-trip
invitational travel orders to bring candidates to Washington at
Government expense when it is determined that it is necessary in
ascertaining a candidate's qualifications and adaptability for
appointment.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.10 Mid-level Foreign Service officer career candidate appointments. [Reserved]
Sec. 11.11 Mid-level Foreign Service officer career candidate appointments.
(a) General considerations--(1) Authority. Pursuant to sections 302
and 306 of the Foreign Service Act of 1980 (hereinafter referred to as
the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status, with subsequent commissioning
to career status governed by Volume 3 (Personnel), Foreign Affairs
Manual section 570.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the fact that an applicant is a veteran or disabled
veteran, as defined in section 2108(3A), (3B), and (3C) of such title,
shall be considered as an affirmative factor in the selection of
candidates for appointment as Foreign Service officer career candidates
(22 U.S.C. 1234).
[[Page 49]]
(3) Purpose and policy. The Mid-Level Career Candidate Program of
the Department of State supplements the Junior Foreign Service Officer
Career Candidate Program to meet total requirements for Foreign Service
officers at the mid-level. The purposes of the Mid-Level Program are:
(i) To provide expanded opportunities and upward mobility for
outstanding members of the Foreign Service with high potential who have
been serving with particular success in other occupational categories;
(ii) to permit the recruitment of a limited number of highly skilled and
qualified personnel from outside the Foreign Service to meet specific
needs which cannot be met from within the career Service; and (iii) to
assist in meeting the Affirmative Action goals of the Department of
State. This section governs appointments to generalist occupational
categories (that is, administrative, consular, economic and political)
at classes FS-3, 2, or 1. All appointments above FS-1, regardless of
occupational category, are govern by Sec. 11.30 (to be supplied).
Appointments to Specialist occupational categories below the Senior
Foreign Service are governed by Sec. 11.20. Successful applicants under
the Mid-Level Program will be appointed to career candidate status for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, career candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their career candidate appointments will be
separated from the Career Candidate Program no later than the expiration
date of their appointments. As provided in section 310 of the Act, such
separated candidates who had originally been employed by the Department
of State with the consent of the head of their agency shall be entitled
to reemployment rights in their former agency under section 3597 of
title 5, United States Code.
(4) Sources of candidates--(i) Department. The great majority of
mid-level entrants will be career employees of the Department of State
and the Foreign Service of proven ability who possess high potential for
advancement. On the basis of the needs of the Foreign Service, the
Department will approve the mid-level appointment of Foreign Service and
Civil Service personnel on its rolls who apply, for whom the Bureau of
Personnel issues a certificate of need, and who are found qualified by
the Board of Examiners for the Foreign Service.
(ii) Other Federal Government agencies. Personnel with similar
qualifications from other Federal Government agencies may also apply for
the Mid-Level Program based on agreements between the Department and
those agencies.
(iii) Other. Other candidates may be drawn from non-Government
sources, including minority and women applicants for the Department's
Mid-Level Affirmative Action Program.
(b) Eligibility requirements--(1) Citizenship. Each person appointed
as a Foreign Service mid-level career candidate must be a citizen of the
United States.
(2) Service. (i) On the date of application, a candidate must have
completed a minimum of 9 years of professional work experience,
including at least 3 years of service in a position of responsibility in
a Federal Government agency or agencies. For this purpose, a position of
responsibility is defined as one in the Foreign Service at class FS-5,
in the Civil Service at GS-9, or in the Armed Forces as first lieutenant
or lieutenant junior grade, or higher. Academic studies, particularly
those related to Foreign Service work, may be substituted for part of
the required experience. The duties and responsibilities of the position
occupied by the candidate must have been similar to or closely related
to that of a Foreign Service officer in terms of knowledge, skills,
abilities, and overseas work experience. In addition, a candidate must
currently be in, or have been in, a grade or class comparable to FS-4 or
higher.
(ii) Candidates from outside the Department who at the time of
application lack 3 years of service in a position of responsibility as
defined in the preceding paragraph may, however, be considered if they
are found to possess a combination of educational background,
employment, experience, and skills needed by the Foreign Service at the
mid-level.
[[Page 50]]
(3) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. The maximum age for appointment under this
program is based on the requirement that all career candidates shall be
able to (i) complete at least two full tours of duty, exclusive of
orientation and training, (ii) complete the requisite eligibility period
for tenure consideration, and (iii) complete the requisite eligibility
period to receive retirement benefits, prior to reaching the mandatory
retirement age of 65 prescribed by the Act.
(4) Certification of need. Before the Board of Examiners may process
a candidacy, the Director General of the Foreign Service must certify
that there is a continuing, long-term requirement, consistent with the
projections of personnel flows and needs mandated by section 601(c)(2)
of the Act, for a combination of professional work experience,
educational background, skills, and capabilities possessed by the
applicant which cannot reasonably be met from within the ranks of the
career service, including by special training of career personnel and/or
limited appointments pending completion of such training, if feasible.
No applicant may be appointed in an occupational category or at a class
level for which the Director General has not certified a need. Such
certifications shall take into full account the latest published skills
resources inventory and shall be based on a written assessment of the
assignment and promotion effects on career members of the Foreign
Service. A separate certification of need is not required for applicants
under the Mid-Level Affirmative Action Program, as the hiring goals
established by the Secretary constitute the certification for applicants
under that Program. The exclusive employee representative will be
advised promptly in writing on request of the number, nature, and dates
of the certifications of need issued since the last request, including
an affirmation that each such issuance has been in accordance with the
requirements of this section.
(c) Recruitment--(1) From within the Department. It is the
Department's policy to encourage eligible personnel on its rolls to
apply for appointment as Mid-Level Foreign Service officer career
candidates including, in particular, the following categories: (i)
Members of the Foreign Service whose performance has been consistently
of a high caliber, and whose background, experience, and general
qualifications indicate that they can compete favorably with Foreign
Service officers; and (ii) Civil Service personnel who are serving in
positions to which Foreign Service officers are normally assigned, who
have superior records, and whose general qualifications indicate that
they can compete favorably with Foreign Service officers.
(2) Other. The Department also encourages highly qualified
applicants from other agencies of the Federal Government, and from
outside the Federal Government, who meet the statutory and other
eligibility requirements, to apply for the Mid-Level Program.
Appointments from these sources for available openngs are made on a
highly competitive basis to fill specific needs of the Foreign Service
at the Mid-Level.
(d) Methods of application--(1) Forms. Application is made for a
Mid-Level Foreign Service officer career candidate appointment but not
for a specific class. Applicants for mid-level entry must complete
Standard Form 171, ``Personnel Qualifications Statement,'' and Form DSP-
34, ``Supplement to Application for Federal Employment,'' and forward
them, together with an autobiography not exceeding four typewritten
pages in length, to the Board of Examiners for the Foreign Service for
consideration.
(2) Qualifications evaluation panel. The Board of Examiners
establishes a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Foreign Service officer. A Qualifications Evaluation Panel
of deputy examiners of the Board of Examiners reviews the file to
determine whether the applicant meets the statutory and other
eligibility requirements, to assess the applicant's skills relative to
the needs of the Foreign Service, and to recommend whether the applicant
should be examined for possible appointment under the Mid-Level Program.
[[Page 51]]
(e) Examination for mid-level appointment. The submission of an
application to the Board of Examiners does not in itself entitle an
applicant to examination. The decision whether to proceed with an
examination will be made by the Board of Examiners after a thorough
review of the candidate's qualifications and a determination of
eligibility for appointment following receipt of a certification of need
for that candidate.
(1) Purpose. The mid-level examination is designed to enable the
Board of Examiners to determine a candidate's aptitude for the work of
the Foreign Service at the mid-level and fitness for a Foreign Service
career.
(2) Class. In determining the Foreign Service officer class for
which a candidate will be examined, the Board of Examiner's presumption
will be for the class which is equivalent to the candidate's current
salary level. In evaluating qualifications and in conducting
examinations, the Board of Examiners will determine whether the
candidate's qualifications compare favorably with Foreign Service
officers at the candidate's current salary level. However, the Board of
Examiners, at its discretion, may certify a candidate for appointment as
a career candidate at a class other than that equivalent to current
salary level in those instances where the Board determines that the
candidate's qualifications clearly warrant such action.
(3) Written examination. A written examination will not normally be
required of candidates for mid-level appointment. However, if the volume
of applications for a given class or classes, or a particular functional
specialty, is such as to make it infeasible to examine all candidates
orally within a reasonable time, such candidates may be required to take
an appropriate written examination prescribed by the Board of Examiners.
Candidates whose score on the written examination is at or above the
passing level set by the Board of Examiners will be eligible for
selection for the oral examination.
(4) Oral examination--(i) Purpose. The oral examination will be
designed to enable the Board of Examiners to determine whether
candidates are functionally qualified for work in the Foreign Service at
the mid-level, whether they have the potential to advance in the Foreign
Service, and whether they have the background and experience to make a
contribution to the Foreign Service.
(ii) When and where given. The oral examination is individually
scheduled throughout the year and is normally given in Washington, DC.
At the discretion of the Board of Examiners, it may be given in other
American cities, or at Foreign Service posts, selected by the Board.
(iii) Examining panel. Candidates recommended by a Qualifications
Evaluation Panel for examination will be given an oral examination by a
panel of deputy examiners of the Board of Examiners. That panels shall
include at least one officer from the functional or professional
specialty for which the candidate is being examined. Examining panels
shall be chaired by a career officer of the Foreign Service.
Determinations of duly constituted panels of deputy examiners are final
unless modified by specific action of the Board of Examiners.
(iv) Content. The Examining Panel will question the candidate
regarding the indicated functional or professional specialty; knowledge
of American history, government, and other features of American culture;
familiarity with current events and international affairs; and other
matters relevant to the candidate's qualifications for appointment.
(v) Grading. Candidates taking the oral examination will be graded
numerically according to standards established by the Board of
Examiners. The candidacy of anyone whose score is at or above the
passing level set by the Board will be continued. The candidacy of
anyone whose score is below the passing level will be terminated and may
not be considered again until 1 year after that date.
(5) Written essay. Candidates who take the oral examination will be
asked to write an essay during the examination day, on a topic related
to Foreign Service work, to enable the Board of Examiners to measure the
candidate's effectiveness of written expression.
(6) Other exercises. Candidates who take the oral examination also
may be
[[Page 52]]
asked to complete other exercises during the examination day, to enable
the Board of Examiners to measure additional aspects of performance
related to Foreign Service work at the mid-level.
(7) Background investigation. Candidates who pass the oral
examination will be eligible for selection for the background
investigation. The background investigation shall be conducted to
determine suitability for appointment to the Foreign Service.
(8) Medical examination. Candidates who pass the oral examination,
and their dependents, will be eligible for selection for the medical
examination. The medical examination shall be conducted to determine the
candidate's physical fitness to perform the duties of a Foreign Service
officer on a world-wide basis and, for candidates and dependents, to
determine the presence of any physical, neurological, or mental
condition of such a nature as to make it unlikely that they would be
able to function on a world-wide basis.
(9) Final review panel. The entire file of candidates who pass the
oral examination will be reviewed and graded by a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners,
after the results of the background investigation and the medical
examination are received. The Final Review Panel will take into account
the grade assigned by the oral Examining Panel, as well as all other
available information concerning the candidate, and decide whether or
not to recommend the candidate for appointment. The candidate's file
will then be submitted to the Board of Examiners for approval. If
approved by the Board, the candidate's name will be entered on the rank-
order register for the class and functional specialty for which the
candidate has been found qualified. The candidacy of anyone who is not
recommended for appointment by the Final Review Panel shall be
terminated and the candidate so informed.
(10) Foreign language requirement. All candidates who pass the oral
examination will be required to take a subsequent test to measure their
fluency in foreign languages or their aptitude for learning them. A
candidate may be appointed without first having passed an examination in
a foreign language, but the appointment will be subject to the condition
that the newly appointed career candidate may not be converted to career
Foreign Service officer status unless, within a specified period of
time, adequate proficiency in a foreign language is achieved. For
limitations on promotions see Volume 3 (Personnel), Foreign Affairs
Manual, section 874.
(11) Certification for appointment--(i) Departmental employees. A
candidate who is a career employee of the Department, for whom a
certification of need has been issued, will be certified by the Board of
Examiners for appointment after satisfactorily completing all aspects of
the examination process. The appointment certification will specify the
class and salary for which the candidate has been found qualified.
(ii) Others. Other successful candidates will, after being approved
by the board of Examiners, have their names placed on the rank-order
register for the class and functional specialty for which they have been
found qualified. A separate rank-order register may be established for
candidates under the Mid-Level Affirmative Action Program. Appointments
to available openings will be made from the registers in rank-order
according to the needs of the Foreign Service.
(12) Termination of eligibility. Candidates who have qualified but
have not been appointed because of lack of openings will be removed from
the rank-order register 18 months after the date of placement on the
rank-order register. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interests of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 19702, May 2, 1983]
Sec. 11.20 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Section 303 of the Foreign Service
Act of 1980 (hereinafter referred to as the Act) authorizes the
appointment of members of the Service (other than Presidential
appointments).
[[Page 53]]
(2) Section 306 of the Act provides that, before receiving a career
appointment in the Foreign Service, an individual shall first serve
under a limited appointment for a trial period of service as a career
candidate.
(3) This section governs the appointment by the Department of State
of Foreign Service specialist career candidates to classes FS-1 and
below. Specialist candidates comprise all candidates for career
appointment in all occupational categories other than generalists (that
is, administrative, consular, economic, political, and program
direction), who are governed by the regulations respecting Foreign
Service officer career candidates. The appointment of all Senior Foreign
Service career candidates regardless of occupational category is
governed by Sec. 11.30 (to be supplied). Regulations governing trial
service and tenuring of specialist candidates are found in Volume 3
(Personnel), Foreign Affairs Manual, section 580.
(4) Veterans' preference shall apply to the selection and
appointment of Foreign Service specialist career candidates.
(b) Specialist career candidate appointments--(1) Certification of
need. Candidates for appointment as specialist career candidates must be
world-wide available and must have a professional or a functional skill
for which there is a continuing need in the Foreign Service. Before an
application can be processed, the Director General of the Foreign
Service must certify that there is a need for the applicant as a career
candidate in the specialist category at or above the proposed class of
appointment. No applicant shall be appointed at a class level for which
there is no certified need. This individual certification of need is not
required for those specialist occupations which the Director General
determines in advance to be shortage or continuous recruitment
categories, and for which the Director General has certified the need
for a specific number of appointments at given levels. Such
appointments, including an appointment of an individual who is the
employee of any agency, may not exceed 5 years in duration, and may not
be renewed or extended beyond 5 years. A specialist candidate denied
tenure under Volume 3 (Personnel), Foreign Affairs Manual, section 580,
may not be reappointed as a career candidate in the same occupational
category.
(2) Eligibility. An applicant must be a citizen of the United States
and at least 20 years of age. The minimum age for appointment as a
career candidate is 21. All career candidate appointments shall be made
before the candidate's 60th birthday. The maximum age for appointment
under the program is based on the requirement that all career candidates
shall be able to (i) complete at least two full tours of duty, exclusive
of orientation and training, (ii) complete the requisite eligibility
period for tenure consideration, and (iii) complete the requisite
eligibility period to receive retirement benefits, prior to reaching the
mandatory retirement age of 65 prescribed by the Act.
(3) Selection and initial screening. Specialist career candidates
will be selected on the basis of education, experience, suitability,
performance potential, and physical fitness for world-wide service.
Applicants normally will be given personal interviews and will be
subject to such written, oral, physical, foreign language, and other
examinations as may be prescribed by the Board of Examiners for the
Foreign Service and administered by the Office of Recruitment,
Examination, and Employment (PER/REE). The Board of Examiners will
identify and/or approve the knowledge, skills, abilities, and personal
characteristics required to perform the tasks and duties of Foreign
Service specialists in each functional field. PER/REE will screen
applications for appointment as Foreign Service specialist career
candidates under approved criteria and select those who meet the
requirements for further processing under these regulations.
(4) Oral examination. Candidates selected through the initial
screening will be eligible for an oral examination unless they are
candidates for appointment in occupational categories for which the oral
examination may be waived by the Director General. This waiver normally
will apply only to continuous-recruitment categories and to appointments
below the FS-6 level, and
[[Page 54]]
where such waivers occur, a thorough oral interview will be conducted.
The oral examination will be given by a panel of deputy examiners, at
least one of whom will be a career Foreign Service specialist proficent
in the functional field for which the candidate is being tested. The
examination may include a writing sample. Candidates taking the oral
examination will be graded numerically according to standards set by the
Board of Examiners. The candidacy of anyone whose score is at or above
the passing level set by the Board will be continued. The candidacy of
anyone whose score is below the passing level will be terminated and may
not be considered again for 1 year.
(5) Background investigation. Candidates who have passed the oral
examination, and candidates who have passed the initial screening if the
oral examination has been waived, will be eligible for selection for the
background investigation to determine their suitability for appointment
to the Foreign Service.
(6) Medical examination. Such candidates and their dependents will
be eligible for selection for the medical examination. The medical
examination shall be conducted to determine the candidate's physical
fitness to perform the duties of a Foreign Service specialist on a
world-wide basis and, for candidates and dependents, to determine the
presence of any physical, neurological, or mental condition of such a
nature as to make it unlikely that they would be able to function on a
world-wide basis.
(7) Final review panel. After the results of the medical examination
and background investigation have been received, a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners, or
by another appropriate panel appointed for the purpose by the Director
of PER/REE, will review and grade the candidate's entire file.
Candidates approved by the Final Review Panel will have their names
placed on a rank-order register for the functional specialty for which
they are qualified. Candidates will remain eligible for appointment for
18 months from the date of placement on the rank-order register. The
Board of Examiners may extend this eligibility period when such
extension is, in its judgment, justified in the interests of the Foreign
Service. The candidacy of anyone who is not recommended for appointment
by the Final Review Board shall be terminated and the candidate so
informed.
(c) Limited non-career appointments. Other Foreign Service
specialist appointments may be made on a limited non-career basis.
Before an application for a limited non-career appointment can be
processed, the Director General of the Foreign Service must certify that
there is a need for the applicant. Such limited specialists must serve
overseas, and they will be subject to the same conditions as those
outlined in these regulations for career candidates, with the exception
that the maximum age of 59 does not apply to such appointments. However,
because members of the Foreign Service generally are subject to the
mandatory retirement age of 65 under section 812 of the Act, limited
non-career appointments normally will not extend beyond the appointee's
65th birthday. Applicants for limited non-career appointments will be
subject to the same screening, medical examination, background
investigation, and final review process required of career candidates,
but normally they will not be subject to a written or oral examination.
Their appointments will normally be limited to the duration of the
specific assignment for which they are to be hired, may not exceed 5
years in duration, and may not be renewed or extended beyond 5 years.
Ordinarily, no limited non-career appointee will be reappointed until at
least 1 year has elapsed since the expiration of a previous appointment.
However, earlier reappointment may be granted in cases of special need,
provided the exclusive employee representative is advised in advance and
is afforded an opportunity to comment. Prior to the expiration of their
limited appointments, if otherwise eligible, non-career appointees may
compete for career candidate status by qualifying at that time for and
taking the examinations required of career candidates. If successful,
their names would be entered on the rank-
[[Page 55]]
order register for their functional specialty. If appointed as career
candidates, the length of service under their previous limited non-
career appointments may be counted as part of the trial period of
service prescribed before a candidate can receive a career appointment.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 19704, May 2, 1983]
Sec. 11.30 Senior Foreign Service officer career candidate and limited non-career appointments.
(a) General considerations. (1) Career officers at the Senior Level
normally shall be appointed as the result of promotion of Mid-Level
career officers. Where the needs of the Foreign Service at the Senior
Level cannot otherwise be met by this approach, limited appointments may
by granted to applicants as Senior Career Candidates or as limited non-
career appointees in accordance with these regulations. However, as
required by section 305(b) of the Foreign Service Act of 1980
(hereinafter referred to as the Act), but qualified by section 305(b)(1)
and (2) and section 2403(c) of the Act, the limited appointment of an
individual in the Senior Foreign Service shall not cause the number of
members of the Senior Foreign Service serving under limited appointments
to exceed 5 percent of the total members of the Senior Foreign Service.
(2) Successful applicants under the Senior Career Candidate Program
will be appointed to Career Candidate status for a period not to exceed
5 years. Such limited Career Candidate appointments may not be renewed
or extended beyond 5 years.
(3) Under section 306 of the Act, Senior Career Candidates may be
found qualified to become career members of the Senior Foreign Service.
Those who are not found to be so qualified prior to the expiration of
their limited appointments will be separated from the Career Candidate
Program no later than the expiration date of their appointments.
Separated candidates who originally were employees of a Federal
department or agency, and who were appointed to the Senior Foreign
Service with the consent of the head of that department or agency, will
be entitled to reemployment rights in that department or agency in
accordance with section 310 of the Act and section 3597 of title 5,
United States Code.
(4) The following regulations shall be utilized in conjunction with
section 593, Volume 3, Foreign Affairs Manual (``Senior Foreign Service
Officer Career Candidate Program''). (Also see Foreign Affairs Manual
Circulars No. 8 [applicable to the Department of State only] and No. 9
[applicable to the Departments of State, Agriculture, and Commerce, the
Agency for International Development, and the United States Information
Agency], dated March 6, 1981.)
(b) Senior Career Candidate appointments--(1) Eligibility
requirements. Senior Career Candidates must meet the following
eligibility requirements:
(i) Citizenship. Each person appointed as a Senior Career Candidate
must be a citizen of the United States.
(ii) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States Information
Agency shall be made before the candidate's 58th birthday. The maximum
age for appointment under this program is based on the requirement that
all career candidates shall be able to: (A) Complete at least two full
tours of duty, exclusive of orientation and training; (B) complete the
requisite eligibility period for tenure consideration and (C) complete
the requisite eligibility period to receive retirement benefits, prior
to reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) Service. (A) On the date of application, an applicant must
have completed a minimum of 15 years of professional work experience,
including at least 5 years of service in a position of responsibility in
a Federal Government agency or agencies or elsewhere equivalent to that
of a Mid-Level Foreign Service officer (classes FS-1 through FS-3). The
duties and responsibilities of the position occupied by the applicant
must have been similar to or closely related to that of a Foreign
Service officer in terms of knowledge,
[[Page 56]]
skills, abilities, and overseas work experience. In addition, an
applicant must currently be in, or have been in, a position comparable
to a Foreign Service officer of class 1 (FS-1), or higher.
(B) Applicants from outside the Federal Government, and Federal
employees who at the time of application lack the 15 years of
professional work experience or the 5 years of service in a position of
responsibility as defined in the preceding paragraph, may, however, be
considered if they are found to possess a combination of educational
background, professional work experience, and skills needed by the
Foreign Service at the Senior Level in employment categories which
normally are not staffed by promotion of Mid-Level career officers.
(C) Non-career members of the Senior Foreign Service of a Federal
Government department or agency also may apply for the Senior Career
Candidate Program if they meet the eligibility requirements for the
program.
(iv) Certification of need. Before an application can be processed,
the Director of Personnel of the foreign affairs agency concerned must
certify that there is a need for the applicant as a Senior Career
Candidate based upon (A) the projections of personnel flows and needs
mandated by section 601(c)(2) of the Act, and (B) a finding that the
combination of educational background, professional work experience, and
skills possessed by the applicant is not expected to be available in the
immediate future in sufficient numbers within the Senior Foreign
Service, including by promotion and/or special training of career
personnel. This certification of need will be requested by the Board of
Examiners for the Foreign Service from the appropriate foreign affairs
agency Director of Personnel.
(2) Application. All applicants for the Senior Career Candidate
Program must apply in writing through the prospective employing agency
to the Board of Examiners for consideration. The applicant shall submit
a completed Standard Form 171, ``Personnel Qualifications Statement,''
and Form DSP-34, ``Supplement to Application for Federal Employment,''
to the Board. In addition, the applicant shall submit a narrative
statement, not exceeding four typewritten pages in length, describing
the applicant's pertinent background and professional work experience,
which includes a statement of the applicant's willingness and ability to
accept the obligation of world-wide service. The Board may request
additional written information from the applicant following receipt of
the initial application.
(3) Qualifications evaluation panel. (i) The Board of Examiners will
establish a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Senior Career Candidate. For an applicant from within the
Federal Government, this will include the personnel file from the
employing department or agency.
(ii) The complete file will be reviewed by a Qualifications
Evaluation Panel of the Board of Examiners to determine whether the
applicant meets the statutory and other eligibility requirements, to
assess the applicant's skills under the certification of need issued by
the prospective employing agency, and to recommend whether the applicant
should be examined for possible appointment as a Senior Career
Candidate. If the Qualifications Evaluation Panel decides that the
applicant is not eligible for examination, the prospective employing
agency shall be informed by the Board of the reasons for that decision.
(4) Written examination. The Board of Examiners normally will not
require Senior Career Candidate applicants to undergo a written
examination. However, the Board may, upon securing the agreement of the
prospective employing agency, decide that such applicants should be
required to take an appropriate written examination prescribed by the
Board. If so, an applicant whose score on the written examination is at
or above the passing level set by the Board will be eligible for
selection for the oral examination.
(5) Oral examination--(i) Examining panel. Applicants recommended by
the Qualifications Evaluation Panel will be given an appropriate oral
examination by a Panel of Senior Foreign Service deputy examiners of the
Board of Examiners. The Oral Examining Panel
[[Page 57]]
shall be composed of at least two deputy examiners who are Senior
Foreign Service career officers of the prospective employing agency, and
at least one deputy examiner who is a Senior Foreign Service career
officer from another foreign affairs agency operating under the Foreign
Service Act. The Examining Panel shall be chaired by a deputy examiner
who is a Senior Foreign Service career officer of the prospective
employing agency. At least one of the Examining Panel members shall
represent the functional or specialist field for which the applicant is
being examined. Determinations of duly constituted panels of deputy
examiners are final, unless modified by specific action of the Board of
Examiners.
(ii) Criteria. (A) The Examining Panel will question the applicant
regarding the indicated functional or specialist field and other matters
relevant to the applicant's qualifications for appointment as a Senior
Career Candidate. Prior to the oral examination, the applicant will be
asked to write an essay, on a topic related to Foreign Service work, to
enable the Examining Panel to judge the applicant's effectiveness of
written expression. This essay requirement may be waived at the request
of the head of the prospective employing agency, if, for example, the
applicant is a career member of the Senior Executive Service.
(B) The oral examination will be conducted under written criteria,
established in consultation with the prospective employing agency and
publicly announced by the Board of Examiners. The examination will seek
to determine the ability of the applicant to meet the objective of
section 101 of the Act, which provides for a Senior Foreign Service
``characterized by strong policy formulation capabilities, outstanding
executive leadership qualities, and highly developed functional, foreign
language, and area expertise.''
(iii) Grading. Applicants taking the oral examination will be graded
as ``recommended,'' or ``not recommended'' by the Examining Panel. Those
graded as ``recommended'' also will be given a numerical score, under
the standard Board of Examiners scoring criteria, for use by the Final
Review Panel.
(6) Background investigation. Senior Career Candidate applicants
recommended by the Examining Panel will be subject to the same
background investigation as required for Junior and Mid-Level Foreign
Service Officer Career Candidates. The background investigation shall be
conducted to determine suitability for appointment to the Foreign
Service.
(7) Medical examination. Senior Career Candidate applicants
recommended by the Examining Panel, and their dependents, will be
subject to the same medical examination as required for the Junior and
Mid-Level Foreign Service Career Candidates. The medical examination
shall be conducted to determine the applicant's physical fitness to
perform the duties of a Foreign Service officer on a world-wide basis
and, for applicants and dependents, to determine the presence of any
physical, neurological, or mental condition of such a nature as to make
it unlikely that they would be able to function on a world-wide basis.
Applicants and/or dependents who do not meet the required medical
standards may be given further consideration, as appropriate, under the
procedures of the prospective employing agency.
(8) Foreign language requirement. Applicants recommended by the
Examining Panel will be required to take a subsequent examination to
measure their fluency in foreign languages, and/or their aptitude for
learning them. Senior Career Candidates will be subject to the foreign
language requirements established for their occupational category by
their prospective employing agency. Senior Career Candidate applicants
for the Foreign Commercial Service must demonstrate proficiency by
examination in two foreign languages. United States Information Agency
Senior Career Candidates, other than Senior Specialist Career
Candidates, must demonstrate proficiency in at least one foreign
language. Except for the Foreign Commercial Service and the United
States Information Agency, an applicant may be appointed without first
having passed an examination in a foreign language,
[[Page 58]]
but the appointed Senior Career Candidate may not be commissioned as a
Career Senior Foreign Service officer unless adequate proficiency in a
foreign language is achieved. This language requirement will not apply
to candidates in occupational categories which, in the judgment of the
prospective employing agency, do not require foreign language
proficiency.
(9) Final review panel. (i) The entire file of an applicant
recommended by the Examining Panel will be reviewed and graded by a
Final Review Panel, after the results of the background investigation,
medical examination and language examination are received. The Final
Review Panel will decide whether or not to recommend the applicant for
appointment, taking into account all of the available information
concerning the applicant.
(ii) The Final Review Panel shall consist of a chairperson who shall
be a Deputy Examiner who is a career Senior Foreign Service officer of
the prospective employing agency, and at least two other Deputy
Examiners of the Board of Examiners. Of the Deputy Examiners serving on
the Final Review Panel, the majority shall be career Senior Foreign
Service officers of the prospective employing agency; and at least one
shall be a career Senior Foreign Service officer of one of the other
foreign affairs agencies operating under the Act.
(10) Certification of appointment. The file of an applicant
recommended by the Final Review Panel will be submitted to the Board of
Examiners for consideration and approval. An applicant found by the
Board to meet the standards for appointment as a Senior Foreign Service
Career Candidate shall be so certified to the Director of Personnel of
the prospective employing agency.
(c) Limited non-career appointments. (1) Other Senior Foreign
Service appointments may be made on a limited non-career basis for
individuals who do not wish to compete for career appointments, but for
whom a need can be certified by the Director of Personnel of the foreign
affairs agency concerned. Such limited non-career senior appointees will
be subject to the eligibility requirements set forth in Sec.
11.30(b)(1) (i) and (iv). The maximum age set forth in Sec.
11.30(b)(1)(ii) does not apply to such appointments. However, because
Foreign Service members generally are subject to the mandatory
retirement age of 65, under section 812 of the Act, limited non-career
Senior appointments normally will not extend beyond the appointee's 65th
birthday. Limited non-career appointees of the Department of Commerce
and the United States Information Agency will not be subject to the
language requirements of Sec. 11.30(b)(8). Applicants for limited non-
career senior appointments will be subject to the same background
investigation and medical examination required of career candidates, but
normally they will not be subject to a written or oral examination, or
to approval by the Board of Examiners. Processing procedures for such
applicants will be established by the Director of Personnel of the
foreign affairs agency concerned. Their appointments normally will be
limited to the duration of the specific assignments for which they are
to be hired, may not exceed 5 years in duration, and may not be renewed
or extended beyond 5 years.
(2) Prior to the expiration of their limited non-career senior
appointments, if they meet all the eligibility requirements set forth in
Sec. 11.30(b)(1), such individuals may elect to compete for career
candidate status in the Senior Foreign Service by qualifying at that
time for and taking the examinations required of career candidates. If
appointed as career candidates, the length of service under their
previous limited non-career appointments may be counted under the
procedures of the employing agency as part of the trial period of
service prescribed before a career candidate can receive a career
appointment. The total period of limited appointment (non-career and
career candidate) of such individuals may not exceed 5 years in
duration.
(3) Nothing in this section will limit the right of an individual
who has previously served as a limited non-career senior appointee from
subsequently applying for consideration as a new applicant and being
appointed as a Senior Career Candidate after a limited non-career
appointment has expired.
[[Page 59]]
(d) Reporting requirement. The Director of Personnel of each foreign
affairs agency shall report annually to the Director General of the
Foreign Service, Department of State, the number and nature of the
limited Senior Foreign Service appointments (non-career and career
candidates) made by that agency under these regulations.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 38607, Aug. 25, 1983]
PART 12_COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS--Table of Contents
Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.
Sec. 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint
against an employee by an alleged creditor, so far as the complainant is
concerned, beyond acknowledging receipt of his communication.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
Sec. 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims
will be denied access to employees for the purpose of presenting or
collecting claims during the hours set apart for the transaction of
public business or while the employees concerned are on duty.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
PART 13_PERSONNEL--Table of Contents
Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 Liability for neglect of duty or for malfeasance generally; action
on bond; penalty.
13.4 False certificate as to ownership of property.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.
Sec. 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be
collected, for any services any other or greater fees than are allowed
by law for such services, shall, besides his or her liability to refund
the same, be liable to pay to the person by whom or in whose behalf the
same are paid, treble the amount of the unlawful charge so collected, as
a penalty. The refund and penalty may be recovered with costs, in any
proper form of action, by such person for his or her own use. The amount
of such overcharge and penalty may at the discretion of the Secretary of
the Treasury be ordered withheld from the compensation of such officer
for payment to the person entitled to the same (22 U.S.C. 1189).
Note: The foregoing relates to improper collection and personal
withholding of funds by consular officers. For procedure where a
collection, having been erroneously made, has been returned by the
officer to the Treasury in good faith, making a subsequent accounting
adjustment necessary, see Sec. 22.4, Refund of fees of this chapter.
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects
belonging to a citizen of the United States and shall not within a
reasonable time after demand made upon him or her by the Secretary of
State or by such citizen, his or her executor, administrator, or legal
representative, account for and pay over all moneys, property, and
effects, less his or her lawful fees, due to such citizen, shall be
deemed guilty of embezzlement, and shall be punishable by imprisonment
for not more than five years, and by a fine of not more than $2,000 (22
U.S.C. 1198). Penalties of imprisonment and fine are also prescribed for
embezzlement in connection with the acceptance, without execution of a
prescribed form of bond, of appointment from any
[[Page 60]]
foreign state as administrator, guardian, or to any other office of
trust for the settlement or conservation of estates of deceased persons
or of their heirs or of persons under legal disabilities (22 U.S.C. 1178
and 1179). Acceptance of such appointments is not ordinarily permitted
under existing regulations. See Sec. 92.81 of this chapter.
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.3 Liability for neglect of duty or for malfeasance generally; action on bond; penalty.
Whenever any consular officer willfully neglects or omits to perform
seasonably any duty imposed upon him or her by law, or by any order or
instruction made or given in pursuance of law, or is guilty of any
willful malfeasance or abuse of power, or of any corrupt conduct in his
or her office, he or she shall be liable to all persons injured by any
such neglect, or omission, malfeasance, abuse, or corrupt conduct, for
all damages, occasioned thereby; and for all such damages, he or she and
his or her sureties upon his or her official bond shall be responsible
thereon to the full amount of the penalty thereof to be sued in the name
of the United States for the use of the person injured. Such suit,
however, shall in no case prejudice, but shall be held in entire
subordination to the interests, claims, and demands of the United
States, as against any officer, under such bond, for every willful act
of malfeasance or corrupt conduct in his or her office. If any consul
neglects or omits to perform seasonably the duties imposed upon him or
her by the laws regulating the shipment and discharge of seamen, or is
guilty of any malversation or abuse of power, he or she shall be liable
to any injured person for all damage occasioned thereby; and for all
malversation and corrupt conduct in office, he or she shall be
punishable by imprisonment for not more than five years and not less
than one, and by a fine of not more than $10,000 and not less than
$1,000 (22 U.S.C. 1199).
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that
property belonging to foreigners is property belonging to citizens of
the United States, he or she shall be punishable by imprisonment for not
more than three years, and by a fine of not more than $10,000 (22 U.S.C.
1200).
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR
16989, Apr. 23, 1984]
PART 16_FOREIGN SERVICE GRIEVANCE SYSTEM--Table of Contents
Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.
Authority: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat.
111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037;
sec. 10 of E.O. 11636 (36 FR 24901).
Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.
Sec. 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a
citizen of the United States; or for purposes of paragraphs (c) (7) and
(8) of this section, a former officer or employee of the Service; or in
the case of death of the officer or employee, a surviving spouse or
dependent family member of the officer or employee.
[[Page 61]]
(c) Grievance means any act or condition subject to the control of
the Foreign Affairs agencies (the Department of State, the Agency for
International Development, or the U.S. Information Agency) which is
alleged to deprive the grievant of a right or benefit authorized by law
or regulation or is otherwise a source of concern or dissatisfaction to
the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee
allegedly contrary to law or regulation or predicated upon alleged
inaccuracy (including inaccuracy resulting from omission or any relevant
and material document), error, or falsely prejudicial character of any
part of the grievant's official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of
applicable law, regulation, or published policy affecting the terms and
conditions of the grievant's employment or career status;
(3) Allegedly wrongful disciplinary action against an employee
constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the
agency with respect to the grievant's physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in
the grievant's official personnel file;
(6) Action alleged to be in the nature of reprisal or other
interference with freedom of action in connection with an employee's
participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily
retired pursuant to sections 633 and 634 of the Act within 6 years prior
to December 1, 1975, ``grievance'' shall mean a complaint that such
involuntary retirement violated applicable law or regulation effective
at the time of the retirement or that the involuntary retirement was
predicated directly upon material contained in the grievant's official
personnel file alleged to be erroneous or falsely prejudicial in
character; and
(8) When the grievant is a former officer or employee or a surviving
spouse or dependent family member of a former officer or employee,
``grievance'' shall mean a complaint that an allowance or other
financial benefit has been denied arbitrarily, capriciously or contrary
to applicable law or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign
Service officers or employees, which are ordered in accordance with law
and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623
of the Act, or of equivalent bodies, in ranking Foreign Service officers
and employees for promotion on the basis of merit, or judgments in
examinations prescribed by the Board of Examiners pursuant to section
516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C.
929 and 1008, and the pertinent regulations prescribed by the employing
agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals
procedure exists (see appendix A for examples).
A grievance filed under these procedures may be based on matters for
which there is a specific statutory appeals procedure which is
applicable to the Foreign Service grievant. Should the jurisdiction of
the Grievance Board over a specific grievance be placed into question on
grounds that the basis of the grievance is not encompassed within the
Board's authority (Sec. 16.1(d)(4) and Appendix A), the Board shall
consult with the other statutory body concerned, transmitting the views
of the parties concerned before determining whether it has jurisdiction.
(e) Employee organization means any employee organization accorded
recognition as the excusive employee representative pursuant to
Executive Order 11636 dated December 17, 1971.
(f) Grievance Board or Board means the full Foreign Service
Grievance Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having
control
[[Page 62]]
over the act or condition forming the subject matter of the grievance.
(h) Bureau means equivalent organizational elements in State and
USIA, and includes offices in AID.
(i) Days means calendar days.
Sec. 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as
required by law to provide Foreign Service officers and employees (and
their survivors) of the Foreign Affairs agencies, a grievance procedure
to insure a full measure of due process, and to provide for the just
consideration and resolution of grievances of such officers, employees,
and survivors. No regulation promulgated in this part shall be
interpreted or applied in any manner which would alter or abridge the
provisions of the due process established by the Congress in Pub. L. 94-
141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to
settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage
employees to discuss complaints with them and should respond in a timely
manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the
employee's current supervisor or with the responsible officer who has
immediate jurisdiction over the complaint to give that person an
opportunity to resolve the matter, before further steps are taken under
these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from
seeking guidance from any official who might be helpful respecting the
submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or
other person involved in a proceeding hereunder shall be free from any
restraint, interference, coercion, harassment, discrimination, or
reprisal in those proceedings or by virtue of them. The Foreign Affairs
agencies recognize their obligation to insure compliance with this
section. Any person involved or having immediate knowledge of any
alleged breach of this section should call it to the attention of the
pertinent foreign affairs agency through appropriate channels for
corrective action as necessary. Normally such allegations should be
brought to the attention of the senior agency official at the post; and
at Washington, DC, to the Director, Grievance Staff for State; Chief,
Employee Relations Branch for AID and Chief, Employee-Management
Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant's
own choosing at every stage of the proceedings. The grievant and repre-
sentative(s) who are under the control, supervision, or responsibility
of the Foreign Affairs agencies shall be granted reasonable periods of
administrative leave to prepare, to be present, and to present the
grievance.
(3) Any witness under the control, supervision, or responsibility of
a Foreign Affairs agency shall be granted reasonable periods of
administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall
have authority to ensure that no copy of the determination of the agency
head or designee to reject a Grievance Board recommendation, no notation
of the failure of the Grievance Board to find for the grievant, and no
notation that a proceeding is pending or has been held, shall be entered
in the personnel records of the grievant (unless by order of the
Grievance Board as a remedy for the grievance) or those of any other
officer or employee connected the grievance. The Foreign Affairs
agencies shall maintain grievance records under appropriate safeguards
to preserve confidentiality (Sec. 16.9).
Sec. 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant's
representative shall have access to the record of proceedings, including
the decision of the Board.
(b) Agency records. (1) In considering the validity of a grievance,
the Grievance Board shall have access, to the extent permitted by law,
to any agency record considered by the Board to be relevant to the
grievant and the subject matter of the grievance.
[[Page 63]]
(2) The agency shall, subject to applicable law, promptly furnish
the grievant any agency record which the grievant requests to
substantiate the grievance and which the agency or the Grievance Board
determines is relevant and material to the proceeding. When deemed
appropriate by the agency or the Board, a grievant may be supplied with
only a summary of extract of classified material. If a request by a
grievant for a document is denied prior to or during the agency's
consideration of a grievance, such denial may be raised by the grievant
as an integral part of the grievance before the Board.
(3) These regulations do not require disclosure of any official
agency record to the Grievance Board or a grievant where the head of
agency or deputy determines in writing that such disclosure whould
adversely affect the foreign policy or national security of the United
States.
Sec. 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be
presented at any time if its adverse effect is presently continuing.
Documents contained in official employee personnel files, for example,
shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under
these regulations is forever barred, and the Grievance Board shall not
consider or resolve the grievance, unless the grievance is presented
within a period of 3 years after the occurrence or occurrences giving
rise to the grievance, except that if the grievance arose earlier than 2
years prior to the effective date of these regulations, the grievance
shall be so barred, and no considered and resolved, unless it is
presented within a period of 2 years after the effective date of these
regulations, There shall be excluded from the computation of any such
period any time during which the grievant was unaware of the grounds
which are the basis of the grievance and could not have discovered such
grounds if the grievant had exercised, as determined by the Grievance
Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible
official (Sec. 16.7(b)), transmitted to post or bureau (Sec. 16.7(c))
submitted for agency review (Sec. 16.8) or filed with the Grievance
Board Sec. 16.11(a):
(1) On the date of its dispatch by telegram, registered or certified
mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if
delivered by any other means.
Sec. 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if
the grievant has formally requested, prior to filing a grievance, that
the matter or matters which are the basis of the grievance be considered
or resolved and relief be provided, under another provision of law,
regulation, or executive order, and the matter has been carried to final
decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under
these regulations by paragraph (a) of this section, the grievant may
file under these regulations notwithstanding the fact that such
grievance may be eligible for consideration, resolution, and relief
under a regulation or executive order other than under these
regulations, but such election of remedies shall be final upon the
acceptance of jurisdiction by the Board.
Sec. 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security
clearances whenever necessary to ensure a fair and prompt investigation
and hearing.
Sec. 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered
through the steps provided in this section before they are filed with
the Grievance Board.
(2) During the pendency of agency procedures under this section, the
grievant may request a suspension of the proposed action of the
character of separation or termination of the grievant, disciplinary
action against the grievant, or recovery from the grievant of alleged
overpayment of salary, expenses or allowances, which is related to the
grievance. The request must be
[[Page 64]]
in writing and addressed to the responsible official of the agencies, as
designated in Sec. 16.8(a)(2) stating the reasons for such suspension.
If the request is related to separation or termination of the grievant,
and the agency considers that the grievance is not frivolous and is
integral to the proposed action, the agency shall suspend its proposed
action until completion of agency procedures, and for a period
thereafter if necessary, consistent with paragraph (a) of Sec. 16.11,
to permit the grievant to file a grievance with the Board, and to
request interim relief under paragraph (c) of Sec. 16.11. If a request
is denied, the agency shall provide the grievant in writing the reason
for denial. Nothing in these regulations shall be deemed to preclude an
employee from requesting the suspension of any proposed action.
(b) Consideration by responsible officer. (1) While every effort
should be made to resolve a complaint by an initial discussion between
an employee and the supervisor or responsible officer, an employee may
present the complaint as a grievance by submitting it in writing, to
that person. (The term ``responsible officer'' as used herein includes
any appropriate officer who has immediate jurisdiction over the
complaint.) The presentation shall include a description of the act or
condition which is the subject of the grievance; its effect on the
grievant; any provision of law, regulation, or agency policy which the
grievant may believe was violated or misapplied; any documentary
evidence readily available to the grievant on which the grievance rests;
the identity of individuals having knowledge of relevant facts; and a
statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use
independent judgment in deciding whether the grievance is meritorious
and what the resolution of it should be. Within 15 days from receipt of
the written grievance, the responsible officer shall provide the
grievant with a written response, which shall include a statement of any
proposed resolution of the grievance.
(3) If the response denies in whole or in part the remedial action
requested, such response shall notify the grievant of the time within
which to appeal the decision, and identity of the senior official, or
designee, to whom the appeal should be addressed. In those cases in
which the senior official, or designee, is the responsible officer to
whom the grievance was initially presented or has participated in the
decision process and has formally approved the written response of the
responsible officer, the grievant shall be so notified and advised that
the grievance may be submitted directly to the agency for review under
Sec. 16.8.
(c) Bureau or post review. (1) If the responsible officer's written
response does not resolve the grievance to the grievant's satisfaction,
within 10 days of receiving it (or, if no response is received, within
25 days after first presenting the grievance), the grievant may pursue
the grievance by transmitting it in writing to the senior official, or
the designee in the bureau or post which has authority to resolve the
grievance. The written transmission shall include all the information
required by paragraph (b)(1) of this section and copies of any
correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall
provide the grievant with a written decision, including any proposed
resolution of the grievance. If the decision denies in whole or in part
the remedial action requested, the communication shall notify the
grievant of the time within which to submit the grievance for agency
review and the identity of the appropriate agency official to whom the
grievance should be addressed.
Sec. 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency
review if the grievance (i) is not within the jurisdiction of a post or
bureau, or (ii) the grievance has been considered but not resolved to
the grievant's satisfaction within the post or bureau as provided in
Sec. 16.7(c) within 10 days after receipt of the post's or bureau's
decision (or, if no response is received, within 25 days after
presenting it to the senior official or the designee). The grievant
shall submit it in writing to the responsible official of the agency
which
[[Page 65]]
has control of the act or condition which is the subject of the
grievance.
(2) Responsible officials. The responsible officials of the agencies
are the Deputy Assistant Secretary for Personnel (State), the Director
of Personnel and Manpower (AID), and the Chief, Employee-Management
Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a
description of the act or condition which is the subject of the
grievance; its effect on the grievant; any provision of law, regulation
or agency policy which the grievant may believe was violated or
misapplied; copies of any correspondence under Sec. 16.7(a), any
documentary evidence readily available to the grievant on which the
grievance rests; the identity of individuals having knowledge of
relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the
basis of available documentary evidence, and, in that official's
discretion, interview persons having knowledge of the facts. The agency
review shall be completed and its decision dispatched within 90 days
from the date of the initial written presentation of the grievance. The
grievant shall be informed in writing of the findings of the responsible
official and any proposed resolution of the grievance. The communication
shall also include the time within which the grievant may file a
grievance with the Grievance Board and the appropriate procedure to be
followed in this respect.
Sec. 16.9 Records.
All official records concerning agency consideration of grievances,
except those appropriate to implementation of decisions favorable to
grievants, shall be kept separate from the official personnel record of
the grievant and any other individuals connected with the grievance, and
shall not be accessible to agency personnel other than the grievant, the
grievant's representative, and those responsible for consideration of
grievances.
Sec. 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a
Foreign Service Grievance Board for the Department of State, the Agency
for International Development and the U.S. Information Agency to
consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor
more than 15 members (including a chairperson) who shall be independent,
distinguished citizens of the United States, well known for their
integrity, who are not active officers, employees, or consultants of the
Foreign Affairs agencies (except consultants who served as public
members of the Interim Grievance Board previously established under
section 660, Volume 3, Foreign Affairs Manual) but may be retired
officers or employees. On its initial establishment, the Board shall
consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members
designated by the chairperson, except that hearings within the
continental United States shall be held by panels of at least three
members unless the parties agree otherwise. Reference in these
regulations to the Grievance Board shall be considered to be reference
to a panel or member of the Grievance Board where appropriate. All
members of the Grievance Board shall act as impartial individuals in
considering grievances.
(d) The members of the Grievance Board, including the chairperson,
shall be appointed by the Secretary of State after being designated by
the written agreement of the Foreign Affairs agencies and the employee
organization.
(e) The Board chairperson and other members shall be appointed for
terms of 2 years, subject to renewal upon the agreement of the Foreign
Affairs agencies and the employee organization; except that the terms of
7 of the initially appointed members shall expire at the end of one
year.
(f) Any vacancies shall be filled by the Secretary of State upon the
nomination by the Board following the
[[Page 66]]
agreement of the agencies and the employee organization.
(g) Compensation. Members, including the chairperson, who are not
employees of the Federal Government shall receive compensation for each
day they are performing their duties as members of the Grievance Board
(including travel time) at the daily rate paid an individual at GS-18
level of the General Schedule under section 5332 of title 5 of the
United States Code.
(h) Removal. Grievance Board members shall be subject to removal by
the Secretary of State for corruption, other malfeasance, or the
demonstrated incapacity to perform their functions. No member shall be
removed from office until after the Board of the Foreign Service has
conducted a hearing and made its recommendations in writing to the
Secretary of State, except where the right to a hearing is waived in
writing. The Board of the Foreign Service shall provide a member with
full notice of the charges against that member, and afford a member the
right to counsel, to examine and cross-examine witnesses, and to present
documentary evidence.
(i) Grievance Board procedures. In accordance with part J, title VI
of the Act, the Board may adopt regulations concerning the organization
of the Board and such other regulations as mey be necessary to govern
its proceedings.
(j) Board facilities and staff support. The Grievance Board may
obtain facilities, services, and supplies through the general
administrative services of the Department of State. All expenses of the
Board, including necessary costs of the grievant's travel and travel-
related expenses, shall be paid out of funds appropriated to the
Department for obligation and expenditure by the Board. At the request
of the Board, officers and employees on the rolls of the Foreign Affairs
agencies may be assigned as staff employees to the Grievance Board.
Within the limit of appropriated funds, the Board may appoint and fix
the compensation of such other employees as the Board considers
necessary to carry out its functions. The officers and employees so
appointed or assigned shall be responsible solely to the Grievance Board
and the Board shall prepare the performance evaluation reports for such
officers and employees. The records of the Grievance Board shall be
maintained by the Board and shall be separate from all other records of
the Foreign Affairs agencies.
Sec. 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved
satisfactorily under agency procedures (Sec. 16.7) shall be entitled to
file a grievance with the Grievance Board no later than 60 days after
receiving the agency decision. In the event that an agency has not
provided its decision within 90 days of presentation, the grievant shall
be entitled to file a grievance with the Grievance Board no later than
150 days after the date of presentation to the agency. The Board may
extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance
Board finds that a grievance has not been presented for agency
consideration or that a grievance has been expanded or modified to
include materially different elements, the Board shall return the
grievance to the official responsible for final agency review unless the
agency waives any objection to Board consideration of the grievance
without such review.
(c) Prescription of interim relief. If the Grievance Board
determines that the agency is considering any action of the character of
separation or termination of the grievant, disciplinary action against
the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending
before the Board, and that such action should be suspended, the agency
shall suspend such action until the Board has ruled upon the grievance.
Notwithstanding such suspension of action, the head of the agency
concerned or a chief of mission or principal officer may exclude an
officer or employee from official premises or from the performance of
specified duties when such exclusion is determined in writing to be
essential to the functioning of the post or office
[[Page 67]]
to which the officer or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at
the request of a grievant in any case which involves disciplinary
action, or a grievant's retirement from the Service under sections 633
and 634 of the Act, or which in the judgment of the Board can best be
resolved by a hearing or by presentation of oral argument. In those
grievances in which the Board holds no hearing, the Board shall offer to
each party the opportunity to review and to supplement, by written
submission, the record of proceedings prior to its decision.
Sec. 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable
number of representatives of the grievant's own choosing, and a
reasonable number of agency representatives, are entitled to be present
at the hearing. The Grievance Board may, after considering the views of
the parties and any other individuals connected with the grievance,
decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by
oath or affirmation which any Board member or person designated by the
Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine
witnesses at the hearing or by deposition, and to serve interrogatories
answered by the other party unless the Board finds such interrogatory
irrelevant or immaterial. Upon request of the Board, or upon a request
of the grievant deemed relevant and material by the Board, and agency
shall promptly make available at the hearing or by deposition any
witness under its control, supervision or responsibility, except that if
the Board determines that the presence of such witness at the hearing is
required for just resolution of the grievance, then the witness shall be
made available at the hearing, with necessary costs and travel expenses
provided by the agency.
(3) During any hearings held by the Board, any oral or documentary
evidence may be received but the Board shall exclude any irrelevant,
immaterial, or unduly repetitious evidence normally excluded in hearings
conducted under the Administrative Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be
part of the record of proceedings.
Sec. 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record
as the Board may find appropriate in the absence of a hearing, the board
shall expeditiously decide the grievance on the basis of the record of
proceedings. In each case the decision of the Board shall be in writing,
shall include findings of fact, and shall include the reasons for the
Board's decision.
(b) If the Grievance Board finds that the grievance is meritorious,
the Board shall have the authority within the limitations of the
authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the
grievant which the Board finds to be inaccurate, erroneous, or falsely
prejudicial;
(2) To reverse and administrative decision denying the grievant
compensation including related within-class salary increases pursuant to
section 625 of the Act or any other perquisite of employment authorized
by law or regulation when the Board finds that such denial was
arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in
consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and
regulations, an employee where it is clearly established that the
separation or suspension without pay of the employee was unjustified or
unwarranted;
(5) To order an extension of the time of an employee's eligibility
for promotion to a higher class where the employee suffered career
impairment in consequence of the matter by which the employee is
aggrieved;
(6) To order that an employee be provided with facilities relating
to the physical working environment which
[[Page 68]]
the employee has been denied arbitrarily, capriciously or in violation
of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial
review as provided for in section 694 of the Act, except that
reinstatement of former officers who have filed grievances under Sec.
16.1(c)(7) shall be presented as Board recommendations, the decision on
which shall be subject to the sole discretion of the agency head or
designee, who shall take into account the needs of the Service in
deciding on such recommendations, and shall not be subjected to judicial
review under section 694 of the Act. The reason(s) for the agency head's
(or designee's) decision will be conveyed in writing to the Board and
the grievant.
(d) If the Board finds that the grievance is meritorious and that
remedial action should be taken that directly relates to promotion or
assignment of the grievant, or to other remedial action, including
additional step increases, not provided for in paragraph (b) of this
section, or if the Board finds that the evidence before it warrants
disciplinary action against any officer or employee, it shall make an
appropriate recommendation to the head of the agency, and forward to the
head of the agency the record of the Board's proceedings, including the
transcript of the hearing, if any. The head of the agency (or designee,
who shall not have direct responsibility for administrative management)
shall make a written decision to the parties and to the Board on the
Board's recommendation within 30 days from receipt of the
recommendation. A recommendation of the Board may be rejected in part or
in whole if the action recommended would be contrary to law, would
adversely affect the foreign policy or security of the United States, or
would substantially impair the efficiency of the Service. If the
decision rejects the Board's recommendation in part or in whole, the
decision shall state specifically any and all reasons for such action.
Pending the decision, there shall be no ex parte communications
concerning the grievance between the agency head, or designee, and any
person involved in the grievance proceeding.
Sec. 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the
Board may obtain reconsideration by the Board only upon presenting newly
discovered or previously unavailable material evidence not previously
considered by the Board and then only upon approval of the Board.
Sec. 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations,
and revisions thereto, and final actions of the agency head (or
designee) or the Grievance Board hereunder, in the District Courts of
the United States, in accordance with the standards set forth in chapter
7 of title 5 of the United States Code. Section 706 of title 5 shall
apply without limitation or exception.
PART 17_OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND
UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)--Table of Contents
Sec.
17.1 General.
17.2 Conditions for waiver of recovery of an overpayment.
17.3 Fault.
17.4 Equity and good conscience.
17.5 Financial hardship.
17.6 Ordinary and necessary living expenses.
17.7 Waiver precluded.
17.8 Burdens of proof.
17.9 Procedures.
Authority: 22 U.S.C. 4047(d); 22 U.S.C. 4071(b); 5 U.S.C. 8470(b); 5
CFR 845.301-07.
Source: 71 FR 16229, Mar. 31, 2006, unless otherwise noted.
Sec. 17.1 General.
This part establishes procedures for notifying individuals of their
rights if they have received an overpayment from the Foreign Service
Retirement and Disability Fund under Chapter 8 of the Foreign Service
Act of 1980, as amended, including their right to contest the
determination that there has been an overpayment and the right to
request a waiver of recovery of the
[[Page 69]]
overpayment. This part also provides the procedures for administrative
determination of these rights and for appeals of negative
determinations.
Sec. 17.2 Conditions for waiver of recovery of an overpayment.
(a) Foreign Service Retirement and Disability System. Recovery of an
overpayment from the Foreign Service Retirement and Disability Fund
under the Foreign Service Retirement and Disability System may be waived
pursuant to section 4047(d), of title 22, United States Code when the
individual is without fault and recovery would be against equity and
good conscience or administratively infeasible.
(b) Foreign Service Pension System. Recovery of an overpayment from
the Foreign Service Retirement and Disability Fund under the Foreign
Service Pension System may be waived pursuant to section 4071(b) of
title 22, United States Code and section 8470(b) of title 5, United
States Code when the individual is without fault and recovery would be
against equity and good conscience.
(c) When it has been determined that the recipient of an overpayment
is ineligible for waiver, the individual is nevertheless entitled to an
adjustment in the recovery schedule if he or she shows that it would
cause him or her financial hardship to make payment at the rate
scheduled.
Sec. 17.3 Fault.
A recipient of an overpayment is without fault if he or she
performed no act of commission or omission that resulted in the
overpayment. The fact that the Department of State or other agency may
have been at fault in initiating an overpayment will not necessarily
relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are--
(1) Whether payment resulted from the individual's incorrect but not
necessarily fraudulent statement, which he/she should have known to be
incorrect;
(2) Whether payment resulted from the individual's failure to
disclose material facts in his/her possession which he/she should have
known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should
have known to be erroneous.
(b) Mitigation factors. The individual's age, physical and mental
condition or the nature of the information supplied to him or her by the
Department of State or a Federal agency may mitigate against finding
fault if one or more contributed to his or her submission of an
incorrect statement, a statement which did not disclose material facts
in his or her possession, or his or her acceptance of an erroneous
overpayment.
Sec. 17.4 Equity and good conscience.
(a) Defined. Recovery is against equity and good conscience when--
(1) It would cause financial hardship to the person from whom it is
sought;
(2) The recipient of the overpayment can show (regardless of his or
her financial circumstances) that due to the notice that such payment
would be made or because of the incorrect payment either he/she has
relinquished a valuable right or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
(b) [Reserved]
Sec. 17.5 Financial hardship.
(a) Waiver of overpayment will not be allowed in any case prior to
receipt and evaluation of a completed Statement of Financial Status,
duly sworn by the recipient of the overpayment.
(b) Financial hardship may be deemed to exist in, but not limited
to, those situations where the recipient from whom collection is sought
needs substantially all of his or her current income and liquid assets
to meet current ordinary and necessary living expenses and liabilities.
(1) Considerations. Some pertinent considerations in determining
whether recovery would cause financial hardship are as follows:
(i) The individual's financial ability to pay at the time collection
is scheduled to be made.
(ii) Income to other family member(s), if such member's ordinary and
[[Page 70]]
necessary living expenses are included in expenses reported by the
individual.
(c) Exemptions. Assets exempt from execution under State law should
not be considered in determining an individual's ability to repay the
indebtedness, rather primary emphasis shall be placed upon the
individual's liquid assets and current income in making such
determinations.
Sec. 17.6 Ordinary and necessary living expenses.
An individual's ordinary and necessary living expenses include rent,
mortgage payments, utilities, maintenance, food, clothing, insurance
(life, health and accident), taxes, installment payments, medical
expenses, support expenses when the individual is legally responsible,
and other miscellaneous expenses which the individual can establish as
being ordinary and necessary.
Sec. 17.7 Waiver precluded.
(a) Waiver of an overpayment cannot be granted when:
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(b) [Reserved]
Sec. 17.8 Burdens of proof.
(a) Burden of the Department of State. The Bureau of Resource
Management, Department of State, must establish by the preponderance of
the evidence that an overpayment occurred.
(b) Burden of individual. The recipient of an overpayment must
establish by substantial evidence that he or she is eligible for waiver
or an adjustment in the recovery schedule.
Sec. 17.9 Procedures.
(a) Notice. The Bureau of Resource Management, Department of State,
shall give written notification to any individual who has received an
overpayment promptly by first-class mail to the individual at the
individual's most current address in the records of the Bureau of
Resource Management. The written notice shall inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
(3) The intention of the Department to seek repayment of the
overpayment,
(4) The date by which payment should be made to avoid the imposition
of interest, penalties, and administrative costs;
(5) The applicable standards for the imposing of interest,
penalties, and administrative costs;
(6) The department's willingness to discuss alternative payment
arrangements and how the individual may offer to enter into a written
agreement to repay the amount of the overpayment under terms acceptable
to the Department; and
(7) The name, address and telephone number of a contact person
within the Bureau of Resource Management. The written notice also shall
inform the individual of their right to contest the overpayment, their
right to request a waiver of recovery of the overpayment, and the
procedures to follow in case of such contest or request for waiver of
recovery. The notification shall allow at least 30 days from its date
within which the individual may contest in writing the overpayment or
request a waiver of recovery, including with their submission all
evidence and arguments in support of their position.
(b) Administrative file. The Bureau of Resource Management will
prepare an administrative file as a basis for determination in each case
where an individual contests a claim to recover overpayment or requests
waiver of recovery of the overpayment. On the basis of the
administrative file, the Chief Financial Officer or his or her delegate,
shall make the final administrative determination.
(c) Additional information. At any time before the final
administrative decision, the Department may request the individual to
supplement his or her submission with additional factual information and
may request that the individual authorize the Department of State to
have access to bank and other financial records bearing on the
application of these regulations. If the individual, without good cause
shown, fails or refuses to produce the requested additional information
or authorization, the Department of State is entitled to make adverse
inferences with respect
[[Page 71]]
to the matters sought to be amplified, clarified, or verified.
(d) Decision and right of appeal. The final administrative decision
shall be reduced to writing and sent to the individual. If the decision
is adverse to the individual, the notification of the decision shall
include a written description of the individual's rights of appeal to
the Foreign Service Grievance Board. The Foreign Service Grievance Board
shall consider any appeal under this part in accordance with the
regulations of the Board set forth in 22 CFR part 901.
PART 18_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--Table of Contents
Subpart A_General Provisions
Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.
Subpart B_Applicable Rules
18.5 Interpretative standards; advisory opinions.
Subpart C_Administrative Enforcement Proceedings
18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.
Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.
Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 18.1 Scope.
This part contains rules governing disciplinary action against a
former officer or employee of the Department of State, including the
Foreign Service, because of a violation of the post employment conflict
of interest prohibitions. Such disciplinary action may include
prohibition from practice before the Department of State and any
component thereof as defined in this part.
Sec. 18.2 Definitions.
For the purpose of this part--
(a) The term Department means the Department of State and includes
the Foreign Service.
(b) The term Director General means the Director General of the
Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance
before, or, with the intent to influence, any oral or written
communication to the Department on a pending matter of business on
behalf of any other person (except the United States).
Sec. 18.3 Director General.
The Director General shall institute and provide for the conduct of
disciplinary proceedings involving former employees of the Department as
authorized by 18 U.S.C. 207(j), and perform such other duties as are
necessary or appropriate to carry out his/her functions under this part.
Sec. 18.4 Records.
The roster of all persons prohibited from practice before the
Department shall be available to public inspection at the Office of
Director General. Other records may be disclosed upon specific request,
in accordance with appropriate disclosure regulations of the Department.
Subpart B_Applicable Rules
Sec. 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in
conformance with the
[[Page 72]]
standards established in the interpretative regulations promulgated,
either in interim or final form by the Office of Government Ethics and
published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know
whether a proposed course of conduct would be in conformity with the Act
or the interpretive regulations thereunder may contact the Assistant
Legal Adviser for Management to request an advisory opinion.
Subpart C_Administrative Enforcement Proceedings
Sec. 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after
notice and opportunity for a hearing, that a former officer or employee
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the
Director General in his/her discretion may prohibit that person from
engaging in practice before the Department for a period not to exceed
five years, or may take other appropriate disciplinary action.
Sec. 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to
believe that a former officer or employee of the Department has violated
any provision of this part, or if any such officer or employee receives
information to that effect, he/she shall promptly make a written report
thereof, which report or a copy thereof shall be forwarded to the
Director General. If any other person has information of such
violations, he/she may make a report thereof to the Director General or
to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this
part with the Department of Justice in cases where it initiates criminal
prosecution.
Sec. 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient
reason to believe that any former officer or employee of the Department
has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an
administrative disciplinary proceeding. The proceeding may be for that
person's suspension from practice before the Department or for some
lesser penalty. The proceeding shall be instituted by a complaint which
names the respondent and is signed by the Director General and filed in
his/her office. Except in cases of willfulness, or where time, the
nature of the proceeding, or the public interest does not permit, a
proceeding will not be instituted under this section until facts or
conduct which may warrant such action have been called to the attention
of the proposed respondent in writing and he/she has been accorded the
opportunity to provide his/her position on the matter.
Sec. 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations
which constitute the basis for the proceeding. A complaint shall be
deemed sufficient if it fairly informs the respondent of the charges
against him/her so that the respondent is able to prepare a defense.
Written notification shall be given of the place and of the time within
which the respondent shall file his/her answer, which time shall not be
less than 15 days from the date of service of the complaint. Notice
shall be given that a decision by default may be rendered against the
respondent in the event he/she fails to file an answer.
Sec. 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail; by delivering it to the respondent or
his/her attorney or agent of record either in person; or by leaving it
at the office or place of business of the respondent, attorney or agent;
in any other manner which has been agreed to by the respondent; or by
first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a respondent as provided in paragraph (a)
of this section or by mailing the paper by first-class mail to the
respondent at the last address known to the Director General, or by
mailing the paper by first-class mail to the respondent's attorney or
[[Page 73]]
agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in
connection with a proceeding, and the place of filing is not specified
by this subpart or by rule or order of the hearing examiner, the paper
shall be filed with the Director General, Department of State,
Washington, DC 20520. All papers shall be filed in duplicate.
Sec. 18.11 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
General. The answer shall be filed in duplicate with the Director
General.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint. The respondent may also
state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved. Failure to file
an answer within the time prescribed in the notice to the respondent,
except as the time for answer is extended by the Director General shall
constitute a waiver of hearing, and the Director General may make his/
her decision by default without a hearing or further procedure.
Sec. 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed
with the Director General.
Sec. 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she
may be represented by counsel or other representative. The Director
General may be represented by an attorney or other employee of the
Department.
Sec. 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to
continue the administrative disciplinary proceedings, he/she shall
appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have
authority, in connection with any proceeding assigned or referred to
him/her, to do the following:
(1) Take evidence under appropriate formalities;
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time
as occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and
examine witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the
settlement or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
Sec. 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the
testimony of witnesses shall be taken under oath or affirmation.
Hearings will be closed unless an open hearing is requested by the
respondent, except that if classified information or protected
information of third parties is likely to be adduced at the hearing, it
will remain closed. If either party to the proceeding fails to appear at
the hearing, after due notice thereof has been sent to him/her, he/she
shall be deemed to have waived the right to a hearing and the hearing
examiner may make a decision against the absent party by default.
Sec. 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not
controlling in hearings under this part.
[[Page 74]]
However, the hearing examiner shall exclude evidence which is
irrelevant, immaterial, or unduly repetitious.
Sec. 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the
parties in writing or the written approval of the hearing examiner, be
taken by either the Director General or the respondent or their duly
authorized representatives. Depositions may be taken upon oral or
written interrogatories. There shall be at least 10 days written notice
to the other party. The requirement of a 10-day written notice may be
waived by the parties in writing. When a deposition is taken upon
written interrogatories, any cross-examination shall be upon written
interrogatories. Copies of such written interrogatories shall be served
upon the other party with the notice, and copies of any written cross-
interrogation shall be mailed or delivered to the opposing party at
least 5 days before the date of taking the depositions, unless the
parties mutually agree otherwise. Expenses in the reporting of
depositions shall be borne by the party at whose instance the deposition
is taken.
Sec. 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
hearing examiner, prior to making his/her decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
Sec. 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the hearing examiner shall make the initial decision. The
decision shall include
(a) A statement of findings and conclusions, as well as the reasons
or basis therefor, upon all the material issues of fact, law, or
discretion presented on the record, and
(b) An order of suspension from practice before the Department or
other appropriate disciplinary action, or an order of dismissal of the
complaint. The hearing examiner shall file the decision with the
Director General and shall transmit a copy thereof to the respondent or
his/her attorney of record. A party adversely affected by the decision
shall be given notice of his or her right to appeal to the Board of
Appellate Review (part 7 of this chapter) within 30 days from the date
of the hearing examiner's decision.
Sec. 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner's decision,
either party may appeal to the Board of Appellate Review. The appeal
shall be taken by filing notice of appeal, in triplicate, with the Board
of Appellate Review, which shall state with particularity exceptions to
the decision of the hearing examiner and reasons for such exceptions. If
an appeal is by the Director General, he/she shall transmit a copy
thereof to the respondent. Within 30 days after receipt of an appeal or
copy thereof, the other party may file a reply brief, in triplicate,
with the Board of Appellate Review. If the reply brief is filed by the
Director General, he/she shall transmit a copy of it to the respondent.
The Director General shall transmit the entire case record to the Board
of Appellate Review within 30 days after an appeal has been taken.
Sec. 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis
of the record. The decision of the Board shall be final, and not subject
to further administrative review. Copies of the Board's decision shall
be forwarded promptly to the parties by the Board.
Sec. 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or
employee from practice before the Department, the Director General shall
give notice thereof to appropriate officers and employees of the
Department. Officers and employees of the Department shall refuse to
participate in any appearance by such former officer or employee or to
accept any communication
[[Page 75]]
which constitutes the prohibited practice before the Department during
the period of suspension. The Director General shall take other
appropriate disciplinary action as may be required by the final order.
PART 19_BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM--Table of Contents
Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of
payments to former spouses.
19.5 Required notifications to department respecting spouses and former
spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or
former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.
19.10-5 Reduced annuity with additional survivor annuity to spouse of
former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.
Authority: Secs. 206 and 801 of Foreign Service Act of 1980 (94
Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).
Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted.
Redesignated at 46 FR 18970, Mar. 27, 1981.
Sec. 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94
Stat. 2102) (hereafter ``the Act''), and any Executive order issued
under authority of section 827 of the Act.
Sec. 19.2 Definitions.
(a) Agencies means the Department, the Agency for International
Development (AID), the International Communication Agency (USICA), the
Foreign Agricultural Service (FAS), and the Foreign Commercial Service
(FCS).
(b) Annuitant means any person including a former participant or
survivor who meets all requirements for an annuity from the Fund under
the provisions of the Foreign Service Act of 1980, or any other law and
who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative
action before deductions and exclusive of additional compensation of any
kind. It includes the salary fixed by sections 401, 402, 403, and 406 of
the Act and salary incident to assignment under section 503 of the Act.
Basic salary excludes premium pay for overtime,
[[Page 76]]
night, Sunday and holiday work, allowances, post and special
differentials, and charg[eacute] pay.
(d) Chief of Mission means a principal officer in charge of a
diplomatic mission of the United States or of a United States Office
abroad which has been designated diplomatic in nature or any member of
the Foreign Service assigned under the terms of the Act to be
charg[eacute] d'affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an
unmarried child, under the age of 18 years, or such unmarried child
regardless of age who because of physical or mental disability incurred
before age 18 is incapable of self-support. In addition to the offspring
of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than
one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was
filed by a participant, and who is adopted by the surviving spouse of
the participant after the latter's death. ``Child'' also means an
unmarried student under the age of 22 years. For this purpose, a child
whose twenty-second birthday occurs before July 1 or after August 31 of
a calendar year, and while a student, is deemed to have become 22 years
of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of
Columbia.
(g) Court Order means any court decree of divorce or annulment, or
any court approved property settlement agreement incident to any court
decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of
divorce or annulment.
(j) Expressly provided for means a direction by a court order to
divide a member's Foreign Service Retirement benefits or survivor
benefits and awarding a portion of such benefits to an eligible
beneficiary.
(k) Former spouse \1\ means a former wife or husband of a
participant or former participant who was married to such participant
for not less than ten years during periods of service by that
participant which are creditable under section 816 of the Act provided
the participant was making contributions to the Fund under section 805
of the Act during some portion of such service, and provided the divorce
occurred after February 15, 1981. For this purpose, a former spouse
shall not be considered as married to a participant for periods assumed
to be creditable under section 808 of the Act in the case of a
disability annuity or section 809 of the Act in the case of a death in
service. A former spouse will be considered married to a participant for
any extra period of creditable service provided under section 817 of the
Act for service at an unhealthful post during which the former spouse
resided with the participant. See Sec. 19.5-3 for procedures to
determine this extra period of marriage.
---------------------------------------------------------------------------
\1\ Note: Section 804(6) of the Act defines ``former spouse'' with
respect to duration of marriage as being married to a participant ``for
not less than 10 years during periods of service by that participant
which are creditable under section 816.'' The Department interprets this
as necessarily implying that the marriage must have covered a period of
at least one day while the member of the Foreign Service was a
participant in the System.
---------------------------------------------------------------------------
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department's Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service
after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric
Administration or predecessor organization after June 30, 1961.
However, this definition does not include service in the National Guard,
except when ordered to active duty in the service of the United States.
(o) Participant means a person as described in Sec. 19.3.
[[Page 77]]
(p) Previous spouse means any person formerly married to a
principal, whether or not such person qualifies as a former spouse under
paragraph (k) of this section.
(q) Principal means a participant or former participant whose
service forms the basis for a benefit under chapter 8 of the Act for a
spouse, previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department's Retirement Division in the
Bureau of Personnel.
(s) Pro rata share means, in the case of any former spouse of any
participant or former participant, a percentage which is equal to the
percentage that (1) the number of years and months during which the
former spouse was married to the participant during the creditable
service of that participant is of (2) the total number of years and
months of such creditable service. When making this calculation, item
(1) is adjusted in accordance with paragraph (k) of this section and
item (2) is adjusted in accordance with Sec. 19.4. In the total period,
30 days constitutes a month and any period of less than 30 days is not
counted.
(t) Spousal agreement means any written agreement between a
participant or former participant, and the participant's spouse or
former spouse.
(u) Student means a child regularly pursuing a full-time course of
study or training in residence in a high school, trade school, technical
or vocational institute, junior college, university, or comparable
recognized educational institution. A child who is a student shall not
be deemed to have ceased to be a student during any interim between
school years, semesters, or terms if the interim or other period of
nonattendance does not exceed 5 calendar months and if the child shows
to the satisfaction of the Retirement Division (PER/ER/RET) that the
child has a bona fide intention of continuing to pursue such course
during the school year, semester, or term immediately following the
interim.
(v) Surviving spouse means the surviving wife or husband of a
participant or annuitant who, in the case of death in service or
marriage after retirement, was married to the participant or annuitant
for at least one year immediately preceding death or is the parent of a
child born of the marriage.
(w) System means the Foreign Service Retirement and Disability
System.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.3 Participants.
The following persons are participants in the System:
(a) Members of the Service serving under a career appointment or as
a career candidate under section 306 of the Act (1) in the Senior
Foreign Service, or (2) assigned to a salary class in the Foreign
Service Schedule;
(b) Any person not otherwise entitled to be a participant who has
served as chief of mission or an ambassador at large for an aggregate
period of 20 years or more, exclusive of extra service credit for
service at unhealthful posts, and who has paid into the Fund a special
contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee
and who completed, prior to February 15, 1981, at least 5 years of
satisfactory service as a grantee, as determined by the Director of
Personnel of USICA, or under any other appointment under the Foreign
Service Act of 1946, as amended, who has paid into the Fund a special
contribution for such service.
(d) Any person converted to the competitive service pursuant to
section 2104 of the Act who elects to participate in the System pursuant
to section 2106(b)(1) or (2) shall remain a participant so long as he/
she is employed in an agency which is authorized to utilize the Foreign
Service personnel system.
Sec. 19.4 Special rules for computing creditable service for purposes of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor
annuity or lump-sum payable to a former spouse, the following shall be
considered creditable service--
(a) The entire period of a principal's approved leave without pay
during full-time service with an organization composed primarily of
Government employees irrespective of whether the
[[Page 78]]
principal elects to make payments to the Fund for this service;
(b) The entire period of Government service for which a principal
received a refund of retirement contributions which he/she has not
repaid unless the former spouse received under Sec. 19.13 a portion of
the (lump-sum) refund or unless a spousal agreement or court order
provided that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years.
The period covered by the credit for unused sick leave is not creditable
for this purpose.
Sec. 19.5 Required notifications to Department respecting spouses and former spouses.
Sec. 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of
the divorce on or prior to its effective date. The notice shall include
the effective date of the divorce, the full name, mailing address, and
date of birth of the former spouse and the date of the member's marriage
to that person, and enclose a certified copy of the divorce decree. If
there is a court order or spousal agreement concerning payment or
nonpayment of Foreign Service benefits to the former spouse, the
original or a certified copy of the order or agreement shall also be
forwarded to PER/ER/RET. In the absence of a court order or spousal
agreement providing otherwise, the Department will pay a pro rata share
of the member's benefits to the former spouse. (A former spouse of a
former participant who separated from the Service on or before February
15, 1981 is not eligible for a pension under Sec. 19.9, i.e., not
eligible for a pro rata share of the principal's annuity.) Upon receipt
of notice of a divorce, a court order, or spousal agreement, the
Department will proceed as indicated in Sec. 19.6 or Sec. 19.7.
Delinquent notice to the Department of the divorce of an annuitant will
result in retroactive payments to any qualified former spouse to the
extent that the retroactive payments can be deducted from future annuity
payments to the principal as stated in Sec. 19.6-4.
Sec. 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the
following on a timely basis:
(a) A divorce from a participant or former participant when the
former spouse is notified by the court of the divorce before the
participant is notified;
(b) Any change in address; and
(c) Any remarriage.
Notices shall be sent to the Department of State, Attention PER/ER/RET,
Washington, DC 20520.
Sec. 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former
spouse, and the determination of whether a person qualifies as a
``former spouse'' depends on the length of the marriage. The latter,
under the definition in the Act and when the principal has received
extra service credit for an assignment to an unhealthful post, depends
upon whether a spouse has resided with the principal at the unhealthful
post. In order to determine residency for this purpose, whenever a
married participant is assigned to an unhealthful post for which he/she
does not receive post differential and does receive or request extra
service credit, the participant shall report on Form OF-140, Election to
Receive Extra Service Credit Towards Retirement, whether his/her spouse
is or is not residing at the post. Although a chief of mission is not
required to submit Form OF-140 in order to receive extra credit for
service at an unhealthful post, he/she must nevertheless submit this
form if the chief of mission has a spouse that does not accompany him/
her at post for the entire assignment. Both the participant and spouse
shall sign the completed form. If there is a change in residence of the
spouse during the assignment, a new joint Form OF-140 shall be filed to
report the change.
(b) Whenever a participant retires or becomes divorced, or whenever
a former participant becomes divorced
[[Page 79]]
who has extra service credit for assignment at unhealthful posts
completed prior to the issuance of this regulation who was married
during at least a portion of the assignment, the participant or former
participant shall submit a statement to PER/ER/RET reporting on whether
his/her spouse resided at the unhealthful post and the dates of such
residence. The statement shall be signed by the principal and his/her
spouse or former spouse whenever possible.
(c) In the event of a disagreement between a principal and his/her
spouse or former spouse concerning residency at an unhealthful post, or
the submission of a report or statement by a principal showing a period
of nonresidence at a post by a spouse which is not signed by the spouse,
the determination of residence will be made by PER/ER/RET and based on
records in the Department of payments for travel and allowances plus any
other evidence that can be adduced. In the absence of any evidence to
the contrary, the assumption will be made that the spouse resided at the
post.
Sec. 19.6 Court orders and divorce decrees.
Sec. 19.6-1 Orders by a court.
(a) A court may--
(1) Fix the amount of any pension to a former spouse under Sec.
19.9, or order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former
spouse under paragraphs (a) and (b) of Sec. 19.11, or order that none
be paid;
(3) Order provision of an additional survivor annuity for a spouse
or former spouse under Sec. 19.10-5;
(4) Fix the amount of any benefit under Sec. 19.10-6 based on
recall service payable to a former spouse to whom the annuitant was
married during any portion of the recall service, or order that none be
paid;
(5) Fix the amount of any lump-sum payable to a former spouse under
Sec. 19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in
Sec. 19.8 between a participant and a former spouse, and pursuant to
any court decree of divorce, legal separation or annulment or any court
ordered or approved property settlement agreement incident to any court
decree of divorce, legal separation, or annulment, that any payment from
the Fund which would otherwise be made to a former participant based on
his/her service shall be paid (in whole or in part) by the Secretary of
State to a previous spouse or child of such participant. No
apportionment under this paragraph may be made of a payment authorized
to be paid to a survivor of a participant or annuitant.
(b) An order by a court that does not meet the definition of
``court'' in Sec. 19.2(f) is not valid for purposes of this section
even though a divorce decree issued by such court may be a basis for pro
rata share payments to a former spouse as described in these
regulations.
Sec. 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be
found to be ``qualified'' by PER/ER/RET acting for the Secretary of
State. A qualifying court order must--
(1) Be consistent with the terms of the Act and applicable
regulations;
(2) Not direct payment of an amount in excess of the maximum amount
authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a
principal's Foreign Service retirement benefit or survivor benefit. If a
court directs or implies that a principal, rather than the Secretary of
State or the Government, make the payments, the order will not be
considered qualified unless the principal does not object during the 30-
day notice period provided under Sec. 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it
can be readily calculated from information in the normal files of the
Department;
(5) Not make payment contingent upon events other than those on
which other payments from the Fund are based such as age, marital status
and school attendance; and
(6) Not be in conflict with any previously issued court order which
remains valid.
[[Page 80]]
(b) No apportionment of annuity to a beneficiary under Sec. 19.6-
1(a) (1) or (6) shall exceed the net annuity of the principal. The net
annuity is computed by excluding from the gross annuity the amounts
which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906
of Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life
Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts
withheld are not greater than they would be if the individual claimed
all dependents to which he/she was entitled.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the
beneficiary must submit an application in writing to the Chief of the
Retirement Division (PER/ER/RET), Department of State, Washington, DC
20520. The application must be typed or printed, signed by the
beneficiary, and include--
(1) The full name, date of birth, current address and current
marital status of the beneficiary;
(2) Full name and date of birth of the participant or former
participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former
spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended,
superseded, or set aside;
The original of the court order or a recently certified copy must be
enclosed with the application, or a statement appended that such a copy
has been sent to the Department by other means.
(b) When payments are subject to termination upon the occurrence of
a condition subsequent, such as marriage, remarriage or termination of
schooling, or death of the principal, no payment will be made until the
beneficiary submits a statement to PER/ER/RET that--
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15
calendar days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her
resulting from the occurrence of the condition subsequent. PER/ER/RET
may require periodic recertification of these statements.
Sec. 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a
former spouse under Sec. 19.9 may not be given effect by the Department
if it is issued more than 12 months after the divorce becomes final. A
court order adjusting the amount of a regular or additional survivor
annuity to a former spouse under Sec. 19.11-2 or Sec. 19.10-5 may not
be given effect by the Department if it is issued after the death of the
principal.
(b) A court order issued within 12 months after a divorce becomes
final directing payment of a pension to a former spouse in an amount
other than provided in Sec. 19.9 may be made retroactively effective to
the first of the month in which the divorce becomes final if so
specified by the court. In such event, the Department will adjust any
future payments that may become due to an annuitant and a former spouse
by increasing one and correspondingly reducing the other in order to
give effect to the order of the court. However, if future payments to
one party are not due, as for example if a court orders that no payments
be made to a former spouse, or that 100 percent of an annuity be paid as
pension to a former spouse, the Department will not give retroactive
effect to a court order by collecting overpayments from one party in
order to pay them to the other party and will not make overpayments from
the Fund.
(c) A court order under this chapter involving any payment other
than a pension to a former spouse under Sec. 19.9 may not be given
retroactive effect and shall not be effective until it is determined to
be a qualifying order under Sec. 19.6-5.
[[Page 81]]
Sec. 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under Sec. 19.6-3,
PER/ER/RET will determine whether--
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is
completed, the beneficiary is eligible and the court order appears on
its face to be a qualifying order, PER/ER/RET will provide the
notification required by Sec. 19.6-6, otherwise, it will notify the
applicant of any deficiency or requirement for additional information,
and if the order is determined to be non-qualifying, the basis for such
determination.
(b) Upon receipt of a certified copy of a final decree of divorce,
PER/ER/RET will determine whether--
(1) It is a valid decree. Any decree recognized as valid by the
parties will be considered valid for this purpose. In addition, any non-
recognized decree will be considered valid for this purpose unless:
(i)(A) Neither party was domiciled within the court's jurisdiction,
and
(B) The party denying recognition did not participate in the
proceedings, or
(ii) The party denying recognition was not afforded notice of the
proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse.
If a divorce decree is deemed valid under this paragraph, a pro rata
share payment is due a former spouse unless PER/ER/RET is in receipt of
a court order which it has deemed qualified under paragraph (a) of this
section, or a valid spousal agrement providing otherwise. If it
determines that a pro rata share payment is due, it will provide the
notification required by Sec. 19.6-6, otherwise, unless action is being
taken pursuant to a related court order, it will notify both parties to
the divorce the reason a pro rata share payment is not payable.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a
former spouse or other eligible beneficiary--
(1) a court order which it deems qualified that requires payment to
the beneficiary; or
(2) A final decree of divorce which it deems valid together with a
request for a pro rata share payment--PER/ER/RET will send a copy of the
document to the principal and a notice stating: (i) That PER/ER/RET
deems the order qualified or the divorce decree valid, (ii) that
payments will be made from the principal's account to the beneficiary
and the effective date of such payments, (iii) the effect of such
payments on the principal's retirement benefit. In the case of any court
order with retroactive or immediate effect, and in the case of pro rata
share payments, the amounts will be withheld from future payments to the
principal but will not be paid to the beneficiary for 30 days from the
notice date in order to give the principal an opportunity to contest the
court order or the validity of the divorce.
PER/ER/RET will provide the former spouse or other beneficiary the same
information, stating the exact amount that will be payable to the
beneficiary and explaining how that amount was calculated.
(b) Notification to a former spouse. When PER/ER/RET receives from a
principal--(1) a court order which it deems qualified that requires or
forbids payment to a former spouse; or (2) a final decree of divorce
which it deems valid without an accompanying court order--PER/ER/RET
will send a copy of the document to the former spouse and a notice
stating: (i) That PER/ER/RET deems the court order qualified or the
divorce decree valid, (ii) that PER/ER/RET intends to honor the court
decree or to make pro rata share payments because of the divorce, (iii)
the effective date, exact amount, and method of calculation of any
payments to the former spouse.
PER/ER/RET will provide the same information to the principal and will
explain the effect any payment to a
[[Page 82]]
former spouse will have on the principal's retirement benefit.
Sec. 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a
principal within the 30-day period under Sec. 19.6-6a, payment will be
made in accordance with the notification. When a response is received,
the Chief, PER/ER/RET will consider the response. If it is shown that a
court order is not qualifying or that a divorce is not valid under terms
of the Act and these regulations, payment proposed in the notification
will not be made. In such a case, PER/ER/RET will advise both parties of
the basis for its decision and the alternative action, if any, that it
proposes to take.
(b) If a principal responding to a notification under Sec. 19.6-6a
objects to the payment or other action proposed by the Department in the
notification based on the validity of the court order or divorce decree,
and the record contains support for the objection, PER/ER/RET will grant
the principal 30 days to initiate formal legal action to determine the
validity of the objection, will continue to delay payment to the former
spouse or other beneficiary during this period, and will notify the
beneficiary of this action. If evidence is submitted that formal legal
action has been started within the 30-day period, the amount of any
proposed payment to a former spouse or other beneficiary will continue
to be withheld from any payments due the principal, but no payment will
be made to the former spouse or other beneficiary until a judicial
decision is rendered or agreement reached between the parties.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs
or implies that payment to the beneficiary is to be made by the
principal rather than the Secretary of State, the principal may make an
allotment to the beneficiary from his/her annuity. An annuitant may also
make an allotment from his/her annuity to a previous spouse in the
absence of a court order.
Sec. 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order
under Sec. 19.6-1(a)(6) only while the principal is living. Payment of
apportioned amounts will be made only to a previous spouse and/or the
children of the principal. Such payments will not be made to any of the
following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one
dollar and, in the absence of compelling circumstances, shall be in
whole dollars.
(c) In honoring and complying with a court order, the Department
shall not be required to disrupt the scheduled method of accruing
retirement benefits or the normal timing for making such payments,
despite the existence of any special schedule relating to a previous
spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the
retirement benefits, PER/ER/RET will initially determine the amount of
proper payment. That amount will only be increased by future cost-of-
living increases unless the court directs otherwise.
Sec. 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from
retirement benefits pursuant to a court order if such payment is made in
accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one
court order with respect to the same retirement benefits, the benefits
shall be available to satisfy the court orders on a first-come, first-
served basis.
(c) A previous spouse or other beneficiary may request that an
amount be withheld from the retirement benefits of a principal or
survivor of a principal which is less than the amount stipulated in a
court order, or otherwise scheduled to be paid to the beneficiary under
this chapter. This lower amount will be deemed a complete fulfillment
[[Page 83]]
of the obligation of the Department for the period in which the request
is in effect. See Sec. 19.14.
Sec. 19.7 Spousal agreements.
Sec. 19.7-1 Purpose.
A spousal agreement may be used by both parties to establish an
agreed-upon level of benefits to a spouse or a former spouse and to
relieve the participant of responsibility for providing a higher level
of benefits.
Sec. 19.7-2 Agreement with spouse.
(a) A spousal agreement between a participant and a spouse may waive
or fix the level of a regular survivor annuity under Sec. 19.11-3. If
an agreement is filed, it will assure the spouse that the agreed-upon
level of survivor annuity will be paid, irrespective of a future divorce
provided the survivor meets the definition of ``former spouse'' in Sec.
19.2(k). If an agreement is not filed, the participant's annuity will be
reduced under Sec. 19.10-2 to provide the maximum regular survivor
annuity for the spouse, but in the event of a future divorce if the
spouse meets the definition of ``former spouse,'' that person will be
entitled only to a pro rata share of the survivor annuity. An agreement
under this paragraph may be filed with PER/ER/RET at any time prior to
retirement (commencement of the principal's annuity).
(b) A spousal agreement between an annuitant and a spouse filed with
PER/ER/RET before commencement of a supplemental annuity for recall
service may waive a supplemental survivor annuity that would otherwise
be provided for a spouse under Sec. 19.10-6.
(c) A spousal agreement between a participant or former participant
and a spouse may be filed with PER/ER/RET at any time in accordance with
Sec. 19.10-5 and provide for an additional survivor annuity for the
spouse.
(d) A spousal agreement filed under paragraph (a), (b), or (c)
remains valid and binding in the event of divorce if the spouse
qualifies as a former spouse.
Sec. 19.7-3 Agreement with former spouse.
(a) A spousal agreement between a participant or former participant
and a former spouse may waive, reduce or increase the following benefits
for a former spouse;
(1) A pension under Sec. 19.9;
(2) A regular survivor annuity under Sec. 19.11-2;
(3) A supplemental survivor annuity under Sec. 19.10-6;
(4) A lump sum payment for regular or recall service under Sec.
19.13.
A spousal agreement shall also be used by a participant or former
participant who has a former spouse on February 15, 1981, to elect a
regular survivor annuity for such former spouse in accordance with Sec.
19.11-2(e). An agreement to establish or increase any benefit for a
former spouse entered into while the principal is married to someone
else, must be signed and agreed to by both the spouse and the former
spouse. An agreement affecting pension benefits may be filed at any time
and will govern payments made after its acceptance by PER/ER/RET. An
agreement affecting a regular survivor annuity must be filed before the
end of the 12-month period after the divorce involving that former
spouse or at the time of retirement, whichever occurs first, except as
authorized in Sec. 19.11-2(b) for persons retired on February 15, 1981,
or in Sec. 19.11-2(e) with respect to persons who were former spouses
on February 15, 1981. This filing requirement stated in the Act makes it
impossible to adjust, other than by court order, a regular survivor
annuity for a former spouse when the divorce occurs after a retirement
which occurs on or after February 15, 1981. The survivor annuity for the
former spouse in such case is fixed by any spousal agreement entered
into prior to the divorce, by Sec. 19.11-2 or by court order. An
agreement affecting supplemental survivor benefits or lump-sum payments
must be filed before the supplemental annuity of the principal begins or
lump-sum payment is made.
(b) A spousal agreement between a participant or former participant
and a former spouse may be filed with PER/ER/RET at any time in
accordance with Sec. 19.10-5 to provide an additional survivor annuity
for the former spouse.
[[Page 84]]
Sec. 19.7-4 Form of agreement.
(a) A spousal agreement is any legal agreement between the parties
accepted by PER/ER/RET as meeting the requirements of this section. If
in accordance with the regulations, PER/ER/RET will accept as a valid
spousal agreement a property settlement agreed to by the parties and
approved by a court regardless of the date of the agreement.
(b) A spousal agreement must either be authenticated by a court or
notarized.
Sec. 19.7-5 Limitations.
(a) A spousal agreement may not provide for any payment from the
Fund in excess of the amount otherwise authorized to be paid, or at a
time not authorized by these regulations, or to a person other than a
spouse or former spouse.
(b) A spousal agreement must be filed with the Department, Attention
PER/ER/RET, and accepted by that office as in conformance with the Act
and these regulations prior to the times specified in Sec. Sec. 19.7-2
and 19.7-3. That office will provide advice to the parties on the
validity of any proposed agreement and on proper format.
(c) A spousal agreement may apply only to payments from the Fund for
periods after receipt of a valid agreement by the Department.
(d) Paragraphs (b), (c) and (d) of Sec. Sec. 19.6-9 and 19.6-10
apply to spousal agreements and payments made pursuant to spousal
agreements to the same extent that they apply to court orders and court
ordered payments.
Sec. 19.7-6 Duration and precedence of spousal agreements.
(a) A spousal agreement may be revised or voided by agreement of the
parties (by filing a new agreement under this section) at any time prior
to the last day for filing an agreement determined in accordance with
Sec. 19.7-2 or Sec. 19.7-3, except spousal agreements for additional
survivor annuities are irrevocable. After the last day for filing a
particular agreement, such agreement is irrevocable.
(b) A valid spousal agreement entered into subsequent to the
issuance of a court order affecting the same parties will override the
court order, and shall govern payments from the Fund.
(c) A spousal agreement may not override a previous spousal
agreement involving the same principal but a different spouse or former
spouse without agreement of such spouse or former spouse.
Sec. 19.8 Obligations of members.
Participants and former participants are obligated by the Act and
these regulations to provide the following benefits to others and must
accept the necessary reductions in their own retirement benefits to meet
these obligations:
(a) A pension to a former spouse pursuant to Sec. 19.9;
(b) A court ordered apportionment of annuity to a previous spouse or
child under Sec. 19.6-1 (a)(6) (the benefit to a child referred to here
is paid during the annuitant's lifetime as distinguished from the
automatic survivorship annuity to a child described in Sec. 19.11-7);
(c) A regular survivor annuity to a former spouse who has not
remarried prior to age 60, and to a spouse to whom married when annuity
commences, pursuant to Sec. Sec. 19.11-2 and 19.11-3;
(d) An additional survivor annuity for a spouse or former spouse
under Sec. 19.10-5 when elected by the participant or ordered by a
court;
(e) Lump-sum payments to a former spouse pursuant to Sec. 19.13;
(f) Benefits ordered by a court under Sec. 19.6 or specified in a
spousal agreement under Sec. 19.7.
Sec. 19.9 Pension benefits for former spouses.
Sec. 19.9-1 Entitlement.
(a) Unless otherwise expressly provided by a spousal agreement under
Sec. 19.7 or a court order under Sec. 19.6, a person who, after
February 15, 1981, becomes a former spouse of a participant (or former
participant who separated from the Service after February 15, 1981) and
who has not remarried prior to becoming 60 years of age, becomes
entitled to a monthly pension benefit effective on a date determined
under Sec. 19.9-2 in an amount determined under Sec. 19.9-3.
[[Page 85]]
(b) A former spouse shall not be qualified for a pension under this
subsection if, before the commencement of that pension, the former
spouse remarries before becoming 60 years of age.
(c) A pension benefit under this section is treated the same as a
survivor annuity for purposes of Sec. 19.11-5(b): a former spouse who
elects to receive a pension under this section must waive simultaneous
receipt of any survivor annuity.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.9-2 Commencement and termination.
(a) The pension of a former spouse under this subsection commences
on the latter of the day the principal becomes entitled to a Foreign
Service annuity or on the first day of the month in which the divorce
becomes final. (Suspension or reduction of a Foreign Service annuity
because or reemployment does not affect the commencement of a pension to
a former spouse.) In the case of any former spouse of a disability
annuitant, the pension of such former spouse shall commence on the
latter of:
(1) The date the principal would qualify for an annuity (other than
a disability annuity) on the basis of his/her creditable service;
(2) The date the disability annuity begins; or
(3) The first of the month in which the divorce becomes final.
(b) The pension of a former spouse and the right thereto terminate
on:
(1) The last day of the month before the former spouse dies or
remarries before 60 years of age; or
(2) The date the annuity of the former participant terminates unless
the termination results from recall, reappointment or reinstatement in
the Foreign Service or reemployment in Government service.
Sec. 19.9-3 Computation and payment of pension to former spouse.
(a) A pension to a former spouse is paid monthly on the same date
that annuity is paid to the principal.
(b) No spousal agreement or court order may provide for a pension or
any combination of pensions to former spouses of any one principal which
exceeds the net annuity of the principal as defined in Sec. 19.6-2(b).
(c) A pension to a former spouse not fixed by a spousal agreement or
court order shall equal the former spouse's pro rata share of 50 percent
of the annuity to which the principal is entitled on the date the
divorce becomes final, or, if not then entitled to an annuity, 50
percent of the annuity to which the principal first becomes entitled
following that date. A pension to a former spouse of a disability
annuitant shall be calculated on the basis of an annuity for which the
participant would qualify if not disabled. A pension to a former spouse
will be increased by the same percentage of each cost-of-living
adjustment received by the principal.
(d) The Department will initiate payment of a pension to a former
spouse after complying with the notification and other procedures
described in Sec. 19.6.
(e) If a pension can not be paid because a former spouse is missing,
the principal may file an affidavit with PER/ER/RET that he/she does not
know the whereabouts of the former spouse. In such an event, the
principal and the Department will follow the procedures in Sec. 19.11-4
in an effort to locate the former spouse. The annuity of the principal
will be reduced by the amount of the pension to the former spouse even
though the latter is not being paid. If the former spouse has not been
located during the 12-month period following the date the principal
files an affidavit under this section, the annuity of the principal will
be recomputed effective from its commencing date (or on the date
following the last month a pension payment was made to the former
spouse) and paid without reduction of the amount of pension to the
former spouse. If the former spouse subsequently is located, pension
payments to him/her will be initiated at that time at the rate that
would have been payable had they been paid continuously from the
original effective date. The Department shall not be liable to make any
pension payments to the former spouse for the missing period if the
procedures under this section were faithfully complied with nor will the
Department be responsible for recovering any payments made to the
[[Page 86]]
principal for the benefit of the former spouse.
Sec. 19.9-4 Effect on annuitant.
Any pension payable to a former spouse under this section or
pursuant to any spousal agreement or court order shall be deducted from
the annuity of the principal. (See Sec. 19.6-4 concerning retroactive
adjustments.) If the annuity of such a principal in any month is
discontinued or reduced so that the net amount payable is less than the
pension to the former spouse or spouses of the principal because of
recall, reappointment or reinstatment in the Foreign Service or
reemployment in the Government service, the principal's salary, rather
than annuity, shall be reduced by the amount of the pension payment(s).
Such salary reductions shall be deposited in the Treasury to the credit
of the Fund. If a pension to a former spouse is discontinued for any
reason except a suspension pending a determination of entitlement, the
annuity of the principal shall be recomputed effective as of the date of
discontinuance of the pension, and paid as if the pension to the former
spouse had never been deducted.
Sec. 19.10 Types of annuities to members.
Sec. 19.10-1 Full annuity.
If a participant retires and does not provide a survivor annuity to
a spouse, former spouse or designated beneficiary, the participant
receives a ``full'' annuity. A full annuity means an annuity computed
without any survivorship reduction. Example: Average salary $20,000 and
maximum of 35 years of service.
Average basic annual salary for high 3 consecutive years of $20,000
service......................................................
Multiplied by 2 pct........................................... .02
---------
$400.00
Multiplied by 35 years of creditable service.................. .35
---------
Full annuity.................................................. $14,000
Sec. 19.10-2 Reduced annuity with regular survivor annuity to spouse or former spouse.
(a) At commencement of annuity, a participant or former participant
may provide a regular survivor annuity for any eligible former spouse
and, within the limits of paragraph (b) of this section, a regular
survivor annuity to any spouse to whom he/she is then married as
described in Sec. Sec. 19.11-2 and 19.11-3, respectively. A regular
survivor annuity for a spouse or former spouse equals 55 percent of the
portion of the retiree's annuity (up to the full amount) designated as
the base for the survivor annuity. To provide the survivor annuity, the
participant must accept a reduction in his/her full annuity equal to
2\1/2\ percent of the first $3,600 of the designated base, plus 10
percent of the balance of the base. If a regular survivor annuity is
being provided for both a spouse and a former spouse, the bases for each
are added and the calculation made as in the following example:
Participant's full annuity as computed in Sec. 19.10-1: $14,000.
Maximum regular survivor annuity is 55 percent of full annuity:
$7,700.
Case I (Participant has a spouse and former spouse at retirement) If
the pro rata share for a former spouse is 75 percent, the base for this
benefit will be 75 percent of $14,000: $10,500.
The base for the maximum regular survivor annuity for a spouse would
then be 25 percent of $14,000, or $3,500.
Combined base: $14,000.
Participant's full annuity reduced as follows:
2\1/2\ percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400:
$1,040.
Total reduction in participant's full annuity: $1,130.
Participant's reduced annuity: $12,870.
Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
Case II (Participant married at retirement with no former spouse.
All calculations made without reference to cost-of-living increases
described in Sec. 19.11-5d.)
Joint election of base for regular survivor annuity of 90 percent of
the maximum, or 90 percent of $14,000: $12,600.
Participant's full annuity reduced as follows:
2\1/2\ percent of first $3,600 of the base: $90.
Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000:
$900.
Total reduction in participant's full annuity: $990.
Participant's reduced annuity: $13,010.
In this example, if divorce occurs subsequent to retirement and a
court orders a 75 percent share for the former spouse, the base for the
survivor annuity for the former spouse would be 75 percent of $14,000:
$10,500.
[[Page 87]]
The participant's full annuity would then be reduced by $780 in
accordance with the above formula for this survivor benefit, and the
reduced annuity would be $14,000-780: $13,220.
If the former spouse qualifies for a pension as described in Sec.
19.9 based on a pro rata share of 75 percent, the pension would equal 50
percent of the participant's reduced annuity times 75 percent
(50%x$13,220x75%): 4,957.50.
The participant's reduced annuity would then be further reduced by
this pension ($13,220-$4,957.50) to provide an annuity to the former
participant of $8,262.50.
If this annuitant later remarried, the maximum base for the regular
survivor annuity for the new spouse would be the amount designated at
retirement, $12,600, less the amount committed to the former spouse,
$10,500: $12,600-10,500 or $2,100.
The survivor annuity for this spouse: 55 percent of $2,100 or
$1,555.
The election of this benefit for the new spouse would be made
individually by the annuitant since a marriage after retirement does not
give a spouse a right to participate in the election.
If the election is made to provide a regular survivor annuity to the
new spouse, all of the above calculations would be recomputed effective
the first day of the month beginning one year after the date of the
remarriage, as follows:
Base for survivor annuity for former spouse: 75% of $14,000 or
$10,500.
Survivor annuity for former spouse: 55% of $10,500 or $5,775.
Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
Survivor annuity for spouse: 55% of $2,100 or $1,555.
The combined base for the survivor benefits is $10,500 plus $2,100
or $12,600. The annuity reduction on this combined base as computed
above is $990.
The participant's annuity after reduction for survivor benefit would
be $14,000-$990 or $13,010.
The pension for the former spouse would be 50%x$13,010x75% or
$4,878.75.
The participant's annuity would be further reduced by this amount:
$13,010-$4,878.75 to provide an annuity after this recalculation of
$8,131.25.
(b) The maximum regular survivor annuity or combination of regular
survivor annuities that may be provided under this section is limited to
55% of the principal's full annuity computed at retirement. If an
annuitant is recalled to active duty in the Foreign Service, he/she may
provide additional regular survivor annuities under Sec. 19.10-6. The
maximum regular survivor annuity or combination of regular survivor
annuities that an annuitant who was married at retirement may elect or
provide, pursuant to a court order or otherwise, after retirement in the
event of his/her divorce or remarriage, is limited to the amount
provided at the time of initial retirement or reversion to retired
status following recall service.
Sec. 19.10-3 Marriage after retirement.
If an annuitant who was unmarried at the time of retirement,
marries, he/she may within one year after such marriage irrevocably
elect to receive a reduced annuity and to provide, subject to any
obligation to provide a survivor annuity for a former spouse, a survivor
annuity for the new spouse. If such an election is made, the principal's
annuity shall be reduced in accordance with Sec. 19.10-2 effective on
the first day of the first month which begins at least one year after
the date of the marriage. The reduction is computed on the commencing
rate of the principal's annuity.
Sec. 19.10-4 Death or divorce of a spouse and remarriage after retirement.
(a) If the marriage of an annuitant who received a reduced annuity
at retirement under Sec. 19.10-2 to provide a survivor annuity for a
spouse is dissolved by divorce or by death of the spouse, the retiree's
annuity shall be recomputed, if necessary, as of the first of the month
following the death or divorce. If the marriage was dissolved by death,
the annuity shall be recomputed and paid at its full amount. If the
marriage is dissolved by divorce, procedures in Sec. 19.11-2(b) shall
be followed.
(b) In the event an annuitant affected by this paragraph remarries,
the annuitant may elect within one year of remarriage to provide a
survivor annuity for the new spouse equal in amount to the survivor
benefit formerly in effect for the previous spouse less any amount
committed for a former spouse. The annuity of a retiree making such an
election shall be reduced effective on the first day of the first month
which begins at least one year after the remarriage to the amount that
would have been payable had there been no
[[Page 88]]
recomputation under paragraph (a) of this section.
Sec. 19.10-5 Reduced annuity with additional survivor annuity to spouse or former spouse.
(a) General. This section provides an opportunity for a participant
or former participant who has provided a regular survivor annuity to a
former spouse to provide a survivor annuity to a second spouse or to
another former spouse. The additional survivor annuity provided under
this section generally is more costly than the regular survivor annuity
because the participant is required to pay it's full cost by deduction
from salary or annuity, or otherwise, as specified in paragraph (e) of
this section. The participant must also be in normal health for his/her
age and pass a physical examination prescribed by the Secretary of State
(M/MED) to be eligible to provide an additional survivor annuity under
this section.
(b) Limitation on amount. Neither the total amount of additional
survivor annuity or annuities under this section provided by any
participant or former participant nor any combination of regular or
additional survivor annuities for any one surviving spouse or former
spouse of a principal may exceed 55 percent of the principal's full
annuity counting any supplemental annuity or recomputation of annuity
because of recall service. An additional survivor annuity provided by
any principal shall be further limited to the amount that can be
provided by a monthly payment which is not greater than the principal's
net annuity described in Sec. 19.6-2(b). The amount of any additional
survivor annuity provided by a spousal agreement effective prior to the
principal's retirement, shall be reduced as necessary by PER/ER/RET
after the principal's retirement to comply with this limitation. Any
amount paid by a participant for the portion of additional survivor
annuity cancelled pursuant to this paragraph shall be treated as an
additional lump sum payment under paragraph (e) of this section and used
to increase the amount of the additional annuity. A participant who
separates from the Service without entitlement to any annuity is not
entitled to provide an additional survivor annuity. Payments in such a
case would be discontinued as described in paragraph (e) of this
section.
(c) Procedures to grant additional survivor annuity. A participant
or former participant who has provided a regular survivor annuity to a
former spouse who wishes to provide, or who is ordered by a court to
provide an additional survivor annuity under this section to a spouse or
another former spouse, shall do so by filing a spousal agreement with
PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be
irrevocable when accepted by PER/ER/RET unless the beneficiary of the
additional survivor annuity is subsequently made a beneficiary of a
regular survivor annuity in equal amount. Within the limitations
specified in paragraph (b) of this section, an individual may be made
the beneficiary of both a regular and an additional survivor annuity. A
spousal agreement granting an additional survivor annuity to a spouse
will remain valid in the event the marriage is dissolved and the spouse
qualifies as a former spouse under the definition Sec. 19.2(k).
(d) Eligibility for additional survivor annuity. A spouse or former
spouse must meet the same criteria (Sec. 19.2(v) or Sec. 19.2(k)) to
be eligible for an additional survivor annuity as a spouse or former
spouse must meet to be eligible for a regular survivor annuity. Payment
of a special survivor annuity will commence on the day after the
participant dies and shall terminate on the last day of the month before
death or remarriage before attaining age 60. If it is discontinued
because of remarriage, it will not be resumed.
(e) Payment for additional survivor annuity. (1) Payment for an
additional survivor annuity will commence on the first of the month
following the effective date of a spousal agreement provising the
additional survivor annuity. The effective date will be the date of
acceptance of the spousal agreement by PER/ER-RET (upon a finding that
the agreement conforms to the law and regulations) or such later date as
may be specified in the agreement. No payment will be made to a
beneficiary under the agreement if the principal
[[Page 89]]
dies before its effective date. Accordingly, in order to give protection
to a beneficiary during active service, the agreement must be made
effective, and payment commence, during active service. Payment will be
made by a participant or annuitant by deduction from salary or annuity.
Payment will be made by a former participant while awaiting commencement
of a deferred annuity by direct payment to the Department, Office of
Financial Operations (M/COMP/FO). Payments not received by the due date
may, at the option of M/COMP/FO and with notice to the principal and the
beneficiary be collected from the principal's lump-sum account. Amounts
so collected must be repaid by the principal with interest compounded at
10 percent annually to prevent exhaustion of the lump-sum account. If
the lump-sum account does become exhausted, any rights to the lump-sum
payment under Sec. 19.13 and survivorship rights under this paragraph
will expire on that date. If the principal dies with an amount owing, it
shall be collected by set off from the survivor annuity or lump-sum
account.
(2) Monthly payments may be reduced or eliminated by direct payment
to M/COMP/FO by any participant or former participant under terms
mutually agreed upon by the participant and PER/ER/RET. Minimum monthly
payments will be based upon actuarial tables prescribed from time to
time by the Director General of the Foreign Service (M/DGP) with the
advice of the Secretary of Treasury. Such tables will be calculated so
that the present value of all payments equal the present value of the
survivor annuity. If new tables are prescribed, they would be applicable
to additional survivor annuities provided by spousal agreements that
become effective on or after the effective date of the new tables.
Additional survivor annuities will be increased by regular cost-of-
living adjustments from their commencing dates only when so specified at
the option of the participant or former participant in a spousal
agreement. Monthly payments will be higher if cost-of-living adjustments
are provided.
(3) In the event of the disqualification of a beneficiary for an
additional survivor annuity because of death, remarriage prior to age 60
or divorce from the principal and failure to meet the definition of
``former spouse,'' or in the event of an authorized reduction or
cancellation of an election for an additional survivor annuity, the
monthly payment for such discontinued or reduced additional survivor
annuity will be discontinued or reduced, as appropriate, effective at
the beginning of the first month following termination or reduction of
the benefit. Except as otherwise specified in paragraph (b) of this
section, any amount paid for such discontinued or reduced benefit by a
participant or former participant in excess of the minimum monthly
payments described above shall be refunded to the participant or former
participant with interest calculated at the annual rate used in the last
evaluation of the System or at such higher rate as may be authorized by
M/COMP/FO as will not cause a loss to the Fund. The following table
illustrates the minimum monthly payments schedule in effect February 15,
1981.
------------------------------------------------------------------------
Minimum monthly payment
required to provide an
additional survivor
Age of principal and beneficiary on effective annuity of $100 per
date of spousal agreement month.
-------------------------
Without
COLA With COLA
------------------------------------------------------------------------
40............................................ $7.49 $12.34
50............................................ 14.18 22.01
60............................................ 23.55 33.90
70............................................ 35.57 47.12
------------------------------------------------------------------------
(4) Reduction from annuity to a principal to pay for an additional
survivor annuity will be in the nature of an allotment and will not
affect computations of cost-of-living adjustments to the principal.
Sec. 19.10-6 Benefits for recall service.
(a) Annuity of recalled participant. Any participant who is recalled
to the Service under section 308 of the Act, shall, while serving, be
entitled in lieu of annuity to the full salary of the class in which
serving. During such service, the recalled annuitant shall make
contributions to the Fund under section 805(a) of the Act. If a share of
the annuity is being paid as a pension to a former spouse under Sec.
19.9, that share shall be deducted from the salary
[[Page 90]]
of the recalled annuitant during the period of the recall service. Upon
reversion of the annuitant to retired status, any pension payable to a
former spouse that was being deducted from the salary of the principal
shall again be deducted from the annuity of the principal which shall be
determined as follows:
(1) If the recall service lasts less than one year, a refund of
retirement contributions made during the recall period will be refunded
under Sec. 19.13 and the former annuity will be resumed at the previous
rate adjusted by any cost-of-living increases that became effective
during recall service.
(2) If the recall service lasts between one and five years, the
annuitant will be entitled to elect benefits under paragraph (a)(1) of
this section or receive both the former annuity adjusted by cost-of-
living increases and a supplemental annuity computed under Sec. 19.10
on the basis of service credit and average salary earned during the
recall period, irrespective of the number of years of service credit
previously earned.
(3) If the recall service lasts five years or more, the annuitant
will be entitled to recomputation of the annuity as if there had been no
previous retirement, or elect benefits under paragraph (a) (1) or (2) of
this section.
(4) An annuitant may receive credit in any computation under
paragraph (a) (2) or (3) of this section for any Federal service
performed subsequent to the separation upon which the original annuity
was computed provided a special contribution is made for such service
under section 805 of the Act.
(5) An annuitant entitled to a supplemental annuity under paragraph
(a)(3) of this section or a recomputated annuity under paragraph (a)(4)
of this section is obligated, in the absence of a court order or spousal
agreement to the contrary, to have those annuities reduced to provide
the benefits described in Sec. 19.8 to any spouse or former spouse to
whom married during any portion of the recall service. An annuitant must
accept a reduction of 10 percent of his/her supplemental annuity in
order to provide a supplemental survivor annuity to a spouse or former
spouse. The maximum supplemental survivor annuity equals 55 percent of
the supplemental annuity. If, upon reversion to retired status, an
annuitant has a former spouse entitled to a pro rata share or some other
share of the supplemental survivor annuity, but no spouse, the
appropriate share of the supplemental annuity shall be reduced by 10
percent to provide such former spouse a share of the maximum
supplemental survivor annuity.
(b) Survivor benefit for death during recall service. (1) If an
annuitant entitled to a reduced annuity under Sec. 19.10-2 dies in
service after being recalled and is survived by a spouse or former
spouse entitled to a survivor annuity based on the service of such
annuitant, such survivor annuity shall be computed as if the recall
service had otherwise terminated on the day of death and the annuity of
the deceased had been resumed in accordance with paragraph (a) of this
section. If such death occurs after the annuitant had completed
sufficient recall service to attain eligibility for a supplemental
annuity, a surviving spouse or surviving former spouse who was married
to the participant at any time during a period of recall service shall
be entitled to elect, in addition to any other benefits and in lieu of a
refund of retirement contributions made during the recall service, a
supplemental survivor annuity computed and paid under Sec. 19.10-6a(5)
as if the recall service had otherwise terminated. If the annuitant had
completed sufficient recall service to attain eligibility to have his/
her annuity determined anew, a surviving spouse or such a surviving
former spouse may elect, in lieu of any other survivor benefit under
Sec. 19.11, to have the rights of the annuitant redetermined and to
receive a survivor annuity computed under Sec. 19.11-2 or Sec. 19.11-3
on the basis of the total service of the annuitant. In the event such an
annuitant is survived both by a spouse and such a former spouse, the
former spouse will be entitled to a pro rata share of any refund or
supplemental survivor benefit under this section computed on the basis
of total service during the recall period and months of marriage during
such period. If the surviving spouse and surviving former spouse elect
different benefits under
[[Page 91]]
this paragraph, the former spouse will receive the pro rata share of the
benefit he/she elects and the spouse will receive the reciprocal share
of the benefit he/she elects.
(2) In the event an annuitant dies during recall service and is
survived by a former spouse to whom not married during any period of the
recall service, such former spouse will not be entitled to any benefits
based on the recall service.
Sec. 19.11 Survivor benefits.
Sec. 19.11-1 Kinds of survivor benefits.
If a participant or former participant dies in active service or
after retirement, regular survivor annuities are payable under terms of
this section to an eligible surviving spouse, former spouse or child.
Also, if all rights to annuity and survivor annuity terminate prior to
exhaustion of the participant's lump-sum credit, a lump-sum payment is
made pursuant to Sec. 19.13. In addition to the above, an additional
survivor annuity, and a supplemental survivor annuity may be payable to
an eligible survivor under Sec. Sec. 19.10-5 and 19.10-6, respectively.
If any participant or former participant makes an election, files a
spousal agreement or becomes subject to a court order to provide a
regular survivor annuity for a spouse or former spouse and does not
subsequently become entitled to leave a survivor annuity under these
regulations (because of separation from the Service and withdrawal of
contributions, death after separation but before commencement of a
deferred annuity, or for any other reason), none will be paid and such
election, spousal agreement or court order to provide such survivor
annuity will have no force or effect.
Sec. 19.11-2 Regular survivor annuity for a former spouse.
(a) Divorce prior to retirement. If a participant or former
participant is divorced prior to commencement of annuity, any former
spouse shall be entitled to a pro rata share of such a principal's
maximum regular survivor annuity (based on service performed prior to
the first date the principal becomes eligible for an annuity following
the divorce) unless a different amount is elected in a spousal agreement
filed with PER/ER/RET within 12 months after the divorce becomes final
or at the time of the retirement, whichever occurs first, or unless a
different amount is specified by a court prior to the death of the
principal. The principal's annuity shall be reduced at the commencing
date under Sec. 19.10-2 in order to provide the survivor annuity
committed to the former spouse.
(b) Divorce after retirement. In the event an annuitant is divorced
after retirement (commencement of annuity), the maximum survivor annuity
that may be provided for that former spouse is limited to the amount
provided for that person at the time of retirement. Within that limit,
the former spouse is entitled to a pro rata share of the participant's
maximum survivor benefit (based on service performed prior to the
divorce) unless a different amount was elected in a spousal agreement
filed with PER/ER/RET at the time of retirement, or in the case of
retirement before February 15, 1981, filed with PER/ER/RET within 12
months after the divorce becomes final, or unless a different amount is
specified by a court prior to the death of the principal. For this
purpose, a joint election filed with PER/ER/RET at the time of
retirement is considered a spousal agreement. If the survivor annuity
for the former spouse is reduced at the time of the divorce (because the
pro rata share or the amount specified in a spousal agreement or court
order is less than the amount elected at retirement), the principal's
annuity shall be recomputed and paid, effective on the date the survivor
benefit is reduced, as if the lower amount had been elected at the
outset of retirement.
(c) Death or remarriage of former spouse and transfer of survivor
benefit to a spouse. Remarriage below age 60 or death of a former spouse
while a principal is alive will disqualify the former spouse for
benefits under this section. In the event of such a remarriage or death
of a former spouse, the portion of a principal's survivor annuity
committed to that person will become available for transfer to any
spouse. If such a remarriage or death of the
[[Page 92]]
former spouse occurs after the principal's annuity commences, any
reduction in the principal's annuity for that former spouse will be
discontinued effective at the beginning of the first month following the
remarriage or death unless the annuitant elects to provide or to
increase a survivor benefit for a spouse. Such an election may be made
within one year after the annuitant receives notice of the remarriage or
death of his/her former spouse. The Department (PER/ER/RET) and the
annuitant shall each notify the other promptly whenever either receives
independent notice of such a remarriage or death. If an election to
transfer survivor benefits to a spouse is not made by the annuitant,
his/her annuity will be recomputed and paid as if there had been no
reduction for the discontinued survivor benefit. If an annuity is so
recomputed and an election is subsequently made to designate as
beneficiary a spouse to whom married for at least one year at the time
the election is made, the principal's annuity shall be restored
retroactively to its former, lower rate and then adjusted by cost-of-
living increases that have occured since the date of the first
recomputation. If an election is made for a spouse when the marriage has
not yet lasted a year, the procedures in Sec. 19.10-4 shall be
followed.
(d) Amount of survivor annuity. The amount of a regular survivor
annuity is determined under Sec. 19.11-3(c).
(e) Special rules for election of survivor annuity for a person who
is a former spouse on February 15, 1981. (1) Any participant, or former
participant eligible for a deferred annuity which has not yet commenced,
who, on February 15, 1981 has a former spouse, may at any time prior to
commencement of annuity, elect, with the consent of any spouse to whom
married at the time of the election, to receive a reduced annuity and
provide a regular survivor annuity for such former spouse. Such survivor
annuity shall be limited by Sec. 19.10-2(b). An election under this
paragraph for a former spouse will reduce the amount of any regular
survivor annuity that may subsequently be provided for any spouse or
other former spouse.
(2) Any former participant in receipt of an annuity who has a former
spouse on February 15, 1981 and who has not committed his/her entire
annuity as a base for a regular survivor annuity for a spouse or any
other former spouse, may, prior to December 31, 1982, designate any
portion of the uncommitted base as the base for a regular survivor
annuity for such former spouse.
(3) The annuity of a former participant making an election under
this paragraph shall be reduced under Sec. 19.10-2(a) effective
February 15, 1981, or from its commencing date if later.
(4) An election under this paragraph shall be made by filing a
spousal agreement with PER/ER/RET under Sec. 19.7. A spousal agreement
to provide a regular survivor annuity under this paragraph for a former
spouse may be revoked or amended after its acceptance by PER/ER/RET as
in accordance with the Act and these regulations, only by agreement of
the parties up to the last day allowed by this paragraph for filing such
an agreement. Thereafter, it is irrevocable. If a participant dies in
service after having filed a valid election under this section, a
survivor annuity will be paid to an eligible former suriving spouse in
accordance with the terms of the election.
Sec. 19.11-3 Regular survivor annuity for a spouse.
(a) In the absence of a joint election or a spousal agreement to the
contrary, a participant or former participant who is separated from
active service on or after February 15, 1981 who is married at the
commencement of his/her annuity shall provide a regular survivor annuity
for a spouse under Sec. 19.10-2 equal to the maximum amount that
remains available under limitations stated in paragraph (b) of that
section after allowing for any commitment of a regular survivor annuity
for a former spouse who has not remarried prior to age 60 and who is
alive on the date the former participant becomes eligible for an
annuity.
(b) A regular survivor annuity is also payable to a surviving spouse
for whom a principal elected an annuity under Sec. 19.10-3, Sec.
19.10-4, or Sec. 19.11-2(c) following a marriage after comencement of
his/her annuity.
[[Page 93]]
(c) The amount of a regular survivor annuity equals 55 percent of
the base designated for the benefit at the time the principal's annuity
commenced, adjusted by the total percentage of cost-of-living increases
the principal was receiving at death.
(d) A survivor annuity is payable to a surviving spouse only if that
person was married to the principal at the time of his/her death or if
the spouse became a former spouse under the definition in Sec. 19.2(k).
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.11-4 Procedure in event a spouse or former spouse is missing.
If a participant or former participant has a spouse or former spouse
whose whereabouts are unknown, such participant may elect to reduce or
eliminate the share of a regular survivor annuity provided for that
person under Sec. 19.11-2 or Sec. 19.11-3 by filing an affidavit with
PER/ER/RET stating that his/her spouse or former spouse is missing and
giving full name, last known address, date last heard from,
circumstances of the disappearance and a description of the effort that
has been made to locate the individual. Thereafter, the participant
shall take such additional steps to locate the missing person as may be
directed by PER/ER/RET. That Office shall also attempt to locate the
missing person by sending a letter to the individual's last known
address given in the Department's files, to the address given on the
affidavit, and, if a Social Security number is known, to the Social
Security Administration for forwarding. The election and affidavit may
be filed at any time before commencement of annuity. It must remain on
file with PER/ER/RET for at least one year before being given
irrevocable effect by the Department. If the annuity to the former
participant becomes effective prior to the expiration of this one year
period, the annuity shall be computed and paid without reference to the
election filed under this section. Following this one-year period, or at
the commencement of annuity, if later, if the missing person has not
been located, the affidavit may be reaffirmed by the participant, after
which an election by the participant to reduce or eliminate the share of
regular survivor annuity for the missing person shall be given
irrevocable effect by the Department. If the annuity to the former
participant has commenced, it shall be recomputed and paid retroactively
to give effect to any election made under this section.
Sec. 19.11-5 Commencement, termination and adjustment of annuities.
(a) An annuity payable from the Fund to a surviving spouse or former
spouse begins on the day after the participant or annuitant dies and
stops on the last day of the month before the survivor's (1) marriage
before age 60, or (2) death. If a survivor annuity is terminated because
of remarriage, the annuity is restored at the same rate effective on the
date such remarriage is terminated, provided any lump-sum paid upon
termination of the annuity is returned to the Fund. The termination of a
surviving spouse annuity due to remarriage does not apply to a survivor
annuitant who is a surviving spouse of a participant who died in service
or retired before October 1, 1976, unless elected following a marriage
after retirement under circumstances described in Sec. 19.10-3 or Sec.
19.10-4.
(b) A surviving spouse or former spouse shall not become entitled to
a survivor annuity or to the restoration of a survivor annuity payable
from the Fund unless the survivor elects to receive it instead of any
other survivor annuity to which entitled under this or any other
retirement system for Government employees. (For this purpose, neither
the Social Security system nor the military retirement system is
considered a retirement system for Government employees.) This
restriction does not apply to a survivor annuitant who is a surviving
spouse of a participant who died in service or retired before October 1,
1976, unless the survivor annuity was elected under circumstances
described in Sec. 19.10-3 or Sec. 19.10-4.
(c) A child's annuity begins on the day after the participant dies,
or if a child is not then qualified, on the first day of the month in
which the child becomes eligible. A child's annuity shall terminate on
the last day of the month
[[Page 94]]
which precedes the month in which eligibility ceases.
(d) Regular and supplemental survivor annuities to a spouse or
former spouse of an annuitant described in Sec. Sec. 19.11-2, 19.11-3
and 19.10-6(b) are increased from their effective date by the cumulative
percentage of cost-of-living increases the annuitant was receiving under
section 826 of the Act at death. All annuities payable to survivors on
the date a cost-of-living adjustment becomes effective are increased by
that percentage except (1) the first increase to a surviving spouse of a
participant who dies in service shall be pro rated and (2) additional
survivor annuities under Sec. 19.10-5 when the spousal agreement
authorizing the annuity makes no provision for cost-of-living increases.
(e) The annuity of survivors becomes effective as specified in this
section but is not paid until the survivor submits Form JF-38,
Application for Death Benefits, supported by such proof as may be
required, for example, death, marriage, and/or divorce certificates. In
the event that such is not submitted during an otherwise eligible
beneficiary's lifetime, no annuity is due or payable to the
beneficiary's estate.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.11-6 Death during active duty.
(a) Annuity for surviving former spouse. In the event a participant
dies before separation from the Service and leaves a former spouse, such
former spouse is entitled to a regular survivor annuity under Sec.
19.11-2 computed as if the participant had retired on the date of death
unless a court order or spousal agreement is on file in the Department
waiving such entitlement or providing for some other computation, or
unless the former spouse had been found missing and an election filed
under the procedures of Sec. 19.11-4 waiving a survivor benefit for
that person. Any assumed service authorized to be used under paragraph
(b) of this section in computing the annuity for a surviving spouse may
not be counted as ``years of marriage'' when determining whether the
previous spouse qualifies as a ``former spouse'' under the definition in
Sec. 19.2(k) or when computing the pro rata share under Sec. 19.2(s).
A former spouse is entitled to an additional survivor annuity under
Sec. 19.10-5 provided death occurs on or after the effective date of a
spousal agreement providing for the additional annuity.
(b) Annuity for surviving spouse. If a participant who has at least
19 months of civilian service credit toward retirement under the System,
excluding extra service credited for unhealthful post duty in accordance
with section 816 of the Act, dies before separation from the Service,
and is survived by a spouse as defined in Sec. 19.2(v) such survivor
shall be entitled to an annuity equal to 55 percent of the annuity
computed in accordance with Sec. 19.10-1 less any annuity payable to a
former spouse under paragraph a. If the participant had less than three
years of creditable civilian service at the time of death, the survivor
annuity is computed on the basis of the average salary for the entire
period of such service. If, at time of death, the participant had less
than 20 years of creditable service, the annuity shall be computed on
the assumption that the participant has had 20 years of service, but
such additional service credit shall in no case exceed the difference
between the participant's age on the date of death and age 65. A spouse
is entitled to an additional survivor annuity under Sec. 19.10-5
provided death occurs on or after the effective date of a spousal
agreement providing for the additional annuity.
(c) Annuity for a child or children. If a participant described in
paragraph (b) of this section is survived by a child or children, each
surviving child is entitled to an annuity as described in Sec. 19.11-7.
(d) Annuity changes. Annuities based on a death in service are
subject to the provisions of Sec. 19.11-5 governing commencement,
adjustment, termination and resumption of annuities.