[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2014 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 22
Foreign Relations
________________________
Part 300 to End
Revised as of April 1, 2014
Containing a codification of documents of general
applicability and future effect
As of April 1, 2014
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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Any person using NARA's official seals and logos in a manner
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[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
Title 22:
Chapter III--Peace Corps 3
Chapter IV--International Joint Commission, United
States and Canada 57
Chapter V--Broadcasting Board of Governors 67
Chapter VII--Overseas Private Investment Corporation 199
Chapter IX--Foreign Service Grievance Board 249
Chapter X--Inter-American Foundation 265
Chapter XI--International Boundary and Water
Commission, United States and Mexico, United States
Section 317
Chapter XII--United States International Development
Cooperation Agency 355
Chapter XIII--Millennium Challenge Corporation 375
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 387
Chapter XV--African Development Foundation 441
Chapter XVI--Japan-United States Friendship
Commission 495
Chapter XVII--United States Institute of Peace 505
[[Page iv]]
Finding Aids:
Table of CFR Titles and Chapters........................ 517
Alphabetical List of Agencies Appearing in the CFR...... 537
List of CFR Sections Affected........................... 547
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 301.1 refers
to title 22, part 301,
section 1.
----------------------------
[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2014), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page viii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
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ELECTRONIC SERVICES
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CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
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information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Printing Office. It is
available at www.ecfr.gov.
Charles A. Barth,
Director,
Office of the Federal Register.
April 1, 2014.
[[Page ix]]
THIS TITLE
Title 22--Foreign Relations is composed of two volumes. The first
volume, parts 1--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, 2014.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of the
Managing Editor, assisted by Ann Worley.
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains part 300 to End)
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Part
chapter iii--Peace Corps.................................... 301
chapter iv--International Joint Commission, United States
and Canada................................................ 401
chapter v--Broadcasting Board of Governors.................. 501
chapter vii--Overseas Private Investment Corporation........ 705
chapter ix--Foreign Service Grievance Board................. 901
chapter x--Inter-American Foundation........................ 1001
chapter xi--International Boundary and Water Commission,
United States and Mexico, United States Section........... 1100
chapter xii--United States International Development
Cooperation Agency........................................ 1201
chapter xiii--Millennium Challenge Corporation.............. 1301
chapter xiv--Foreign Service Labor Relations Board; Federal
Labor Relations Authority; General Counsel of the Federal
Labor Relations Authority; and the Foreign Service Impasse
Disputes Panel............................................ 1411
chapter xv--African Development Foundation.................. 1500
chapter xvi--Japan-United States Friendship Commission...... 1600
chapter xvii--United States Institute of Peace.............. 1701
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CHAPTER III--PEACE CORPS
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Part Page
300
[Reserved]
301 Public access to classified material........ 5
303 Procedures for disclosure of information
under the Freedom of Information Act.... 5
304 Claims against Government under Federal Tort
Claims Act.............................. 16
305 Eligibility and standards for Peace Corps
volunteer service....................... 20
306 Volunteer discrimination complaint procedure 22
308 Implementation of the Privacy Act of 1974... 22
309 Debt collection............................. 32
311 New restrictions on lobbying................ 40
312 Governmentwide requirements for drug-free
workplace (financial assistance)........ 51
313-399
[Reserved]
[[Page 5]]
PART 300 [RESERVED]
PART 301_PUBLIC ACCESS TO CLASSIFIED MATERIAL--Table of Contents
Sec.
301.1 Introduction.
301.2 Requests for mandatory declassification review.
301.3 Action on requests for declassification review.
Authority: E.O. 12356, 43 FR 14874 dated April 2, 1982.
Source: 49 FR 13692, Apr. 6, 1984, unless otherwise noted.
Sec. 301.1 Introduction.
The following regulations implement Executive Order 12356 and
provide guidance for members of the public desiring a review for
declassification of a document of the Peace Corps.
Sec. 301.2 Requests for mandatory declassification review.
(a) All information originally classified by the Peace Corps shall
be subject to review for declassification.
(b) Requests for review of such information for declassification
shall be in writing, addressed to the Peace Corps Director of Security,
Peace Corps, Washington, DC 20526, and reasonably describe the
information sought with sufficient specificity to enable its location
with a reasonable amount of effort. Only requests made by a United
States citizen or a permanent resident alien, a Federal agency or a
State or local government will be considered.
(c) Requests relating to information, either derivatively classified
by the Peace Corps or originally classified by another agency but in the
possession of the Peace Corps, shall be forwarded, together with a copy
of the record, to the originating agency. The transmittal may contain in
Peace Corps recommendation for action.
Sec. 301.3 Action on requests for declassification review.
(a) The Director of Security shall present each request for
declassification to the Peace Corps Classification Review Committee,
which shall consist of the Associate Director for International
Operations, the Associate Director for Management and the General
Counsel, or their designees, together with his or her recommendation for
action.
(b) Every effort will be made to complete action on each request
within 60 days of receipt thereof.
(c) Information shall be declassified or downgraded as soon as
national security considerations permit. If the Classification Review
Committee determines that the material for which review is requested no
longer requires this protection, it shall be declassified and made
available to the requester unless withholding is otherwise authorized by
law.
(d) If the Peace Corps Classification Review Committee determines
that requested information must remain classified, the requester shall
be given prompt notice of the decision and, if possible, a brief
explanation of why the information cannot be declassified.
(e) The Peace Corps may refuse to confirm or deny the existence or
non-existence of requested information whenever the fact of its
existence or non-existence is itself classified under E.O. 12356.
(f) A requester may appeal a refusal to declassify information to
the Director of the Peace Corps, or the Director's designee. Appeals
shall be in writing, addressed to the Director of the Peace Corps,
Washington, DC 20526, and shall briefly state the reasons why the
requester believes that the Peace Corps Classification Review Committee
decision is in error. Appeals must be submitted within 30 days after
receipt of notice of the Classification Review Committee decision. The
decision of the Peace Corps Director, or designee, will be based on the
entire record, and will be rendered in writing within 60 days after
receipt of an appeal. The decision of the Director or Director's
designee is the final Peace Corps action on a request.
PART 303_PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE FREEDOM OF
INFORMATION ACT--Table of Contents
Sec.
303.1 Purpose.
303.2 Definitions.
303.3 Policy.
[[Page 6]]
303.4 Records published in the Federal Register.
303.5 Public reading room.
303.6 Procedures for use of public reading room.
303.7 Index of records.
303.8 Requests for records.
303.9 Exemptions for withholding records.
303.10 Responsibilities and authorities.
303.11 Denials.
303.12 Appeals.
303.13 Fees.
303.14 Procedures for responding to a subpoena.
Authority: 5 U.S.C. 552; 22 U.S.C. 2501, et. seq.; E.O. 12137, 44 FR
29023, 3 CFR, 1979 Comp., p. 389; E.O. 12600, 52 FR 23781, 3 CFR, 1987
Comp., p. 235.
Source: 68 FR 66008, Nov. 25, 2003, unless otherwise noted.
Sec. 303.1 Purpose.
This part sets out the rules and procedures the Peace Corps follows
in making records available to the public under the Freedom of
Information Act (FOIA).
Sec. 303.2 Definitions.
As used in this part--
(a) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made. In determining whether a requester has made
a commercial use request, the Peace Corps will look to the use to which
a requester will put the documents requested. When the Peace Corps has
reasonable cause to doubt the requester's stated use of the records
sought, or where the use is not clear from the request itself, it will
seek additional clarification before assigning the request to a
category.
(b) Duplication means the process of making a copy of a record
requested pursuant to this part. Such copies can take the form of paper
copy, microform, audio-visual materials, or machine readable electronic
documents, among others.
(c) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education which operates a program or programs of scholarly
research.
(d) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
(e) OIG records means those records as defined generally in this
section which originated with or are in the possession and control of
the Office of Inspector General (OIG) of the Peace Corps which have been
compiled for law enforcement, audit, and investigative functions and/or
any other purpose authorized under the IG Act of 1978, as amended.
(f) Records means books, papers, maps, photographs, or other
documentary materials, regardless of whether the format is physical or
electronic, made or received by the Peace Corps in connection with the
transaction of Peace Corps' business and preserved by the Peace Corps as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Peace Corps, or
because of the informational value of data in them. The term does not
include, inter alia, books, magazines, or other materials acquired
solely for library purpose, or that are otherwise publicly available.
(g) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances when they can qualify as
disseminators of ``news'') who make their products available for
purchase or subscription by the general public. These examples are not
intended to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in
[[Page 7]]
this category. In the case of ``freelance'' journalists, they will be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it.
(h) Review means the process of examining a document located in
response to a request to determine whether any portion of such document
is exempt from disclosure. It also includes processing any such document
for disclosure. Review does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
(i) Search means the process of looking for and retrieving records
that are responsive to a request for records. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. Searches may be
conducted manually or by automated means and will be conducted in the
most efficient and least expensive manner. If the Agency cannot identify
the requested records after a 2 hour search, it can determine that the
records were not adequately described and ask the requester to provide a
more specific request.
Sec. 303.3 Policy.
The Peace Corps will make its records concerning its operations,
activities, and business available to the public consistent with the
requirements of the FOIA. Records exempt from disclosure under the FOIA
may be made available at the discretion of the Peace Corps.
Sec. 303.4 Records published in the Federal Register.
The Peace Corps publishes its notices and substantive regulations in
the Federal Register. It also publishes information on its basic
structure and operations necessary to inform the public how to deal
effectively with the Peace Corps in the United States Government Manual,
a special publication of the Federal Register. The Peace Corps will make
reasonable efforts to currently update such information, which includes
information on Peace Corps' location and functions, and how the public
may obtain information or forms, or make submittals or requests. The
Peace Corps' published regulations are at 22 CFR Chapter III.
Sec. 303.5 Public reading room.
(a) The Peace Corps will maintain a public reading room at its
headquarters at 1111 20th Street, NW., Washington, DC 20526. This room
will be supervised and will be open to the public during Peace Corps'
regular business hours for inspecting and copying records described in
paragraph (b) of this section.
(b) Subject to the limitation stated in paragraph (c) of this
section, the following records will be made available in the public
reading room:
(1) All final public opinions, including concurring and dissenting
opinions, and orders issued in the adjudication of cases that involve
the Peace Corps;
(2) Statements of policy and interpretations adopted by the Peace
Corps that are not published in the Federal Register;
(3) Administrative staff manuals and instructions to the staff that
affect the public;
(4) Copies of records, regardless of form or format, released to any
person in response to a public request for records which the Peace Corps
determines are likely to become subject to subsequent requests for
substantially the same records, and a general index of such records;
(5) The index required by Sec. 303.7; and
(6) Other records the Peace Corps has determined are of general
interest to members of the public in understanding activities of the
Peace Corps or in dealing with the Peace Corps in connection with those
activities.
(c) Certain records otherwise required by FOIA to be available in
the public reading room may be exempt from mandatory disclosure pursuant
to Sec. 552(b) of the FOIA. Such record will not be made available in
the public reading room. Other records maintained in the public reading
room may be edited by the deletion of identifying details concerning
individuals to prevent a clearly unwarranted invasion of personal
privacy. In such cases, the
[[Page 8]]
record shall have attached to it an explanation of the deletion. The
extent of the deletion shall be indicated, unless doing so would harm an
interest protected by the exemption under which the deletion is made. It
technically feasible, the extent of the deletion shall be indicated at
the place in the record where the deletion was made.
(d) Electronic reading room. Records required by the FOIA to be
maintain and made available in the public reading room created by the
Peace Corps on or after November 1, 1996, shall be made available
electronically.
(e) Most electronic public reading room records will also be made
available to the public on the Peace Corps Web site at http://
www.peacecorps.gov.
Sec. 303.6 Procedures for use of public reading room.
Any member of the public may inspect or copy records described in
Sec. 303.5(b) in the public reading room during regular business hours.
Because it will sometimes be impossible to produce records or copies of
records on short notice, a person who wishes to inspect or copy records
shall arrange a time in advance, by telephone or letter request made to
the Peace Corps FOIA Officer. Persons submitting request by telephone
will be notified whether a written request would be advisable to aid in
the identification and expeditious processing or the records sought.
Written request should identify the records sought in the manner
described in Sec. 303.8(b) and should request a specific date for
inspecting the records. The requester will be advised as promptly as
possible if, for any reason, it may not be possible to make the records
sought available on the date requested.
Sec. 303.7 Index of records.
The Peace Corps will maintain a current index identifying any matter
within the scope of Sec. 303.4 or Sec. 303.5(b)(1) through (5). The
index will be maintained and made available for public inspection and
copying at the Peace Corps' headquarters in Washington, DC. The cost of
a copy of the index will not exceed the standard charge for duplication
set out in Sec. 303.13(e). The Peace Corps will also make the index
available on its public Web site.
Sec. 303.8 Requests for records.
(a) Except for records required by the FOIA to be published in the
Federal Register or to be made available in the public reading room,
Peace Corps records will be made promptly available, upon request, to
any person in accordance with this section, unless it is determined that
such records should be withheld and are exempt form mandatory disclosure
under the FOIA.
(b) Requests. Requests for records under this section shall be made
in writing via regular mail, e-mail, or facsimile and, as applicable,
the envelope, letter or subject line shall be clearly marked ``Freedom
of Information Request.'' All requests shall be addressed to the FOIA
Officer. Requests by letter shall use the address given in Sec.
303.5(a) and requests by e-mail must be sent to the FOIA electronic
mailbox address [email protected]. Any request not marked and
addressed as specified in this paragraph will be so marked by Peace
Corps personnel as soon as the request is properly identified. The
request will then be forwarded immediately to the FOIA Officer. A
request improperly addressed will not be deemed to have been received
for purposes of the time period set out in paragraph (h) of this section
until it has been received by the FOIA Officer. Upon receipt of an
improperly addressed request, the FOIA Officer shall notify the
requester of the date on which the time period began. The request shall
be stamped ``received'' on the date it is received by the FOIA Office.
Any request received by e-mail shall be printed on paper and stamped on
the date it is received by the FOIA Office.
(c) A request must reasonably describe the records requested so that
employees of the Peace Corps who are familiar with the subject area of
the request are able, with a reasonable amount of effort, to determine
which particular records are within the scope of the request. If it is
determined that a request does not reasonably describe the records
sought, the requester shall
[[Page 9]]
be so informed and provided an opportunity to confer with Peace Corps
personnel in order to attempt to reformulate the request in a manner
that will meet the needs of the requester and the requirements of this
paragraph. If the Agency cannot identify the requested records after a 2
hour search, it can determine that the records were not adequately
described and ask the requester to provide a more specific request.
(d) To facilitate the location of records by the Peace Corps, a
requester should try to provide the following kinds of information, if
known;
(1) The specific event or action to which the record refers;
(2) The unit or program of the Peace Corps which may be responsible
for or may have produced the record;
(3) The date of the record or the date or period to which it refers
or relates;
(4) The type of record, such as an application, a particular form, a
contract, or a report;
(5) Personnel of the Peace Corps who may have prepared or have
knowledge of the record; or
(6) Citations to newspapers or publications which have referred to
the record.
(e) The Peace Corps is not required to create a record or to perform
research to satisfy a request.
(f) Any request for a waiver or reduction of fees should be included
in the FOIA request, and any such request should indicate the grounds
for a waiver or reduction of fees, as set out in Sec. 303.13(f). The
Peace Corps shall respond to such request as promptly as possible.
(g) Format. The Peace Corps will provide records in the form or
format indicated by the requester to the extent such records are readily
reproducible in the requested form or format.
(h) Initial response/delays. (1) The FOIA Officer, upon request for
any records made in accordance with this section, except in the case of
a request for OIG records, shall make an initial determination of
whether to comply with or deny such request and dispatch such
determination to the requester within 20 business days after receipt of
such request, except for unusual circumstances, in which case the time
limit may be extended for up to 10 business days by written notice to
the requester setting forth the reasons for such extension and the date
on which a determination is expected to be dispatched.
(2) If the FOIA Officer determines that a request or portion thereof
is for OIG records, the FOIA Officer shall promptly refer the request or
portion thereof to the OIG and send notice of such referral to the
requester. In such case, the OIG FOIA Officer shall make an initial
determination of whether to comply with or deny such request and
dispatch such determination to the requester within 20 business days
after receipt of such request, except for unusual circumstances, in
which case the time limit may be extended for up to 10 business days by
written notice to the requester setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched. If for any reason, a request for Agency information goes
directly to the OIG rather than through the FOIA Officer, the OIG shall
provide notice to the FOIA Officer of its receipt of the request. The
FOIA Office and the OIG should normally consult with each other whenever
they receive requests for the same or similar records.
(3) Unusual circumstances. As used in this part, ``unusual
circumstances'' are limited to the following, but only to the extent
reasonably necessary for the proper processing of the particular
request:
(i) The need to search for and collect the requested records from
components or locations that are separate from the office processing the
request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or organization having a
substantial interest in the determination of the request or among two or
more components of the Peace Corps having a substantial subject matter
interest therin.
(i) If a request is particularly broad or complex so that it cannot
be completed within the time periods stated
[[Page 10]]
in paragraph (h) of this section, the Peace Corps may ask the requester
to narrow the request or agree to an additional delay.
(j) When no determination can be dispatched within the applicable
time limit, the FOIA Officer or the OIG FOIA Officer shall inform the
requester of the reason for the delay, the date on which a determination
may be expected to be dispatched, and the requester's right to treat the
delay as a denial and to appeal to the Associate Director for the Office
of Management or the Inspector General, in accordance with Sec. 303.12.
If no determination has been dispatched by the end of the 20-day period,
or the last extension thereof, the requester may deem the request
denied, and exercise a right of appeal in accordance with Sec. 303.12.
The FOIA Officer or the OIG FOIA Officer may ask the requester to forego
an appeal until a determination is made.
(k) After it has been determined that a request will be granted, the
responsible official will act with due diligence in providing a prompt
response.
(l) Expedited treatment. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever the requester
demonstrates a compelling need. A compelling need means:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Peace Corps or Federal government activity and the request is made by a
person primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) a matter of widespread and exceptional media interest in which
there exist possible questions about the Peace Corps' or the Federal
government's integrity which affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time. For a prompt
determination, a request for expedited processing must be properly
addressed and marked and received by the Peace Corps pursuant to
paragraph (b) of this section.
(3) A requester who seeks expedited processing must submit a
statement demonstrating a compelling need that is certified by the
requester to be true and correct to the best of that person's knowledge
and belief, explaining in detail the basis for requesting expedited
processing.
(4) Within ten business days of its receipt of a request for
expedited processing, the FOIA Officer or the OIG FOIA Officer shall
decide whether to grant the request and shall notify the requester of
the decision. If a request for expedited treatment is granted, the
request shall be given priority and shall be processed as soon as
practicable. If a request for expedited processing is denied, any appeal
of that decision shall be acted on expeditiously by the Peace Corps.
(5) Appeals shall be made to the Associate Director for the Office
of Management, who shall respond within 10 business days of receipt of
the appeal.
[68 FR 66008, Nov. 25, 2003, as amended at 72 FR 27055, May 14, 2007]
Sec. 303.9 Exemptions for withholding records.
(a) The Peace Corps may withhold a requested record from public
disclosure only if the record fits within one or more of the following
FOIA exemptions:
(1) Matter specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and is in fact properly classified pursuant to such
Executive Order;
(2) Matter which is related solely to the internal personnel rules
and practices of the Peace Corps;
(3) Matter which is specifically exempted from disclosure by statute
(other than exemptions under FOIA at 5 U.S.C. 552(b)), provided that
such statute requires that the matter be withheld from the public in
such a manner as to leave no discretion on the issue, or establishes
particular criteria for withholding, or refers to particular types of
matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters which would
not
[[Page 11]]
be available by law to a party other than an agency in litigation with
the Peace Corps;
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes
including enforcing the Peace Corps Act or any other law, but only to
the extent that the production of such law enforcement records or
information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person or a recipient of a right to a fair
trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis; and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(b) In the event that one or more of the above exemptions in
paragraph (a) of this section apply, any reasonably segregable portion
of a record shall be provided to the requester after deletion of the
portions that are exempt. The amount of information deleted shall be
indicated on the released portion of the record, unless doing so would
harm the interest protected by the exemption under which the deletion is
made. If technically feasible, the amount of information deleted shall
be indicated at the place in the record where the deletion is made. At
the discretion of the Peace Corps officials authorized to grant or deny
a request for records, it may be possible to provide a requester with:
(1) A summary of information in the exempt portion of a record; or
(2) An oral description of the exempt portion of a record.
(c) No requester shall have a right to insist that any or all of the
techniques in paragraph (b) of this section should be employed in order
to satisfy a request.
(d) Records that may be exempt from disclosure pursuant to paragraph
(a) of this section may be made available at the discretion of the Peace
Corps.
(e) Proprietary information. (1) It is the policy of the Peace Corps
to withhold proprietary information that falls within the protection of
paragraph (a)(4) of this section. Proprietary information includes trade
secrets, or commercial or financial information obtained from a person,
the disclosure of which could reasonably be expected to cause
substantial competitive harm.
(2) It is also the policy of the Peace Corps to give submitters of
arguably proprietary information an adequate opportunity to provide
information to the Peace Corps to establish that the information
constitutes protected proprietary information.
(3) A person submitting arguably proprietary information to the
Peace Corps will be notified in writing by the Peace Corps if there is a
FOIA request for the information, unless:
(i) The Peace Corps has already decided that the information should
be withheld;
(ii) The information has been lawfully published or has been
officially made available to the public; or
(iii) Disclosure of the information is required by law.
(4) The notice shall afford the submitter at least ten business days
in which to object to the disclosure of any requested information.
Whenever the Peace Corps provides such notice to the submitter, it shall
also notify the requester that notice and an opportunity to comment are
being provided to the submitter.
(5) A submitter's request for protection for information under
paragraph (a)(4) of this section shall:
[[Page 12]]
(i) Specifically identify the exact material claimed to be
confidential proprietary information;
(ii) State whether the information identified has ever been released
to a person who is not in a confidential relationship with the
submitter;
(iii) State the basis for the submitter's belief that the
information is not commonly known or readily ascertainable by outside
persons; and
(iv) State how release of the information would cause harm to the
submitter's competitive position.
(6) The Peace Corps shall consider the submitter's objections and
specific grounds for non-disclosure when deciding whether to disclose
the information. If the Peace Corps decides to disclose the information,
it shall, to the extent permitted by law, provide the submitter at least
ten business days notice of its decision before the information is
disclosed and a statement of its reasons for not sustaining the
objection to disclosure. Whenever the Peace Corps notifies the submitter
of its final decision, it shall also notify the requester.
(7) Whenever a FOIA requester brings suit seeking to compel
disclosure of proprietary information, the Peace Corps shall promptly
notify the submitter.
[68 FR 66008, Nov. 25, 2003; 69 FR 68695, Dec. 9, 2003]
Sec. 303.10 Responsibilities and authorities.
(a) Legal counsel. The General Counsel shall furnish legal advice to
Peace Corps officials and staff as to their obligations under this part
and shall take such other actions as may be necessary or appropriate to
assure a consistent and equitable application of the provisions of this
part by and within the Peace Corps.
(b) Authority to grant or deny requests. The FOIA Officer is
authorized to grant or deny requests for records, except for OIG
records, under this part. The OIG FOIA Officer is authorized to grant or
deny requests for OIG records under this part. The FOIA Officer and the
OIG FOIA Officer shall consult with each other when a request includes
both Peace Corps and OIG records in order to ensure consistency and lack
of duplication in processing the request.
(c)(1) Records received from other agencies. When the Peace Corps
receives a request for a record in its possession that it has received
from another agency, it shall determine whether the other agency is
better qualified to decide whether the record is exempt from disclosure
and, if so, whether it should be disclosed as a matter of discretion. If
the Peace Corps determines it is better qualified to process the record
in response to the request, then it shall do so. If the Peace Corps
determines it is not better qualified to process the request, it shall
either:
(i) Consult with the other agency before responding to the request;
or
(ii) Refer the responsibility for responding to the request for the
record to the other agency (but only if the agency is subject to FOIA).
Ordinarily, the agency that originated a record will be presumed to be
best able to determine whether to disclose it.
(2) Law enforcement and classified information. Notwithstanding
paragraph (c)(1) of this section:
(i) Whenever the Peace Corps receives a request for a record
containing information that relates to an investigation of a possible
violation of law that was originated by another agency, the Peace Corps
will either consult with the other agency before responding or refer the
responsibility for responding to the request to the other agency; and
(ii) Whenever a request is made for a record containing information
that has been classified by another agency or may be appropriate for
classification under Executive Order 12958 or any other executive order
concerning the classification of records, the Peace Corps shall refer
the responsibility for responding to the request regarding that
information to the agency that classified the information, should
consider the information for classification, or has the primary interest
in the information, as appropriate.
(3) Notice of referral. Whenever the Peace Corps refers all or any
part of the responsibility for responding to a request to another
agency, it ordinarily shall notify the requester of the referral and
inform the requester of the
[[Page 13]]
name of the agency to which the request has been referred and the part
of the request that has been referred.
(4) Effect of consultations and referrals on timing of response. All
consultations and referrals will be handled according to the date the
FOIA request was initially received by the Peace Corps.
(5) Agreements with other agencies. The Peace Corps may make
agreements with other agencies to eliminate the need for consultations
or referrals for particular types of records.
Sec. 303.11 Denials.
(a) A denial of a written request for a record that complies with
the requirements of Sec. 303.8 shall be in writing and shall include,
as applicable:
(1) A reference to the applicable exemption or exemptions in Sec.
303.9(a) upon which the denial is based;
(2) An explanation of how the exemption applies to the requested
records;
(3) A statement explaining why it is deemed unreasonable to provide
segregable portions of the record after deleting the exempt portions;
(4) An estimate of the volume of requested matter denied unless
providing such estimate would harm the interest protected by the
exemption under which the denial is made, if other than the FOIA
Officer;
(5) The name and title of the person or persons responsible for
denying the request, if other than the FOIA Officer; and
(6) An explanation of the right to appeal the denial and the
procedures for submitting an appeal, including the address of the
official to whom appeals should be submitted.
(b) A partial deletion of a record made available to a requester
shall be deemed a denial of a record for purposes of paragraph (a) of
this section. All denials shall be treated as final opinions under Sec.
303.5(b).
Sec. 303.12 Appeals.
(a) Any person whose written request has been denied is entitled to
appeal the denial within 20 business days by writing to the Associate
Director of the Office of Management or, in the case of a denial of a
request for OIG Records, the Inspector General, at the address given in
Sec. 303.5(a). The envelope and letter should be clearly marked
``Freedom of Information Act Appeal.'' An appeal need not be in any
particular form, but should adequately identify the denial, if possible,
by describing the requested record, identifying the official who issued
the denial, and providing the date on which the denial was issued.
(b) The decision of the Associate Director for the Office of
Management or the Inspector General on an appeal shall be in writing
and, in the event the denial is in whole or in part upheld, shall
contain an explanation responsive to the arguments advanced by the
requester, the matters described in Sec. 303.11(a)(1) through (4), and
the provisions for judicial review of such decision under section
552(a)(4) of the FOIA. The decision shall be dispatched to the requester
within 20 business days after receipt of the appeal, unless an
additional period is justified pursuant to Sec. 303.8(i) and such
period taken together with any earlier extension does not exceed 10
business days. The decision by the Associate Director for the Office of
Management or the Inspector General shall constitute the final action of
the Peace Corps. All such decisions shall be treated as final opinions
under Sec. 303.5(b).
Sec. 303.13 Fees.
(a) For information routinely provided by the Peace Corps to the
public in the normal course of doing business, such as informational or
recruiting brochures, no fees will be charged.
(b) For each a commercial use request, fees will be limited to
reasonable standard charges for document search, review, and
duplication.
(c) For each request for records sought by a representative of the
news media or by an educational or non-commercial scientific
institution, fees shall be limited to reasonable standard charges for
document duplication after the first 100 pages.
(d) For all other requests, fees shall be limited to reasonable
standard charges for search time after the first 2 hours and duplication
after the first 100 pages.
(e) The schedule of reasonable standard charges for services
regarding the
[[Page 14]]
production or disclosure of the Peace Corps records is as follows:
(1) Manual search and review of records: Salary rate of employee[s]
performing the search and review plus 16%. Charges for search and review
time less than a full hour will be billed by quarter-hour segments;
(2) Computer time: Actual costs as incurred;
(3) Duplication by paper copy: 15 cents per page;
(4) Duplication by other methods: Actual costs as incurred;
(5) Certification of true copies: $1.00 each;
(6) Packing and mailing records: Actual costs as incurred; and
(7) Special delivery or express mail: Actual charges as incurred.
(f) Fee waivers: Fees will be waived or reduced below the fees
established under paragraph (e) of this section if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Peace Corps or Federal government and is not primarily in the
commercial interest of the requester.
(1) In order to determine whether the disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Federal government, the Peace Corps shall consider the following
four criteria:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the Peace Corps or
Federal government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Peace Corps or Federal government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding;''
and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of Peace Corps or Federal government operations or
activities.
(2) In order to determine whether disclosure of the information is
not primarily in the commercial interest of the requester, the Peace
Corps shall consider the following two factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and if so,
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the requester.''
(3) These fee waiver/reduction provisions will be subject to appeal
in the same manner as appeals from denial under Sec. 303.12.
(g) No fee will be charged under this section unless the cost of
routine collection and processing of the fee payment is likely to exceed
the average cost of processing a payment.
(h) Requesters must agree to pay all fees charged for services
associated with their requests. The Peace Corps will assume that
requesters agree to pay all charges for services associated with their
requests up to $25 unless otherwise indicated by the requester.
(i) No requester will be required to make an advance payment of any
fee unless:
(1) The requester has previously failed to pay a required fee to
another federal agency or to Peace Corps within 30 days of the date of
billing, in which case an advance deposit of the full amount of the
anticipated fee together with the fee then due plus interest accrued may
be required. (The request will not be deemed to have been received by
the Peace Corps until such payment is made.); or
(2) The Peace Corps determines that an estimated fee will exceed
$250, in which case the requester shall be notified of the amount of the
anticipated fee or such portion thereof as can readily be estimated.
Such notification shall be transmitted as soon as possible, but in any
event within 5 business days of receipt of the request by
[[Page 15]]
the Peace Corps. The notification shall offer the requester the
opportunity to confer with appropriate representatives of the Peace
Corps for the purpose of reformulating the request so as to meet the
needs of the requester at a reduced cost. The request will not be deemed
to have been received by the Peace Corps for purposes of the initial 20-
day response period until the requester makes a deposit on the fee in an
amount determined by the Peace Corps.
(j) Interest may be charged to those requesters who fail to pay the
fees charged. Interest will be assessed on the amount billed, starting
on the 31st day following the day on which the billing was sent. The
rate charged will be as prescribed in 31 U.S.C. 3717.
(k) The Agency is not required to process a request for a requester
who has not paid FOIA fees owed to another Federal agency.
(l) If the Peace Corps reasonably believes that a requester or group
of requesters is attempting to break a request into a series of requests
for the purpose of evading the assessment of fees, the Peace Corps shall
aggregate such requests and charge accordingly. Likewise, the Peace
Corps will aggregate multiple requests for documents received from the
same requester within 45 business days.
(m) The Peace Corps reserves the right to limit the number of copies
of any document that will be provided to any one requester or to require
that special arrangements for duplication be made in the case of bound
volumes or other records representing unusual problems of handling or
reproduction.
[68 FR 66008, Nov. 25, 2003, as amended at 72 FR 27056, May 14, 2007]
Sec. 303.14 Procedures for responding to a subpoena.
(a) Purpose and scope. (1) This part sets forth the procedures to be
followed in proceedings in which the Peace Corps is not a party,
whenever a subpoena, order or other demand (collectively referred to as
a ``demand'') of a court or other authority is issued for:
(i) The production or disclosure of any material contained in the
files of the Agency;
(ii) The production or disclosure of any information relating to
material contained in the files of the Agency;
(iii) The production or disclosure of any information or material
acquired by any person while such person was an employee of the Agency
as a part of the performance of his official duties or because of his
official status, or
(iv) The production of an employee of the Agency for the deposition
or an appearance as a witness in a legal action or proceeding.
(2) For purposes of this part, the term ``employee of the Agency''
includes all officers and employees of the Agency appointed by, or
subject to the supervision, jurisdiction or control of, the director of
the Agency, including personal services contractors. Also for purposes
of this part, records of the Agency do not include records of the Office
of Inspector General.
(3) This part is intended to provide instructions regarding the
internal operations of the Agency, and is not intended, and does not and
may not be relied upon, to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Agency.
(4) This part applies to:
(i) State and local court, administrative and legislative
proceedings; and
(ii) Federal court and administrative proceedings.
(5) This part does not apply to:
(i) Congressional requests or subpoenas for testimony or documents:
(ii) Employees or former employees making appearances solely in
their private capacity in legal or administrative proceedings that do
not relate to the Agency (such as cases arising out of traffic accidents
or domestic relations); Any questions whether the appearance relates
solely to the employee's or former employee's private capacity should be
referred to the Office of the General Counsel.
(6) Nothing in this part otherwise permits disclosure of information
by the Agency except as is provided by statute or other applicable law.
(b) Procedure in the event of a demand for production or disclosure.
(1) No employee or former employee of the Agency shall, in response to a
demand of a court or other authority set forth in
[[Page 16]]
Sec. 303.14(a) produce any material, disclose any information or appear
in any proceeding, described in Sec. 303.14(a) without the approval of
the General Counsel or designee.
(2) Whenever an employee or former employee of the Peace Corps
receives a demand for the production of material or the disclosure of
information described in Sec. 303.14(a) he shall immediately notify and
provide a copy of the demand to the General Counsel or designee. The
General Counsel, or designee, shall be furnished by the party causing
the demand to be issued or served a written summary of the information
sought, its relevance to the proceeding in connection with which it was
served and why the information sought is unavailable by any other means
or from any other sources.
(3) The General Counsel, or designee, in consultation with
appropriate Agency officials, including the Agency's FOIA Officer, or
designee, and in light of the considerations listed in Sec. 303.14(d),
will determine whether the person on whom the demand was served should
respond to the demand.
(4) To the extent he deems it necessary or appropriate, the General
Counsel or designee, may also require from the party causing such demand
to be issued or served a plan of all reasonably foreseeable demands,
including but not limited to names of all employees and former employees
from whom discovery will be sought, areas of inquiry, length of time of
proceedings requiring oral testimony and identification of documents to
be used or whose production is sought.
(c) Considerations in determining whether production or disclosure
should be made pursuant to a demand. (1) In deciding whether to make
disclosures pursuant to a demand, the General Counsel or designee, may
consider, among things:
(i) Whether such disclosure is appropriate under the rules of
procedure governing the case or matter in which the demand arose; and
(ii) Whether disclosure is appropriate under the relevant
substantive law concerning privilege.
(2) Among the demands in response to which disclosure will not be
made are those demands with respect to which any of the following
factors exist:
(i) Disclosure would violate a statute or a rule of procedure;
(ii) Disclosure would violate the privacy rights of an individual;
(iii) Disclosure would violate a specific regulation;
(iv) Disclosure would reveal classified information, unless
appropriately declassified by the originating agency;
(v) Disclosure would reveal trade secrets or proprietary information
without the owner's consent;
(vi) Disclosure would otherwise adversely affect the interests of
the United States or the Peace Corps; or
(vii) Disclosure would impair an ongoing Inspector General or
Department of Justice investigation.
PART 304_CLAIMS AGAINST GOVERNMENT UNDER FEDERAL TORT CLAIMS ACT--Table
of Contents
General Provisions
Sec.
304.1 Scope; definitions.
Procedures
304.2 Administrative claim; when presented; appropriate Peace Corps
Office.
304.3 Administrative claim; who may file.
304.4 Administrative claim; evidence and information to be submitted.
304.5 Investigations.
304.6 Claims investigation.
304.7 Authority to adjust, determine, compromise, and settle claims.
304.8 Limitations on authority.
304.9 Referral to the Department of Justice.
304.10 Review of claim.
304.11 Final denial of claim.
304.12 Action on approved claim.
Authority: 28 U.S.C. 2672; 22 U.S.C. 2503(b); E.O. 12137, as
amended.
Source: 34 FR 5840, Mar. 28, 1969, unless otherwise noted.
General Provisions
Sec. 304.1 Scope; definitions.
(a) This subpart applies to claims asserted under the Federal Tort
Claims Act, as amended, accruing on or after January 18, 1967, for money
damages against the United States for injury to or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of an officer
[[Page 17]]
or employee of the Peace Corps, a person serving the Peace Corps under
invitational travel orders, or a Peace Corps Volunteer or trainee while
acting within the scope of his office or employment.
(b) This subpart is not applicable to claims arising in a foreign
country; it is applicable to claims arising in Puerto Rico and the
Virgin Islands.
(c) This subpart is issued subject to and consistent with applicable
regulations on administrative claims under the Federal Tort Claims Act
issued by the Attorney General (28 CFR part 14).
(d) For the purposes of this subpart, the term ``General Counsel''
means the General Counsel of the Peace Corps or his designee.
[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4205, Jan. 30, 2007]
Procedures
Sec. 304.2 Administrative claim; when presented; appropriate Peace
Corps Office.
(a) For purposes of this subpart, a claim shall be deemed to have
been presented when the Peace Corps receives, at a place designated in
paragraph (b) of this section, an executed ``Claim for Damages or
Injury,'' Standard Form 95, or other written notification of an
incident, accompanied by a claim for money damages in a sum certain for
injury to or loss of property, for personal injury, or for death alleged
to have occurred by reason of the incident. A claim which should have
been presented to the Peace Crops, but which was mistakenly addressed to
or filed with another Federal agency, is deemed to have been presented
to the Peace Corps as of the date that the claim is received by the
Peace Corps. If a claim is mistakenly addressed to or filed with the
Peace Corps, the Peace Corps shall forthwith transfer it to the
appropriate Federal agency, if ascertainable, or return it to the
claimant.
(b) A claimant shall mail or deliver his claim to the General
Counsel, Peace Corps, 1111 20th Street, NW., Washington, DC 20526.
[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4206, Jan. 30, 2007]
Sec. 304.3 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property, his duly authorized agent, or his legal
representative.
(b) A claim for personal injury may be presented by the injured
person, his duly authorized agent, or his legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate, or by any other person legally
entitled to assert such a claim in accordance with applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. Claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interests appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, he shall present with his
claim appropriate evidence that he has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his authority to present a claim on
behalf of the claimant.
Sec. 304.4 Administrative claim; evidence and information to be
submitted.
(a) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by his attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed or designated by
the Peace Corps or another Federal agency. A copy of the report of the
examining physician shall be made available to
[[Page 18]]
the claimant upon the claimant's written request provided that he has,
upon request, furnished the report referred to in the first sentence of
this paragraph and has made or agrees to make available to the Peace
Corps any other physician's report previously or thereafter made of the
physical or mental condition which is the subject matter of his claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his employer showing actual time lost from employment,
whether he is a full-or part-time employee, and wages or salary actually
lost;
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(b) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at the time of death,
including his monthly or yearly salary or earnings (if any), and the
duration of his last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of decedent's survivors, including identification of those survivors who
were dependent for support upon decedent at the time of his death.
(4) Degree of support afforded by decedent to each survivor
dependent upon him for support at the time of his death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information.
(1) Proof of ownership.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) Two or more itemized written estimates of the cost of such
repairs and any itemized receipt of payment for necessary repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 304.5 Investigations.
The Peace Corps may investigate, or the General Counsel may request
any other Federal agency to investigate, a claim filed under this
subpart.
Sec. 304.6 Claims investigation.
(a) When a claim has been filed with the Peace Corps, the General
Counsel will send a copy of the claim to the head of the office
concerned and ask him to designate one employee of that office who shall
act as, and who shall be referred to herein as, the Claims Investigating
Officer for that particular claim. The Claims Investigating Officer
shall, with the advice of the General Counsel, where necessary:
(1) Investigate as completely as is practicable the nature and
circumstances of the occurrence causing
[[Page 19]]
the loss or damage of the claimant's property.
(2) Ascertain the extent of loss or damage to the claimant's
property.
(3) Assemble the necessary forms with required data contained
therein.
(4) Prepare a brief statement setting forth the facts relative to
the claim (in the case of motor vehicle accidents, facts should be
recorded on Standard Form 91-A), a statement whether the claim satisfies
the requirements of this subpart, and a recommendation as to the amount
to be paid in settlement of the claim.
(5) The head of the office concerned will be responsible for
assuring that all necessary forms, statements, and all supporting papers
have been procured for the file and will transmit the entire file to the
General Counsel.
Sec. 304.7 Authority to adjust, determine, compromise, and settle claims.
The authority to consider, ascertain, adjust, determine, compromise
and settle claims of less than $5,000 under 28 U.S.C. 2672, and this
subpart, rests with the Chief Financial Officer, as the designee of the
head of the agency. For claims under 28 U.S.C. 2672 and this subpart,
subject to Sec. 304.8, the Director of the Peace Corps retains
authority to consider, ascertain, adjust, determine, compromise and
settle claims of $5,000 or more.
[72 FR 4206, Jan. 30, 2007]
Sec. 304.8 Limitations on authority.
(a) An award, compromise, or settlement of a claim under section
2672 of title 28, United States Code, and this subpart in excess of
$25,000 may be effected only with the prior written approval of the
Attorney General or his designee. For the purpose of this paragraph, a
principal claim and any derivative or subrogated claim shall be treated
as a single claim.
(b) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when, in the opinion of the General Counsel:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party, and the Peace Corps is unable to adjust
the third party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined,
compromised, or settled only after consultation with the Department of
Justice when the Peace Corps is informed or is otherwise aware that the
United States or an officer, employee, agent, or cost-type contractor of
the United States is involved in litigation based on a claim arising out
of the same incident or transaction.
Sec. 304.9 Referral to the Department of Justice.
When Department of Justice approval or consultation is required
under Sec. 304.8, the referral or request shall be transmitted to the
Department of Justice by the General Counsel.
[72 FR 4206, Jan. 30, 2007]
Sec. 304.10 Review of claim.
(a) Upon receipt of the claim file from the head of the office
concerned, the General Counsel will ascertain that all supporting papers
are contained in the file.
(b) After legal review and recommendation by the General Counsel,
the Director of the Peace Corps will make a written determination on the
claim, unless the claim is worth less than $5,000, in which case the
Chief Financial Officer will make the written determination.
[34 FR 5840, Mar. 28, 1969, as amended at 73 FR 21528, Apr. 22, 2008; 73
FR 49943, Aug. 25, 2008]
Sec. 304.11 Final denial of claim.
The General Counsel will send notification of the final denial of an
administrative claim to the claimant, his attorney, or legal
representative by certified or registered mail. The notification of
final denial may include a statement of the reasons for the denial and
shall include a statement that, if
[[Page 20]]
the claimant is dissatisfied with the Peace Corps action, he may file
suit in an appropriate U.S. District Court not later than 6 months after
the date of mailing of the notification.
Sec. 304.12 Action on approved claim.
(a) Payment of a claim approved under this subpart is contingent on
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard
From 95; and (2) a ``Voucher for Payment,'' Standard Form 1145, as
appropriate. When a claimant is represented by an attorney, the voucher
for payment shall designate the claimant and his attorney as copayees,
and the check shall be delivered to the attorney, whose address shall
appear on the voucher.
(b) Acceptance by the claimant, his agent, or legal representative
of an award, compromise, or settlement made under section 2672 or 2677
of title 28, United States Code, is final and conclusive on the
claimant, his agent or legal representative, and any other person on
whose behalf or for whose benefit the claim has been presented, and
constitutes a complete release of any claim against the United States
and against any officer or employee of the Government whose act or
omission gave rise to the claim, by reason of the same subject matter.
PART 305_ELIGIBILITY AND STANDARDS FOR PEACE CORPS VOLUNTEER
SERVICE--Table of Contents
Sec.
305.1 Purpose and general guideline.
305.2 Eligibility.
305.3 Background investigations.
305.4 Selection standards.
305.5 Procedures.
Authority: Sec. 4(b), 5(a) and 22, 75 Stat. 612, 22 U.S.C. 2504;
E.O. 12137, May 16, 1979, sec. 601, International Security and
Development Cooperation Act of 1981; 95 Stat. 1519 at 1540, sec.
417(c)(1), Domestic Volunteer Service Act (42 U.S.C. 5057(c)(1)).
Source: 49 FR 38939, Oct. 2, 1984, unless otherwise noted.
Sec. 305.1 Purpose and general guideline.
This subpart states the requirements for eligibility for Peace Corps
Volunteer service and the factors considered in the assessment and
selection of eligible applicants for training and service. In selecting
individuals for Peace Corps Volunteer service under this subpart, as
required by section 5(a) of the Peace Corps Act, as amended, ``no
political test shall be required to be taken into consideration, nor
shall there be any discrimination against any person on account of race,
sex, creed, or color.'' Further, in accordance with section 417(c)(1) of
the Domestic Volunteer Service Act, as amended (42 U.S.C. 5057 (c)(1))
the nondiscrimination policies and authorities set forth in section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.) and the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), are also applicable
to the selection, placement, service and termination of Peace Corps
Volunteers.
Sec. 305.2 Eligibility.
In addition to those skills, personal attributes and aptitudes
required for available Volunteer assignments, the following are the
basic requirements that an applicant must satisfy in order to receive an
invitation to train for Peace Corps Volunteer service.
(a) Citizenship. The applicant must be a citizen of the United
States or have made arrangements satisfactory to the Office of
Marketing, Recruitment, Placement and Staging (MRPS) and the Office of
General Counsel (D/GC) to be naturalized prior to taking the oath
prescribed for enrollment as a Peace Corps Volunteer. (See section 5[a]
of the Peace Corps Act, as amended).
(b) Age. The applicant must be at least 18 years old.
(c) Medical status. The applicant must, with reasonable
accommodation, have the physical and mental capacity required of a
Volunteer to perform the essential functions of the Peace Corps
Volunteer assignment for which he or she is otherwise eligible, and be
able to complete an agreed upon tour of service, ordinarily two years,
without unreasonable disruption due to health problems. In determining
what is a reasonable accommodation, the Peace Corps may take into
account the adequacy of local medical facilities. In determining whether
an accommodation
[[Page 21]]
would impose an undue hardship on the operation of the Peace Corps,
factors to be considered include: (1) The overall size of the Peace
Corps program with respect to the number of employees and/or Volunteers,
size of budget, and size and composition of staff at post of assignment,
(2) the nature and cost of the accommodation, and (3) the capacity of
the host country agency to which the applicant would be assigned to
provide any special accommodation necessary for the applicant to carry
out the assignment.
(d) Legal status. The applicant must not be on parole or probation
to any court or have any court established or acknowledged financial or
other legal obligation which, in the opinion of D/GC and MRPS, cannot be
satisfied or postponed during the period of Peace Corps service.
(e) Intelligence background. In accordance with longstanding Peace
Corps policy, prior employment by any agency of the United States
Government, civilian or military, or division of such an agency, whose
exclusive or principle function is the performance of intelligence
activities; or engaging in intelligence activities or related work may
disqualify a person from eligibility for Peace Corps service. See
section 611 of the Peace Corps Manual.
(f) Marital status. (1) Ordinarily, if an applicant is married or
intends to marry prior to Peace Corps service, both husband and wife
must apply and qualify for assignment at the same location. Exceptions
to this rule will be considered by the Office of Volunteer Placement
(MRPS/P) under the following conditions:
(2)(i) Unaccompanied married applicant. In order to qualify for
consideration for Peace Corps service, a married applicant whose spouse
does not wish to accompany him/her overseas must provide the Office of
Placement (MRPS/P) with a notarized letter from the spouse acknowledging
that he or she is aware of the applicant spouse's intention to serve as
a Peace Corps Volunteer for two years or more and that any financial and
legal obligations of the applicant to his or her spouse can be met
during the period of Peace Corps service. In determining eligibility in
such cases, MRPS/P will also consider whether the service of one spouse
without the accompaniment of the other can reasonably be anticipated to
disrupt the applicant spouse's service overseas.
(ii) In addition to satisfying the above requirements, a married
applicant who is legally, or in fact, separated from his or her spouse,
must provide MRPS/P with copies of any agreements or other documentation
setting forth any legal and financial responsibilities which the parties
have to one another during any period of separation.
(3) Divorced applicants. Applicants who have been divorced must
provide MRPS/P with copies of all legal documents related to the
divorce.
(g) Dependents. Peace Corps has authority to provide benefits and
allowances for the dependent children of Peace Corps Volunteers who are
under the age of 18. However, applicants with dependent children under
the age of 18 will not be considered eligible for Peace Corps service
unless MRPS/P determines that the skills of the applicants are essential
to meet the requirements of a Volunteer project, and that qualified
applicants without minor dependents are not available to fill the
assignment.
(1) Procedures for placing volunteers with children. The placement
of any couple with dependent children must have the concurrence of the
appropriate Country and Regional Director.
(2) If the applicant has any dependents who will not accompany him
or her overseas, the applicant must satisfy MRPS/P and the General
Counsel that adequate arrangements have been made for the care and
support of the dependent during any period of training and Peace Corps
service; that such service will not adversely affect the relationship
between the applicant and dependent in such a way as to disrupt his or
her service; and that he or she is not using Peace Corps service to
escape responsibility for the welfare of any dependents under the age of
18.
(3) Married couples with more than two children or with children who
are below two years of age are not eligible for Peace Corps service
except in extraordinary circumstances as approved
[[Page 22]]
by the Director of the Peace Corps or designee.
(h) Military service. Applicants with military or national guard
obligation must provide MRPS/P with a written statement from their
commanding officer that their presence will not be required by their
military unit for the duration of their Peace Corps service, except in
case of national emergency.
(i) Failure to disclose requested information. Failure to disclose,
and/or the misrepresentation of material information requested by the
Peace Corps regarding any of the above described standards of
eligibility may be grounds for disqualification or separation from Peace
Corps Volunteer service. (See section 284 of the Peace Corps Manual.)
Sec. 305.3 Background investigations.
Section 22 of the Peace Corps Act states that to ensure enrollment
of a Volunteer is consistent with the national interest, no applicant is
eligible for Peace Corps Volunteer service without a background
investigation. The Peace Corps requires that all applicants accepted for
training have as a minimum a National Agency Check. Information revealed
by the investigation may be grounds for disqualification from Peace
Corps service.
Sec. 305.4 Selection standards.
To qualify for selection for overseas service as a Peace Corps
Volunteer, applicants must demonstrate that they possess the following
personal attributes:
(a) Motivation. A sincere desire to carry out the goals of Peace
Corps service, and a commitment to serve a full term as a Volunteer.
(b) Productive competence. The intelligence and educational
background to meet the needs of the individual's assignment.
(c) Emotional maturity/adaptability. The maturity, flexibility, and
self-sufficiency to adapt successfully to life in another culture, and
to interact and communicate with other people regardless of cultural,
social, and economic differences.
(d) Skills. By the end of training, in addition to the attributes
mentioned above, a Trainee must demonstrate competence in the following
areas:
(1) Language. The ability to communicate in the language of the
country of service with the fluency required to meet the needs of the
overseas assignment.
(2) Technical competence. Proficiency in the technical skills needed
to carry out the assignment.
(3) Knowledge. Adequate knowledge of the culture and history of the
country of assignment to ensure a successful adjustment to, and
acceptance by, the host country society. The Trainee must also have an
awareness of the history and government of the United States which
qualifies the individual to represent the United States abroad.
(e) Failure to meet standards. Failure to meet any of the selection
standards by the completion of training may be grounds for deselection
and disqualification from Peace Corps service.
Sec. 305.5 Procedures.
Procedures for filing, investigating, and determining allegations of
discrimination on the basis of race, color, national origin, religion,
age, sex, handicap or political affiliation in the application of any
provision of this part are contained in MS 293 (45 CFR part 1225).
PART 306_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents
Cross Reference: ACTION regulations concerning the volunteer
discrimination complaint procedure, appearing in 45 CFR part 1225, are
applicable to Peace Corps volunteers. Part 1225 appears at 46 FR 1609,
Jan. 6, 1981.
PART 308_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents
Sec.
308.1 Purpose.
308.2 Policy.
308.3 Definitions.
308.4 Disclosure of records.
308.5 New uses of information.
308.6 Reports regarding changes in systems.
308.7 Use of social security account number in records systems.
[Reserved]
308.8 Rules of conduct.
308.9 Records systems--management and control.
[[Page 23]]
308.10 Security of records systems--manual and automated.
308.11 Accounting for disclosure of records.
308.12 Contents of records systems.
308.13 Access to records.
308.14 Specific exemptions.
308.15 Identification of requesters.
308.16 Amendment of records and appeals with respect thereto.
308.17 Denial of access and appeals with respect thereto.
308.18 Fees.
Authority: 5 U.S.C. 552a.
Source: 50 FR 1844, Jan. 14, 1985, unless otherwise noted.
Sec. 308.1 Purpose.
The purpose of this part is to set forth the basic policies of the
Peace Corps governing the maintenance of systems of records containing
personal information as defined in the Privacy Act of 1974 (5 U.S.C.
552a). Records included in this part are those described in the
aforesaid Act and maintained by the Peace Corps and/or any component
thereof.
Sec. 308.2 Policy.
It is the policy of the Peace Corps to protect, preserve and defend
the right of privacy of any individual as to whom the agency maintains
personal information in any records system and to provide appropriate
and complete access to such records including adequate opportunity to
correct any errors in said records. It is further the policy of the
agency to maintain its records in such a fashion that the information
contained therein is and remains material and relevant to the purposes
for which it is collected in order to maintain its records with fairness
to the individuals who are the subject of such records.
Sec. 308.3 Definitions.
(a) Record means any document, collection, or grouping of
information about an individual maintained by the agency, including but
not limited to information regarding education, financial transactions,
medical history, criminal or employment history, or any other personal
information which contains the name or personal identification number,
symbol, photograph, or other identifying particular assigned to such
individual, such as a finger or voiceprint.
(b) System of Records means a group of any records under the control
of the agency from which information is retrieved by use of the name of
an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(c) Routine Use means, with respect to the disclosure of a record,
the use of such record for a purpose which is compatible with the
purpose for which it was collected.
(d) The term agency means the Peace Corps or any component thereof.
(e) The term individual means any citizen of the United States or an
alien lawfully admitted to permanent residence.
(f) The term maintain includes the maintenance, collection, use or
dissemination of any record.
(g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as
amended from time to time.
Sec. 308.4 Disclosure of records.
The agency will not disclose any personal information from systems
of records it maintains to any individual other than the individual to
whom the record pertains, or to another agency, without the express
written consent of the individual to whom the record pertains, or his or
her agent or attorney, except in the following instances:
(a) To officers or employees of the Peace Corps having a need for
such record in the official performance of their duties.
(b) When required under the provisions of the Freedom of Information
Act (5 U.S.C. 552).
(c) For routine uses as published in the Federal Register.
(d) To the Bureau of the Census for uses pursuant to title 13.
(e) To an individual or agency having a proper need for such record
for statistical research provided that such record is transmitted in a
form which is not individually identifiable and that an appropriate
written statement is obtained from the person to whom the record is
transmitted stating the purpose for the request and a certification
under oath that the records will be used only for statistical purposes.
[[Page 24]]
(f) To the National Archives of the United States as a record of
historical value under rules and regulations of the Archives or to the
Administrator of General Services or his designee to determine if it has
such value.
(g) To an agency or instrumentality of any governmental jurisdiction
within the control of the United States for civil or criminal law
enforcement activities, if the activity is authorized by law, and the
head of any such agency or instrumentality has made a written request
for such records specifying the particular portion desired and the law
enforcement activity for which the record is sought. Such a record may
also be disclosed by the agency to the law enforcement agency on its own
initiative in situations in which criminal conduct is suspected:
Provided, That such disclosure has been established as a routine use or
in situations in which the misconduct is directly related to the purpose
for which the record is maintained.
(h) In emergency situations upon a showing of compelling
circumstances affecting the health or safety of any individual provided
that after such disclosure, notification of such disclosure must be
promptly sent to the last known address of the individual to whom the
record pertains.
(i) To either House of Congress or to a subcommittee or committee
(joint or of either house) to the extent the subject matter falls within
their jurisdiction.
(j) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office.
(k) Pursuant to an order by the presiding judge of a court of
competent jurisdiction. If any record is disclosed under such compulsory
legal process and subsequently made public by the court which issued it,
the agency must make a reasonable effort to notify the individual to
whom the record pertains of such disclosure.
(l) To consumer reporting agencies as defined in 31 U.S.C.
3701(a)(3) in accordance with 31 U.S.C. 3711, and under contracts for
collection services as authorized in 31 U.S.C. 3718.
Sec. 308.5 New uses of information.
The agency shall publish in the Federal Register a notice of its
intention to establish a new or revised routine use of any system of
records maintained by it with an opportunity for public comments on such
use. Such notice shall contain the following:
(a) The name of the system of records for which the new or revised
routine use is to be established.
(b) The authority for maintaining the system of records.
(c) The categories of records maintained in the system.
(d) The purpose for which the record is to be maintained.
(e) The proposed routine use(s).
(f) The purpose of the routine use(s).
(g) The categories of recipients of such use.
In the event of any request for an addition to the routine uses of the
systems which the agency maintains, such request may be sent to the
following officer: Director, Office of Administrative Services, Peace
Corps, 806 Connecticut Avenue, NW., Washington, DC 20526.
Sec. 308.6 Reports regarding changes in systems.
The agency shall provide to Congress and the Office of Management
and Budget advance notice of any proposal to establish or alter any
system of records as defined herein. This report will be submitted in
accord with guidelines provided by the Office of Management and Budget.
Sec. 308.7 Use of social security account number in records systems.
[Reserved]
Sec. 308.8 Rules of conduct.
(a) The head of the agency shall assure that all persons involved in
the design, development, operation or maintenance of any systems of
records as defined herein are informed of all requirements necessary to
protect the privacy of individuals who are the subject of such records.
All employees shall be informed of all implications of the Act in this
area including the criminal penalties provided under the Act, and the
fact the agency may be
[[Page 25]]
subject to civil suit for failure to comply with the provisions of the
Privacy Act and these regulations.
(b) The head of the agency shall also ensure that all personnel
having access to records receive adequate training in the protection of
the security of personal records and that adequate and proper storage is
provided for all such records with sufficient security to assure the
privacy of such records.
Sec. 308.9 Records systems--management and control.
(a) The Director, Office of Administrative Services, shall have
overall control and supervision of the security of all records keeping
systems and shall be responsible for monitoring the security standards
set forth in these regulations.
(b) A designated official (System Manager) shall be named who shall
have management responsibility for each record system maintained by the
agency and who shall be responsible for providing protection and
accountability for such records at all times and for insuring that such
records are secured in appropriate containers wherever not in use or in
the direct control of authorized personnel.
Sec. 308.10 Security of records systems--manual and automated.
The head of the agency has the responsibility of maintaining
adequate technical, physical, and security safeguards to prevent
unauthorized disclosure or destruction of manual and automatic record
systems. These security safeguards shall apply to all systems in which
identifiable personal data are processed or maintained including all
reports and outputs from such systems which contain identifiable
personal information. Such safeguards must be sufficient to prevent
negligent, accidental, or unintentional disclosure, modification or
destruction of any personal records or data and must furthermore
minimize the extent technicians or knowledgeable persons could
improperly obtain access to modify or destroy such records or data and
shall further insure against such casual entry by unskilled persons
without official reasons for access to such records or data.
(a) Manual systems. (1) Records contained in records systems as
defined herein may be used, held or stored only where facilities are
adequate to prevent unauthorized access by persons within or without the
agency.
(2) All records systems when not under the personal control of the
employees authorized to use same must be stored in an appropriate metal
filing cabinet. Where appropriate, such cabinet shall have a three
position dial-type combination lock, and/or be equipped with a steel
lock bar secured by a GSA approved changeable combination padlock or in
some such other securely locked cabinet as may be approved by GSA for
the storage of such records. Certain systems are not of such
confidential nature that their disclosure would harm an individual who
is the subject of such record. Records in this category shall be
maintained in steel cabinets without the necessity of combination locks.
(3) Access to and use of systems of records shall be permitted only
to persons whose official duties require such access within the agency,
for routine use as defined in Sec. 308.4 and in the Peace Corps'
published systems of records notices, or for such other uses as may be
provided herein.
(4) Other than for access within the agency to persons needing such
records in the performance of their official duties or routine uses as
defined herein and in the Peace Corps' systems of records notices or
such other uses as provided herein, access to records within systems of
records shall be permitted only to the individual to whom the record
pertains or upon his or her written request to a designated personal
representative.
(5) Access to areas where records systems are stored will be limited
to those persons whose official duties require work in such areas and
proper accounting of removal of any records from storage areas shall be
maintained at all times in the form directed by the Director,
Administrative Services.
(6) The agency shall assure that all persons whose official duties
require access to and use of records contained in records systems are
adequately trained to protect the security and privacy of such records.
[[Page 26]]
(7) The disposal and destruction of records within records systems
shall be in accord with rules promulgated by the General Services
Administration.
(b) Automated systems. (1) Identifiable personal information may be
processed, stored or maintained by automatic data systems only where
facilities or conditions are adequate to prevent unauthorized access to
such systems in any form. Whenever such data contained in punch cards,
magnetic tapes or discs are not under the personal control of an
authorized person such information must be stored in a metal filing
cabinet having a built-in three position combination lock, a metal
filing cabinet equipped with a steel lock, a metal filing cabinet
equipped with a steel lock bar secured with a General Services
Administration (GSA) approved combination padlock, or in adequate
containers or in a secured room or in such other facility having greater
safeguards than those provided for herein.
(2) Access to and use of identifiable personal data associated with
automated data systems shall be limited to those persons whose official
duties require such access. Proper control of personal data in any form
associated with automated data systems shall be maintained at all times
including maintenance of accountability records showing disposition of
input and output documents.
(3) All persons whose official duties require access to processing
and maintenance of identifiable personal data and automated systems
shall be adequately trained in the security and privacy of personal
data.
(4) The disposal and disposition of identifiable personal data and
automated systems shall be carried on by shredding, burning or in the
case of tapes of discs, degaussing, in accord with any regulations now
or hereafter proposed by the GSA or other appropriate authority.
Sec. 308.11 Accounting for disclosure of records.
Each office maintaining a system of records shall keep a written
account of routine disclosures (see paragraphs (a) through (e) of this
section) for all records within such system in the form prescribed by
the Director, Office of Administrative Services. Disclosure made to
employees of the agency in the normal course of their official duties or
pursuant to the provisions of the Freedom of Information Act need not be
accounted for. Such written account shall contain the following:
(a) The date, nature, and purpose of each disclosure of a record to
any person or to another agency.
(b) The name and address of the person or agency to whom the
disclosure was made.
(c) Sufficient information to permit the construction of a listing
of all disclosures at appropriate periodic intervals.
(d) The justification or basis upon which any release was made
including any written documentation required when records are released
for statistical or law enforcement purposes under the provisions of
subsection (b) of the Act.
(e) For the purpose of this part, the system of accounting for
disclosure is not a system of records under the definitions hereof and
no accounting need be maintained for the disclosure of accounting of
disclosures.
Sec. 308.12 Contents of records systems.
(a) The agency shall maintain in any records contained in any
records system hereunder only such information about an individual as is
accurate, relevant, and necessary to accomplish the purpose for which
the agency acquired the information as authorized by statute or
executive order.
(b) In situations in which the information may result in adverse
determinations about such individual's rights, benefits and privileges
under any Federal program, all information placed in records systems
shall, to the greatest extent practicable, be collected from the
individual to whom the record pertains.
(c) Each form or other document which an individual is expected to
complete in order to provide information for any records system shall
have appended thereto, or in the body of the document:
(1) An indication of the authority authorizing the solicitation of
the information and whether the provision of
[[Page 27]]
the information is mandatory or voluntary.
(2) The purpose or purposes for which the information is intended to
be used.
(3) Routine uses which may be made of the information and published
pursuant to Sec. 308.7 of this regulation.
(4) The effect on the individual, if any, of not providing all or
part of the required or requested information.
(d) Records maintained in any system of records used by the agency
to make any determinatioin about any individual shall be maintained with
such accuracy, relevancy, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the making of any
determination about such individual: Provided, however, That the agency
shall not be required to update or keep current retired records.
(e) Before disseminating any record about an individual to any
person other than an agency as defined in 5 U.S.C. 552(e) or pursuant to
the provsions of the Freedom of Information Act (5 U.S.C. 552), the
agency shall make reasonable efforts to assure that such records are
accurate, complete, timely and relevant for agency purposes.
(f) Under no circumstances shall the agency maintain any record
about an individual with respect to or describing how such individual
exercises rights guaranteed by the first amendment of the Constitution
of the United States unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to
and within the scope of an authorized law enforcement activity.
(g) In the event any record is disclosed as a result of the order of
a presiding judge of a court of competent jurisdiction, the agency shall
make reasonable efforts to notify the individual whose record was so
disclosed after the process becomes a matter of public record.
Sec. 308.13 Access to records.
(a) The Director, Administrative Services, shall keep a current list
of systems of records maintained by the agency and published in
accordance with the provisions of these regulations.
(b) Individuals requesting access to any record the agency maintains
about him or her in a system of records shall be provided access to such
records. Such requests shall be submitted in writing by mail, or in
person during regular business hours, to the System Managers identified
in the specific system notices. Systems maintained at overseas and
dometic field offices may be addressed to the Country Director or
Regional Service Center Manager. If assistance is needed, the Director,
Office of Administrative Services, will provide agency addresses.
(c) Requests for records from more than one system of records shall
be directed to the Director, Office of Administrative Services, Peace
Crops, 806 Connecticut Avenue, NW., Washington, DC 20526.
(d) Requests for access to or copies of records should contain, at a
minimum, identifying information needed to locate any given record and a
brief description of the item or items of information required. If the
individual wishes access to specific documents the request should
identify or describe as nearly as possible such documents.
(e) A record may be disclosed to a representative of the person to
whom a record relates who is authorized in writing to have access to the
record by the person to whom it relates.
(f) A request made in person will be promptly complied with if the
records sought are in the immediate custody of the Peace Corps. Mailed
or personal request for documents in storage which must be complied from
more than one location, or which are otherwise not immediately
available, will be acknowledge within ten working days, and the records
requested will be provided as promptly thereafter as possible.
(g) Medical or psychological records shall be disclosed to an
individual unless in the judgment of the agency, access to such records
might have an adverse effect upon such individual. When such
determination has been made, the agency may require that the information
be disclosed only to a physician chosen by the requesting individual.
Such physician shall have full authority to disclose all or any portion
of
[[Page 28]]
such record to the requesting individual in the exercise of his or her
professional judgment.
Sec. 308.14 Specific exemptions.
Records or portions of records in certain record systems specified
in paragraphs (a) through (c) of this section shall be exempt from
disclosure: Provided, however, That no such exemption shall apply to the
provisions of Sec. 308.12(a) (maintaining records with accuracy,
completeness, etc. as reasonably necessary for agency purposes); Sec.
308.12(b) (collecting information directly from the individual to whom
it pertains); Sec. 308.12(c) (informing individuals asked to supply
information of the purposes for which it is collected and whether it is
mandatory); Sec. 308.12(g) (notifying the subjects of records disclosed
under compulsory court process); Sec. 308.16(d)(3) (informing prior
recipient of corrected or disputed records); Sec. 308.16(g) (civil
remedies). With the above exceptions the following material shall be
exempt from disclosure to the extent indicated:
(a) Material in any system of records considered classified and
exempt from disclosure under provisions of section 552(b)(1) of the
Freedom of Information Act. Agency systems of records now containing
such material are: Legal Files--Staff, Volunteers and Applicants;
Security Records Peace Corps Staff/Volunteers and ACTION staff.
(1) Authority: 5 U.S.C. 552a (k)(1)
(2) Reasons: To protect information classified in the interest of
national defense or foreign policy.
(b) Investigatory material compiled for the purposes of law
enforcement: Provided, however, That if any individual is denied any
right, privilege, or benefit that he or she would otherwise be entitled
to by Federal law, or for which he or she would otherwise be eligible,
as a result of the maintenance of such material, such material shall be
provided to such individual except to the extent necessary to protect
the identity of a source who furnished information to the government
under an express promise that his or her identity would be held in
confidence, or prior to the effective date of the Privacy Act of 1974,
under an implied promise of such confidentiality of the identity of such
source. Agency systems of records containing such investigatory material
are: Discrimination Complaint Files; Employee Occupational Injury and
Illness Reports; Legal Files--Staff, Volunteers and Applicants; Security
Records--Peace Corps Staff/Volunteers and ACTION Staff.
(1) Authority: 5 U.S.C. 552a(k)(2)
(2) Reasons: To protect the identity of sources to whom proper
promises of confidentiality have been made during investigations.
Without these promises, sources will often be unwilling to provide
information essential in adjudicating access in a fair and impartial
manner.
(c) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualification for service as an
employee or volunteer or for the obtaining of a Federal contract or for
access to classified information: Provided, however, That such material
shall be disclosed to the extent possible without revealing the identity
of a source who furnished information to the government under an express
promise of the confidentiality of his or her identity or, prior to the
effective date of the Privacy Act of 1974, under an implied promise of
such confidentiality of identity. Agency systems of records containing
such material are: Contractors and Consultant Files; Discrimination
Complaint Files; Legal Files--Staff, Volunteers and Applicants; Personal
Service Contract Records--Peace Corps Staff/Volunteers and ACTION Staff;
Staff Applicant and Personnel Records; Talent Bank; Volunteer Applicant
and Service Record Systems.
(1) Authority: 5 U.S.C. 552a(k)(5)
(2) Reasons: To ensure the frankness of information used to
determine whether Peace Corps Volunteers applicants and Peace Corps
Staff applicants are qualified for service with the agency.
(d) Records in the Office of Inspector General Investigative Files
and Records system of records are exempt from certain provisions to the
extent provided hereinafter.
(1) To the extent that the system of records pertains to the
enforcement of criminal laws, the Office of Inspector General
Investigative Files and
[[Page 29]]
Records system of records is exempt from all sections of the Privacy Act
(5 U.S.C. 552a) except the following sections: (b) relating to
conditions of disclosure; (c)(1) and (2) relating to keeping and
maintaining a disclosure accounting; (e)(4)(A) through (F) relating to
publishing a system notice setting the name, location, categories of
individuals and records, routine uses, and policies regarding storage,
retrievability, access controls, retention and disposal of the records;
(e)(6), (7), (9), (10), and (11) relating to dissemination and
maintenance of records and (i) relating to criminal penalties. This
system of records is also exempt from the provisions of Sec. 308.11
through Sec. 308.17 to the extent that the provisions of these sections
conflict with this paragraph.
(i) Authority: 5 U.S.C. 552a(j)(2).
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigations, investigators, and witnesses.
(C) To protect the identity of Federal employees who furnish a
complaint or information to OIG, consistent with section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(D) To protect the confidentiality of non-Federal employee sources
of information.
(E) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement information systems.
(F) To prevent disclosure of law enforcement techniques and
procedures.
(G) To avoid endangering the life or physical safety of confidential
sources.
(2) To the extent that there may exist within this system of records
investigative files compiled for law enforcement purposes, other than
material within the scope of subsection (j)(2) of the Privacy Act, the
OIG Investigative Files and Records system of records is exempt from the
following sections of the Privacy Act: (c)(3) relating to access to the
disclosure accounting; (d) relating to access to records; (e)(1)
relating to the type of information maintained in the records; (e)(4)
(G), (H), and (I) relating to publishing the system notice information
as to agency procedures for access and amendment, and information as to
the categories of sources or records; and (f) relating to developing
agency rules for gaining access and making corrections. Provided,
however, That if any individual is denied any right, privilege, or
benefit that they would otherwise be entitled by Federal law, or for
which they would otherwise be eligible, as a result of the maintenance
of such material, such material shall be provided to such individual
except to the extent that the disclosure of such material would reveal
the identity of a source who furnished information to the Government
under an express promise that the identity of the source would be held
in confidence, or, prior to January 1, 1975, under an implied promise
that the identity of the source would be held in confidence. This system
of records is also exempt from the provisions of Sec. 308.11 through
Sec. 308.17 to the extent that the provisions of these sections
conflict with this paragraph.
(i) Authority: 5 U.S.C. 552a(k)(2)
(ii) Reasons:
(A) To prevent interference with law enforcement proceedings.
(B) To protect investigatory material compiled for law enforcement
purposes.
(C) To avoid unwarranted invasion of personal privacy, by disclosure
of information about third parties, including other subjects of
investigation, law enforcement personnel, and sources of information.
(D) To fulfill commitments made to protect the confidentiality of
sources.
(E) To protect the identity of Federal employees who furnish a
complaint or information to the OIG, consistent with Section 7(b) of the
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
(F) To assure access to sources of confidential information,
including those contained in Federal, State, and local criminal law
enforcement systems.
(G) [Reserved]
(H) To prevent disclosure of law enforcement techniques and
procedures.
[[Page 30]]
(I) To avoid endangering the life or physical safety of confidential
sources and law enforcement personnel.
[50 FR 1844, Jan. 14, 1985, as amended at 58 FR 39657, July 26, 1993]
Sec. 308.15 Identification of requesters.
The agency shall require reasonable identification of all
individuals who request access to records to assure that records are not
disclosed to persons not entitled to such access.
(a) In the event an individual requests disclosure in person, such
individual shall be required to show an identification card such as a
driver's license, etc., containing a photo and a sample signature of
such individual. Such individual may also be required to sign a
statement under oath as to his or her identity acknowledging that he or
she is aware of the penalties for improper disclosure under the
provisions of the Privacy Act of 1974.
(b) In the event that disclosure is requested by mail, the agency
may request such information as may be necessary to reasonably assure
that the individual making such request is properly identified. In
certain cases, the agency may require that a mail request be notarized
with an indication that the notary received an acknowledgment of
identity from the individual making such request.
(c) In the event an individual is unable to provide suitable
documentation or identification, the agency may require a signed
notarized statement asserting the identity of the individual and
stipulating that the individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretenses is punishable by a fine of up to $5,000.
(d) In the event a requester wishes to be accompanied by another
person while reviewing his or her records, the agency may require a
written statement authorizing discussion of his or her records in the
presence of the accompanying representative or other persons.
Sec. 308.16 Amendment of records and appeals with respect thereto.
(a) In the event an individual desires to request an amendment of
his or her record, he or she may do so by submitting such written
request to the Director, Administrative Services, Peace Corps, 806
Connecticut Avenue, NW., Washington, DC 20526. The Director,
Administrative Services, shall provide assistance in preparing any
amendment upon request and a written acknowledgment of receipt of such
request within 10 working days after the receipt thereof from the
individual who requested the amendment. Such acknowledgment may, if
necessary, request any additional information needed to make a
determination with respect to such request. If the agency decides to
comply with the request within the 10 day period, no written
acknowledgment is necessary: Provided, however, That a certification of
the change shall be provided to such individual within such period.
(b) Promptly after acknowledgment of the receipt of a request for an
amendment the agency shall take one of the following actions:
(1) Make any corrections of any portion of the record which the
individual believes is not accurate, relevant, timely or complete.
(2) Inform the individual of its refusal to amend the record in
accord with the request together with the reason for such refusal and
the procedures established for requesting review of such refusal by the
head of the agency or his or her designee. Such notice shall include the
name and business address of the reviewing official.
(3) Refer the request to the agency that has control of and
maintains the record in those instances where the record requested
remains the property of the controlling agency and not of the Peace
Corps.
(c) In reviewing a request to amend the record the agency shall
assess the accuracy, relevance, timeliness and completeness of the
record with due and appropriate regard for fairness to the individual
about whom the record is maintained. In making such determination, the
agency shall consult criteria for determining record quality published
in pertinent chapters of the Federal Personnel Manual and to the extent
possible shall accord therewith.
[[Page 31]]
(d) In the event the agency agrees with the individual's request to
amend such record it shall:
(1) Advise the individual in writing,
(2) Correct the record accordingly, and
(3) Advise all previous recipients of a record which was corrected
of the correction and its substance.
(e) In the event the agency, after an initial review of the request
to amend a record, disagrees with all or a portion of it, the agency
shall:
(1) Advise the individual of its refusal and the reasons therefore,
(2) Inform the individual that he or she may request further review
in accord with the provisions of these regulations, and
(3) Specify The name and address of the person to whom the request
should be directed.
(f) In the event an individual requester disagrees with the initial
agency determination, he or she may appeal such determination to the
Director of the Peace Corps or his or her designee. Such request for
review must be made within 30 days after receipt by the requester of the
initial refusal to amend.
(g) If after review the Director or designee refuses to amend the
record as requested he or she shall advise the individual requester of
such refusal and the reasons for same; of his or her right to file a
concise statement in the record of the reasons for disagreeing with the
decision of the agency; of the procedures for filing a statement of
disagreement and of the fact that such statement so filed will be made
available to anyone to whom the record is subsequently disclosed
together with a brief statement of the agency summarizing its reasons
for refusal, if the agency decides to place such brief statement in the
record. The agency shall have the authority to limit the length of any
statement to be filed, such limit to depend upon the record involved.
The agency shall also inform such individual that prior recipients of
the disputed record will be provided a copy of both statements of the
dispute to the extent that the accounting of disclosures has been
maintained and of the individual's right to seek judicial review of the
agency's refusal to amend the record.
(h) If after review the official determines that the record should
be amended in accordance with the individual's request, the agency shall
proceed as provided above in the event a request is granted upon initial
demand.
(i) Final agency determination of an individual's request for a
review shall be concluded with 30 working days from the date of receipt
of the review request: Provided, however, That the Director or designee
may determine that fair and equitable review cannot be made within that
time. If such circumstances occur, the individual shall be notified in
writing of the additional time required and of the approximate date on
which determination of the review is expected to be completed.
Sec. 308.17 Denial of access and appeals with respect thereto.
In the event that the agency finds it necessary to deny any
individual access to a record about such individual pursuant to
provisions of the Privacy Act or of these regulations, a response to the
original request shall be made in writing within ten working days after
the date of such initial request. The denial shall specify the reasons
for such refusal or denial and advise the individual of the reasons
therefore, and of his or her right to an appeal within the agency and/or
judicial review under the provisions of the Act.
(a) In the event an individual desires to appeal any denial of
access, he or she may do so in writing by addressing such appeal to the
attention of the Director, Peace Corps, or designee identified in such
denial. Such appeal should be addressed to Director, Peace Corps, c/o
Office of Administrative Services, Room P-314, 806 Connecticut Avenue,
NW., Washington, DC 20526.
(b) The Director, or designee, shall review a request from a denial
of access and shall make a determination with respect to such appeal
within 30 days after receipt thereof. Notice of such determination shall
be provided to the individual making the request in writing. If such
appeal is denied in whole or in part, such notice shall include
notification of the right of the person making such request to have
judicial review of the denial as provided in the Act.
[[Page 32]]
Sec. 308.18 Fees.
No fees shall be charged for search time or for any other time
expended by the agency to produce a record. Copies of records may be
charged for at the rate of 10 cents per page provided that one copy of
any record shall be provided free of charge.
PART 309_DEBT COLLECTION--Table of Contents
Subpart A_General Provisions
Sec.
309.1 General purpose.
309.2 Scope.
309.3 Definitions.
309.4 Other procedures or actions.
309.5 Interest, penalties, and administrative costs.
309.6 Collection in installments.
309.7 Designation.
Subpart B_Collection Actions
309.8 Application.
309.9 Notice--written demand for payment.
309.10 Review requirements.
309.11 Collection.
Subpart C_Salary Offset
309.12 Purpose.
309.13 Scope.
309.14 Coordinating offset with another Federal agency.
309.15 Notice requirements before offset.
309.16 Review.
309.17 Procedures for salary offset.
309.18 Voluntary repayment agreements as an alternative to salary
offset.
309.19 Waiver.
309.20 Compromise.
309.21 Suspension of collection.
309.22 Termination of collection.
309.23 Discharge.
309.24 Bankruptcy.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31
U.S.C. 3720A; 31 CFR part 285; 5 CFR 550, subpart K.
Source: 73 FR 18155, Apr. 3, 2008, unless otherwise noted.
Subpart A_General Provisions
Sec. 309.1 General purpose.
This part prescribes the procedures to be used by the United States
Peace Corps (Peace Corps) in the collection and/or disposal of non-tax
debts owed to Peace Corps and to the United States.
Sec. 309.2 Scope.
(a) Applicability of Federal Claims Collection Standards (FCCS).
Peace Corps hereby adopts the provisions of the Federal Claims
Collections Standards (31 CFR parts 900-904) and, except as set forth in
this part or otherwise provided by law, Peace Corps will conduct
administrative actions to collect claims (including offset, compromise,
suspension, termination, disclosure and referral) in accordance with the
FCCS.
(b) This part is not applicable to:
(1) Peace Corps claims against another Federal agency, any foreign
country or any political subdivision thereof, or any public
international organization.
(2) Debts arising out of acquisitions contracts subject to the
Federal Acquisition Regulation (FAR) shall be determined, collected,
compromised, terminated, or settled in accordance with those regulations
(see 49 CFR part 32).
(3) Claims where the Peace Corps Director (or designee) determines
that the achievement of the purposes of the Peace Corps Act, as amended,
22 U.S.C. 2501 et seq., or any other provision of law administered by
the Peace Corps require a different course of action.
Sec. 309.3 Definitions.
As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
(a) Administrative offset means withholding funds payable by the
United States to, or held by the United States for, a person to satisfy
a debt owed by the person to the United States.
(b) Administrative wage garnishment means the process by which a
Federal agency orders a non-Federal employer to withhold amounts from an
employee's wages to satisfy a debt the employee owes to the United
States.
(c) Compromise means that the creditor agency accepts less than the
full amount of an outstanding debt in full satisfaction of the entire
amount of the debt.
(d) Debt or claim means an amount of money which has been determined
by an appropriate agency official to be owed to the United States from
any
[[Page 33]]
person. As used in this part, the terms debt and claim are synonymous.
(e) Debtor means a person who owes the Federal Government money.
(f) Delinquent debt means any debt, which has not been paid by the
date specified in an agency's initial written notification or in an
applicable agreement, unless other satisfactory payment arrangements
have been made.
(g) Discharge means the release of a debtor from personal liability
for a debt. Further collection action is prohibited.
(h) Disposable pay has the same meaning as that term is defined in 5
CFR Sec. 550.1103.
(i) Employee means a current employee of the Peace Corps or other
Federal agency, including a member of the Armed Forces or Reserve of the
Armed Forces of the United States.
(j) FCCS means the Federal Claims Collection Standards jointly
published by the Department of the Treasury and the Department of
Justice at 31 CFR parts 900-904.
(k) Person means an individual, corporation, partnership,
association, organization, State or local government, or any other type
of entity other than a Federal agency, foreign government, or public
international organization.
(l) Salary offset means the withholding of amounts from the current
pay account of a Federal employee to satisfy a debt owed by that
employee to the United States.
(m) Suspension means the temporary cessation of an active debt
collection pending the occurrence of an anticipated event.
(n) Termination means the cessation of all active debt collection
action for the foreseeable future.
(o) Waiver means the decision to forgo collection of a debt owed to
the United States as permitted or required by law.
Sec. 309.4 Other procedures or actions.
(a) Nothing contained in this regulation is intended to require
Peace Corps to duplicate administrative proceedings required by contract
or other laws or regulations.
(b) Nothing in this regulation is intended to preclude utilization
of informal administrative actions or remedies which may be available.
(c) Nothing contained in this regulation is intended to deter Peace
Corps from demanding the return of specific property or from demanding
the return of the property or the payment of its value.
(d) The failure of Peace Corps to comply with any provision in this
regulation shall not serve as a defense to the debt.
Sec. 309.5 Interest, penalties, and administrative costs.
(a) Except as otherwise provided by statute, contract or excluded in
accordance with FCCS, Peace Corps will assess:
(1) Interest on unpaid debts in accordance with 31 CFR 901.9.
(2) Penalty charges at a rate of 6 percent a year or such other rate
as authorized by law on any portion of a claim that is delinquent for
more than 90 days.
(3) Administrative charges to cover the costs of processing and
handling delinquent debts.
(4) Late payment charges that shall be computed from the date of
mailing or hand delivery of the notice of the claim and interest
requirements.
(b) When a debt is paid in partial or installment payments, amounts
received shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and then to
outstanding principal.
(c) Waiver. Peace Corps will consider waiver of interest, penalties
and/or administrative costs in accordance with the FCCS, 31 CFR
901.9(g).
Sec. 309.6 Collection in installments.
Whenever feasible, and except as required otherwise by law, debts
owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation, should be collected
in one lump sum. This is true whether the debt is being collected under
administrative offset, including salary offset, or by another method,
including voluntary payment. However, if the debtor is financially
unable to pay the indebtedness in one lump sum, payment may be accepted
in regular installments. If Peace Corps
[[Page 34]]
agrees to accept payment in installments, it may require a legally
enforceable written agreement from the debtor that specifies all of the
terms of the arrangement and which contains a provision accelerating the
debt in the event the debtor defaults. The size and frequency of the
payments should bear a reasonable relation to the size of the debt and
ability of the debtor to pay. If possible, the installment payments
should be sufficient in size and frequency to liquidate the Government's
claim within three years.
Sec. 309.7 Designation.
The Chief Financial Officer is delegated authority and designated to
perform all the duties for which the Director is responsible under the
forgoing statutes and joint regulations.
Subpart B_Collection Actions
Sec. 309.8 Application.
(a) Peace Corps shall aggressively collect claims and debts in
accordance with these regulations and applicable law.
(b) Peace Corps will transfer to the Department of the Treasury,
Financial Management Service (FMS) any past due, legally enforceable
non-tax debt that has been delinquent for 180 days or more so that FMS
may take appropriate action to collect the debt or take other
appropriate action in accordance with applicable law and regulation.
(c) Peace Corps may transfer any past due, legally enforceable debt
that has been delinquent for fewer than 180 days to FMS for collection
in accordance with applicable law and regulation. (See 31 CFR part 285.)
Sec. 309.9 Notice--written demand for payment.
(a) Upon determination that a debt is owed to Peace Corps or the
United States, Peace Corps shall promptly hand deliver or send by first-
class mail (to the debtor's most current address in the records of Peace
Corps) at least one written notice (e.g. Bill of Collection or demand
letter) informing the debtor of the consequences of failing to pay or
otherwise resolve a Peace Corps debt, subject to paragraph (c) of this
section. Written demand under this subpart may be preceded by other
appropriate actions under this part and or the FCCS, including but not
limited to actions taken under the procedures applicable to
administrative offset, including salary offset.
(b) The written notice shall inform the debtor of:
(1) The nature and amount of the debt, and the facts giving rise to
the debt;
(2) The date by which payment should be made to avoid the imposition
of interest, penalties, and administrative costs, and the enforced
collection actions described in Sec. 309.5 of this part;
(3) The applicable standards for imposing interest, penalties and
administrative costs to delinquent debts;
(4) Peace Corps' willingness to discuss alternative payment
arrangements and how the debtor may enter into a written agreement to
repay the debt under terms acceptable to Peace Corps;
(5) The name, address, and telephone number of a contact person or
office within Peace Corps;
(6) Peace Corps' intention to enforce collection if the debtor fails
to pay or otherwise resolve the debt, by taking one or more of the
following actions:
(i) Offset from Federal payments otherwise due to the debtor,
including income tax refunds, salary, certain benefit payments,
retirement, vendor payments, travel reimbursement and advances, and
other Federal payments;
(ii) Referral to private collection agency;
(iii) Report to credit bureaus;
(iv) Administrative wage garnishment;
(v) Referral to Department of Justice for litigation action;
(vi) Referral to Financial Management Service of the Department of
the Treasury for collection;
(vii) Other actions as permitted by the FCCS and applicable law.
(7) How the debtor may inspect and copy records related to the debt;
(8) The debtor's opportunity for an internal review of Peace Corps'
determination that the debtor owes a debt or the amount of the debt;
[[Page 35]]
(9) The debtor's right, if any, to request waiver of collection of
certain debts, as applicable;
(10) Requirement that the debtor advise Peace Corps of any
bankruptcy proceeding of the debtor.
(c) Peace Corps may omit from a notice to a debtor one or more of
the provisions contained in paragraphs (b) (6) through (10) of this
section if Peace Corps determines that any provision is not legally
required given the collection remedies to be applied to a particular
debt, or which have already been provided by prior notice, applicable
agreement, or contract.
Sec. 309.10 Review requirements.
(a) For purposes of this section, whenever Peace Corps is required
to afford a debtor a review within the agency, Peace Corps shall provide
the debtor with an opportunity for an internal review of the existence
or the amount of the debt. For offset of current Federal salary under 5
U.S.C. 5514 for certain debts, debtors may also request an outside
hearing. (See subpart C of this part)
(b) Any request for a review must be in writing to the contact
office by the payment due date stated in the initial notice sent under
Sec. 309.9(b) or other applicable provision. The debtor's request shall
state the basis for the dispute and include any relevant documentation
in support.
(1) Peace Corps will provide for an internal review of the debt by
an appropriate agency official. The review may include examination of
documents, internal discussions with relevant officials and discussion
by letter or orally with the debtor, at Peace Corps' discretion.
(2) An oral hearing is not required when, in Peace Corps'
determination, the matter can be decided on the documentary record.
Peace Corps will provide a ``paper hearing'', that is, a determination
based upon a review of the written record unless Peace Corps makes a
determination that a debt involves issues of credibility or veracity, at
which point an oral hearing may be required. Unless otherwise required
by law, such oral hearing shall not be a formal evidentiary hearing.
Sec. 309.11 Collection.
Upon final determination of the existence and amount of a debt,
unless other acceptable payment arrangement have been made or procedures
under a specific statute apply, Peace Corps shall collect the debt by
one or more of the methods described in Sec. 309.9(b) (6) (i-vii) or as
otherwise authorized by law and regulation.
(a) Administrative offset--(1) Payments otherwise due the debtor
from the United States shall be offset from the debt in accordance with
31 CFR 901.3. These may be funds under the control of Peace Corps or
other Federal agencies. Collection may be through centralized offset by
the Financial Management Service (FMS) of the Department of the
Treasury.
(2) Such payments include but are not limited to vendor payments,
salary, retirement, lump sum payments due upon Federal employment
separation, travel reimbursements, tax refunds, loans or other
assistance. Offset of Federal salary payments will be in accordance with
5 U.S.C. 5514.
(3) Before administrative offset is instituted by another Federal
agency or the FMS, Peace Corps shall certify in writing to that entity
that the debt is past due and legally enforceable and that Peace Corps
has complied with all applicable due process and other requirements as
described in this part and other Federal law and regulations.
(b) Any other method authorized by law or regulation.
Subpart C_Salary Offset
Sec. 309.12 Purpose.
This subpart provides Peace Corps' policies and procedures for the
collection by salary offset of a Federal employee's pay to satisfy
certain past due debts owed the United States Government.
Sec. 309.13 Scope.
(a) The provisions of this section apply to collection by salary
offset under 5 U.S.C. 5514 of debts owed to Peace Corps and debts owed
to other
[[Page 36]]
Federal agencies by Peace Corps' employees. Peace Corps will make
reasonable and lawful efforts to administratively collect amounts owed
by employees prior to initiating salary offset action. This section does
not apply to debts where collection by salary offset is explicitly
provided for or prohibited by another statute (e.g. travel advances).
(b) References. The following statutes and regulations apply to
Peace Corps' recovery of debts due the United States by salary offset:
(1) 5 U.S.C. 5514, as amended, governing the installment collection
of debts;
(2) 31 U.S.C. 3716, governing the liquidation of debts by
administrative offset;
(3) 5 CFR part 550, subpart K, setting forth the minimum
requirements for executive agency regulations on salary offset; and
(4) 31 CFR parts 900 through 904, the Federal Claims Collections
Standards.
(c) Nothing in this subpart precludes the compromise, suspension, or
termination of collection actions where appropriate under the standards
implementing the Federal Claims Collection Standards.
Sec. 309.14 Coordinating offset with another Federal agency.
(a) When Peace Corps is owed a debt by an employee of another
agency, the other agency shall not initiate the requested offset until
Peace Corps provides the agency with a written certification that the
debtor owes Peace Corps a debt (including the amount and basis of the
debt and the due date of payment) and that Peace Corps has complied with
these regulations.
(b) When another agency is owed the debt, Peace Corps may use salary
offset against one of its employees who is indebted to another agency,
if requested to do so by that agency. Such request must be accompanied
by a certification that the person owes the debt (including the amount
and basis of the debt and the due date of payment) and that the agency
has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR
part 550, subpart K.
Sec. 309.15 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency first provides the employee with written
notice that he/she owes a debt to the Federal Government at least 30
calendar days before salary offset is to be initiated. When Peace Corps
is the creditor agency this notice of intent to offset an employee's
salary shall be hand-delivered or sent by certified mail to the most
current address that is available. The written notice will state:
(1) That Peace Corps has reviewed the records relating to the claim
and has determined that a debt is owed, its origin and nature, and the
amount of the debt;
(2) The intention of Peace Corps to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
(3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(4) An explanation of the Peace Corps' policy concerning interest,
penalties and administrative costs, including a statement that such
assessments must be made unless excused in accordance with the FCCS (See
Sec. 309.5);
(5) The employee's right to inspect and copy all records of the
Peace Corps pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
(6) The right to a hearing conducted by a hearing official (an
administrative law judge, or alternatively, an individual not under the
supervision or control of the Peace Corps) with respect to the existence
and amount of the debt claimed, or the repayment schedule, so long as a
petition is filed by the employee as prescribed;
(7) If not previously provided, the opportunity (under terms
agreeable to the Peace Corps) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency,
and documented in the creditor agency's files;
[[Page 37]]
(8) The name, address and telephone number of an officer or employee
of the Peace Corps who may be contacted concerning procedures for
requesting a hearing;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a petition for a hearing as
prescribed will stay the commencement of collection proceedings;
(11) The name and address of the office to which the petition should
be sent;
(12) That the Peace Corps will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than 30 calendar days
from the date of delivery of the notice of debt, unless the employee
files a timely petition for a hearing;
(13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 calendar
days after the filing of the petition requesting the hearing, unless the
employee requests and the hearing official grants a delay in the
proceedings;
(14) That any knowingly false or frivolous statements,
representations or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under the Peace Corps Act or
the Foreign Service Act, Peace Corps regulations, or any other
applicable statutes or regulations;
(ii) Penalties under the False Claims Act, Sec. Sec. 3729-3731 of
title 31, United States Code, or any other applicable statutory
authority; and
(iii) Criminal penalties under 18 U.S.C. sections 286, 287, 1001,
and 1002 or any other applicable authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee; and
(17) That proceedings with respect to such debt are governed by 5
U.S.C. 5514.
(b) Peace Corps is not required to provide prior notice to an
employee when the following adjustments are made by Peace Corps to a
Peace Corps employee's pay:
(1) Any adjustment to pay arising out of an employee's election of
coverage or a change in coverage under a Federal benefits program
requiring periodic deductions from pay if the amount to be recovered was
accumulated over four pay periods or less;
(2) A routine adjustment of pay that is made to correct an
overpayment of pay attributable to clerical or administrative errors or
delays in processing pay documents, if the overpayment occurred within
the four pay periods preceding the adjustment, and, at the time of such
adjustment, or as soon thereafter as practical, the individual is
provided written notice of the nature and the amount of the adjustment
and point of contact for contesting the adjustment; or
(3) Any adjustment to collect a debt of $50 or less, if, at the time
of such adjustment, or as soon thereafter as practical, the individual
is provided written notice of the nature of the amount of the adjustment
and a point of contact for contesting the adjustment.
Sec. 309.16 Review.
(a) Request for outside hearing. Except as provided in paragraph (b)
of this section, an employee who desires an outside hearing concerning
the existence or amount of the debt or the proposed offset schedule must
send a request to the office designated in the notice of intent. See
Sec. 309.15(a)(8). The request must be received by the designated
office not later than 20 calendar days after the date of delivery of the
notice as provided in Sec. 309.15(a). The request must be signed by the
employee and should identify and explain with reasonable specificity and
brevity the facts, evidence and witnesses which the employee believes
support his or her position. If the employee objects to the percentage
of disposable pay to be deducted from each check, the request should
state the objection and the reasons for it. The employee must also
[[Page 38]]
specify whether an oral hearing or a review of the documentary evidence
is requested. If an oral hearing is desired, the request should explain
why the matter cannot be resolved by review of the documentary evidence
alone.
(b) Failure to submit timely. (1) If the employee files a petition
for a review after the expiration of the 20 calendar day period provided
for in paragraph (a) of this section, the designated office may accept
the request if the employee can show that the delay was the result of
circumstances beyond his or her control, or because of a failure to
receive the notice of the filing deadline (unless the employee has
actual knowledge of the filing deadline).
(2) An employee waives the right to a review, and will have his or
her disposable pay offset in accordance with Peace Corps' offset
schedule, if the employee fails to file a request for a hearing unless
such failure is excused as provided in paragraph (b)(1) of this section.
(3) If the employee fails to appear at an oral hearing of which he
or she was notified, unless the hearing official determines failure to
appear was due to circumstances beyond the employee's control, his or
her appeal will be decided on the basis of the documents then available
to the hearing official.
(c) Representation at the hearing. The creditor agency may be
represented by a representative of its choice. The employee may
represent himself or herself or may be represented by an individual of
his or her choice and at his or her expense.
(d) Review of Peace Corps records related to the debt. (1) An
employee who intends to inspect or copy creditor agency records related
to the debt in accordance with Sec. 309.15(a)(5), must send a letter to
the official designated in the notice of intent to offset stating his or
her intention. The letter must be sent within 20 calendar days after
receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, copies of such records
shall be sent to the employee.
(e) Oral Hearing. (1) If an employee timely files a request for an
oral hearing under Sec. 309.16(a), the matter will be conducted by a
hearing official not under the supervision or control of Peace Corps.
(2) Procedure. (i) After the employee requests a hearing, the
hearing official shall notify the employee of the form of the hearing to
be provided. If the hearing will be oral, notice shall set forth the
date, time and location of the hearing. If the hearing will be paper,
the employee shall be notified that he or she should submit arguments in
writing to the hearing official by a specified date after which the
record shall be closed. This date shall give the employee reasonable
time to submit documentation.
(ii) An employee who requests an oral hearing shall be provided an
oral hearing if the hearing official determines that the matter cannot
be resolved by review of documentary evidence alone (e.g. when an issue
of credibility or veracity is involved). The hearing is not an
adversarial adjudication, and need not take the form of an evidentiary
hearing.
(iii) If the hearing official determines that an oral hearing is not
necessary, he or she will make a decision based upon a review of the
available written record.
(iv) The hearing official must maintain a summary record of any
hearing provided by this subpart. Witnesses who provide testimony will
do so under oath or affirmation.
(3) Decision. The written decision shall include:
(i) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(ii) The hearing official's findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, or the date salary
offset will commence, if applicable.
(4) Failure to appear. In the absence of good cause shown (e.g.
excused illness), an employee who fails to appear at a
[[Page 39]]
hearing shall be deemed, for the purpose of this subpart, to admit the
existence and amount of the debt as described in the notice of intent.
The hearing official shall schedule a new hearing upon the request of
the creditor agency representative when good cause is shown.
(5) A hearing official's decision is considered to be an official
certification regarding the existence and amount of the debt for
purposes of executing salary offset under 5 U.S.C. 5514 only. It does
not supersede the finding by Peace Corps that a debt is owed and does
not affect the Government's ability to recoup the debt through
alternative collection methods under other appropriate methods.
Sec. 309.17 Procedures for salary offset.
Unless otherwise provided by statute or contract, the following
procedures apply to salary offset:
(a) Method. Salary offset will be made by deduction at one or more
officially established pay intervals from the current pay account of the
employee without his or her consent.
(b) Source. The source of salary offset is current disposable pay.
(c) Types of collection--(1) Lump sum payment. Ordinarily debts will
be collected by salary offset in one lump sum if possible. However, if
the amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, the collection by salary offset
must be made in installment deductions.
(2) Installment deductions. (i) The size of installment deductions
must bear a reasonable relation to the size of the debt and the
employee's ability to pay. If possible, the size of the deduction will
be that necessary to liquidate the debt in no more than 1 year. However,
the amount deducted for any period must not exceed 15 percent of the
disposable pay from which the deduction is made, except as provided by
other regulations or unless the employee has agreed in writing to
greater amount.
(ii) Installment payments of less than $25 per pay period will be
accepted only in the most unusual circumstances.
(iii) Installment deductions will be made over a period of not
greater than the anticipated period of employment.
Sec. 309.18 Voluntary repayment agreements as an alternative to
salary offset.
(a) In response to a notice of intent, an employee may propose a
written agreement to repay the debt as an alternative to salary offset.
Any employee who wishes to repay a debt without salary offset shall
submit in writing a proposed agreement to repay the debt. The proposal
shall admit the existence of the debt and set forth a proposed repayment
schedule. Any proposal under this paragraph must be received by the
official designated in that notice within 20 calendar days after receipt
of the notice of intent.
(b) When the Peace Corps is the creditor agency, in response to a
timely proposal by the debtor the agency will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the agency's discretion to accept a repayment
agreement instead of proceeding by offset.
(c) If the Peace Corps decides that the proposed repayment agreement
is unacceptable, the employee will have 15 calendar days from the date
he or she received notice of the decision to file a petition for a
review.
(d) If the Peace Corps decides that the proposed repayment agreement
is acceptable, the alternative arrangement must be in writing and signed
by both the employee and a designated agency official.
Sec. 309.19 Waiver.
(a) Under certain circumstances, employees may have a statutory
right to request a waiver of indebtedness. When an employee makes a
request under a statutory right, further collection will be stayed
pending an administrative determination on the request.
(b) Waiver of indebtedness is an equitable remedy and as such must
be based on an assessment of the facts involved in the individual case
under consideration. The burden is on the employee to demonstrate that
the applicable waiver standard has been met.
[[Page 40]]
Sec. 309.20 Compromise.
Peace Corps may attempt to effect compromise in accordance with the
standards set forth in the FCCS (31 CFR part 902).
Sec. 309.21 Suspension of collection.
Suspension of collection action shall be made in accordance with the
standards set forth in the FCCS (31 CFR 903.1-903.2).
Sec. 309.22 Termination of collection.
Termination of collection action shall be made in accordance with
the standards set forth in the FCCS (31 CFR 903.1 and 903.3-903.4).
Sec. 309.23 Discharge.
Once a debt has been closed out for accounting purposes and
collection has been terminated, the debt is discharged. Peace Corps will
report discharged debt as income to the debtor to the Internal Revenue
Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1.
Sec. 309.24 Bankruptcy.
Peace Corps generally terminates collection activity on debts that
have been discharged in bankruptcy unless otherwise provided for by
bankruptcy law. The CFO will seek legal advice by the General Counsel's
office if there is the belief that any claims or offset may have
survived the discharge of a debtor.
PART 311_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
311.100 Conditions on use of funds.
311.105 Definitions.
311.110 Certification and disclosure.
Subpart B_Activities by Own Employees
311.200 Agency and legislative liaison.
311.205 Professional and technical services.
311.210 Reporting.
Subpart C_Activities by Other Than Own Employees
311.300 Professional and technical services.
Subpart D_Penalties and Enforcement
311.400 Penalties.
311.405 Penalty procedures.
311.410 Enforcement.
Subpart E_Exemptions
311.500 Secretary of Defense.
Subpart F_Agency Reports
311.600 Semi-annual compilation.
311.605 Inspector General report.
Appendix A to Part 311--Certification Regarding Lobbying
Appendix B to Part 311--Disclosure Form To Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 22
U.S.C. 2503.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Source: 55 FR 6737, 6749, Feb. 26, 1990, unless otherwise noted.
Subpart A_General
Sec. 311.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has
[[Page 41]]
agreed to make any payment using nonappropriated funds (to include
profits from any covered Federal action), which would be prohibited
under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 311.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
[[Page 42]]
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 311.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event
[[Page 43]]
that requires disclosure or that materially affects the accuracy of the
information contained in any disclosure form previously filed by such
person under paragraphs (a) or (b) of this section. An event that
materially affects the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement, shall file a certification, and a
disclosure form, if required, to the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 311.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and
[[Page 44]]
legislative liaison activities are allowable only where they are prior
to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 311.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 311.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other Than Own Employees
Sec. 311.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
311.100 (a), does not apply in the case of any reasonable
[[Page 45]]
payment to a person, other than an officer or employee of a person
requesting or receiving a covered Federal action, if the payment is for
professional or technical services rendered directly in the preparation,
submission, or negotiation of any bid, proposal, or application for that
Federal contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 311.110 (a) and (b)
regarding filing a disclosure form by each person, if required, shall
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
(c) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
or a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 311.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to
[[Page 46]]
continue in business, any prior violations by such person, the degree of
culpability of such person, the ability of the person to pay the
penalty, and such other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 311.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 311.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 311.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 311.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no
[[Page 47]]
later than with the compilations due on May 31, 1991. OMB shall provide
detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 311.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Sec. Appendix A to Part 311--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
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Sec. Appendix B to Part 311--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.000
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[GRAPHIC] [TIFF OMITTED] TC13OC91.001
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[GRAPHIC] [TIFF OMITTED] TC13OC91.002
[[Page 51]]
PART 312_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)--Table of Contents
Subpart A_Purpose and Coverage
Sec.
312.100 What does this part do?
312.105 Does this part apply to me?
312.110 Are any of my federal assistance awards exempt from this part?
312.115 Does this part affect the federal contracts that I receive?
Subpart B_Requirements for Recipients Other Than Individuals
312.200 What must I do to comply with this part?
312.205 What must I include in my drug-free workplace statement?
312.210 To whom must I distribute my drug-free workplace statement?
312.215 What must I include in my drug-free awareness program?
312.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
312.225 What actions must I take concerning employees who are convicted
of drug violations in the workplace?
312.230 How and when must I identify workplaces?
Subpart C_Requirements for Recipients Who Are Individuals
312.300 What must I do to comply with this part if I am an individual
recipient?
312.301 [Reserved]
Subpart D_Responsibilities of Peace Corps Awarding Officials
312.400 What are my responsibilities as a Peace Corps awarding official?
Subpart E_Violations of This Part and Consequences
312.500 How are violations of this part determined for recipients other
than individuals?
312.505 How are violations of this part determined for recipients who
are individuals?
312.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
312.515 Are there any exceptions to those actions?
Subpart F_Definitions
312.605 Award.
312.610 Controlled substance.
312.615 Conviction.
312.620 Cooperative agreement.
312.625 Criminal drug statute.
312.630 Debarment.
312.635 Drug-free workplace.
312.640 Employee.
312.645 Federal agency or agency.
312.650 Grant.
312.655 Individual.
312.660 Recipient.
312.665 State.
312.670 Suspension.
Authority: 22 U.S.C. 2503 (b); 41 U.S.C. 701 et seq.
Source: 68 FR 66588, Nov. 26, 2003, unless otherwise noted.
Subpart A_Purpose and Coverage
Sec. 312.100 What does this part do?
This part carries out the portion of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also
applies the provisions of the Act to cooperative agreements and other
financial assistance awards, as a matter of Federal Government policy.
Sec. 312.105 Does this part apply to me?
(a) Portions of this part apply to you if you are either--
(1) A recipient of an assistance award from the Peace Corps; or
(2) A(n) Peace Corps awarding official. (See definitions of award
and recipient in Sec. Sec. 312.605 and 312.660, respectively.)
(b) The following table shows the subparts that apply to you:
------------------------------------------------------------------------
If you are . . . see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an A, B and E.
individual.
(2) A recipient who is an individual... A, C and E.
(3) A(n) Peace Corps awarding official. A, D and E.
------------------------------------------------------------------------
[[Page 52]]
Sec. 312.110 Are any of my Federal assistance awards exempt from this
part?
This part does not apply to any award that the Peace Corps Director
or designee determines that the application of this part would be
inconsistent with the international obligations of the United States or
the laws or regulations of a foreign government.
Sec. 312.115 Does this part affect the Federal contracts that I receive?
It will affect future contract awards indirectly if you are debarred
or suspended for a violation of the requirements of this part, as
described in Sec. 312. 510(c). However, this part does not apply
directly to procurement contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to Federal procurement contracts is
carried out through the Federal Acquisition Regulation in chapter 1 of
Title 48 of the Code of Federal Regulations (the drug-free workplace
coverage currently is in 48 CFR part 23, subpart 23.5).
Subpart B_Requirements for Recipients Other Than Individuals
Sec. 312.200 What must I do to comply with this part?
There are two general requirements if you are a recipient other than
an individual.
(a) First, you must make a good faith effort, on a continuing basis,
to maintain a drug-free workplace. You must agree to do so as a
condition for receiving any award covered by this part. The specific
measures that you must take in this regard are described in more detail
in subsequent sections of this subpart. Briefly, those measures are to--
(1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 312.205
through 312.220); and
(2) Take actions concerning employees who are convicted of violating
drug statutes in the workplace (see Sec. 312.225).
(b) Second, you must identify all known workplaces under your
Federal awards (see Sec. 312.230).
Sec. 312.205 What must I include in my drug-free workplace statement?
You must publish a statement that--
(a) Tells your employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance
is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for
violating that prohibition; and
(c) Lets each employee know that, as a condition of employment under
any award, he or she:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if he or she is convicted for a
violation of a criminal drug statute occurring in the workplace and must
do so no more than five calendar days after the conviction.
Sec. 312.210 To whom must I distribute my drug-free workplace statement?
You must require that a copy of the statement described in Sec.
312.205 be given to each employee who will be engaged in the performance
of any Federal award.
Sec. 312.215 What must I include in my drug-free awareness program?
You must establish an ongoing drug-free awareness program to inform
employees about--
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(d) The penalties that you may impose upon them for drug abuse
violations occurring in the workplace.
Sec. 312.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy
statement as described in Sec. 312.205 and an ongoing awareness program
as described in Sec. 312.215, you must publish the statement and
establish the program by the time given in the following table:
[[Page 53]]
------------------------------------------------------------------------
If . . . then you . . .
------------------------------------------------------------------------
(a) The performance period of the award must have the policy statement
is less than 30 days. and program in place as soon
as possible, but before the
date on which performance is
expected to be completed.
(b) The performance period of the award must have the policy statement
is 30 days or more. and program in place within 30
days after award.
(c) You believe there are extraordinary may ask the Peace Corps
circumstances that will require more awarding official to give you
than 30 days for you to publish the more time to do so. The amount
policy statement and establish the of additional time, if any, to
awareness program. be given is at the discretion
of the awarding official.
------------------------------------------------------------------------
Sec. 312.225 What actions must I take concerning employees who are
convicted of drug violations in the workplace?
There are two actions you must take if an employee is convicted of a
drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is
engaged in the performance of an award informs you about a conviction,
as required by Sec. 312.205(c)(2), or you otherwise learn of the
conviction. Your notification to the Federal agencies must--
(1) Be in writing;
(2) Include the employee's position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the
conviction; and
(5) Be sent to every Federal agency on whose award the convicted
employee was working. It must be sent to every awarding official or his
or her official designee, unless the Federal agency has specified a
central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee's
conviction, you must either--
(1) Take appropriate personnel action against the employee, up to
and including termination, consistent with the requirements of the
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for these purposes
by a Federal, State or local health, law enforcement, or other
appropriate agency.
Sec. 312.230 How and when must I identify workplaces?
(a) You must identify all known workplaces under each Peace Corps
award. A failure to do so is a violation of your drug-free workplace
requirements. You may identify the workplaces--
(1) To the Peace Corps official that is making the award, either at
the time of application or upon award; or
(2) In documents that you keep on file in your offices during the
performance of the award, in which case you must make the information
available for inspection upon request by Peace Corps officials or their
designated representatives.
(b) Your workplace identification for an award must include the
actual address of buildings (or parts of buildings) or other sites where
work under the award takes place. Categorical descriptions may be used
(e.g., all vehicles of a mass transit authority or State highway
department while in operation, State employees in each local
unemployment office, performers in concert halls or radio studios).
(c) If you identified workplaces to the Peace Corps awarding
official at the time of application or award, as described in paragraph
(a)(1) of this section, and any workplace that you identified changes
during the performance of the award, you must inform the Peace Corps
awarding official.
Subpart C_Requirements for Recipients Who Are Individuals
Sec. 312.300 What must I do to comply with this part if I am an
individual recipient?
As a condition of receiving a(n) Peace Corps award, if you are an
individual recipient, you must agree that--
(a) You will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity related to the award; and
(b) If you are convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any
[[Page 54]]
award activity, you will report the conviction:
(1) In writing.
(2) Within 10 calendar days of the conviction.
(3) To the Peace Corps awarding official or other designee for each
award that you currently have, unless Sec. 312.301 or the award
document designates a central point for the receipt of the notices. When
notice is made to a central point, it must include the identification
number(s) of each affected award.
Sec. 312.301 [Reserved]
Subpart D_Responsibilities of Peace Corps Awarding Officials
Sec. 312.400 What are my responsibilities as a(n) Peace Corps
awarding official?
As a(n) Peace Corps awarding official, you must obtain each
recipient's agreement, as a condition of the award, to comply with the
requirements in--
(a) Subpart B of this part, if the recipient is not an individual;
or
(b) Subpart C of this part, if the recipient is an individual.
Subpart E_Violations of this Part and Consequences
Sec. 312.500 How are violations of this part determined for
recipients other than individuals?
A recipient other than an individual is in violation of the
requirements of this part if the Peace Corps Director or designee
determines, in writing, that--
(a) The recipient has violated the requirements of subpart B of this
part; or
(b) The number of convictions of the recipient's employees for
violating criminal drug statutes in the workplace is large enough to
indicate that the recipient has failed to make a good faith effort to
provide a drug-free workplace.
Sec. 312.505 How are violations of this part determined for
recipients who are individuals?
An individual recipient is in violation of the requirements of this
part if the Peace Corps Director or designee determines, in writing,
that--
(a) The recipient has violated the requirements of subpart C of this
part; or
(b) The recipient is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any award activity.
Sec. 312.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
If a recipient is determined to have violated this part, as
described in Sec. 312.500 or Sec. 312.505, the Peace Corps may take
one or more of the following actions--
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
(c) Suspension or debarment of the recipient under 22 CFR part 310,
for a period not to exceed five years.
Sec. 312.515 Are there any exceptions to those actions?
The Peace Corps Director may waive with respect to a particular
award, in writing, a suspension of payments under an award, suspension
or termination of an award, or suspension or debarment of a recipient if
the Peace Corps Director determines that such a waiver would be in the
public interest. This exception authority cannot be delegated to any
other official.
Subpart F_Definitions
Sec. 312.605 Award.
Award means an award of financial assistance by the Peace Corps or
other Federal agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative agreement, in the form of money
or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or
not the grant is exempted from coverage under the Governmentwide rule
[Agency-specific CFR citation] that implements OMB Circular A-102 (for
availability, see 5 CFR 1310.3) and specifies uniform administrative
requirements.
(b) The term award does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
[[Page 55]]
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans' benefits to individuals (i.e., any benefit to
veterans, their families, or survivors by virtue of the service of a
veteran in the Armed Forces of the United States).
(c) Notwithstanding paragraph (a)(2) of this section, this paragraph
is not applicable for the Peace Corps.
Sec. 312.610 Controlled substance.
Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15.
Sec. 312.615 Conviction.
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes.
Sec. 312.620 Cooperative agreement.
Cooperative agreement means an award of financial assistance that,
consistent with 31 U.S.C. 6305, is used to enter into the same kind of
relationship as a grant (see definition of grant in Sec. 312.650),
except that substantial involvement is expected between the Federal
agency and the recipient when carrying out the activity contemplated by
the award. The term does not include cooperative research and
development agreements as defined in 15 U.S.C. 3710a.
Sec. 312.625 Criminal drug statute.
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance.
Sec. 312.630 Debarment.
Debarment means an action taken by a Federal agency to prohibit a
recipient from participating in Federal Government procurement contracts
and covered nonprocurement transactions. A recipient so prohibited is
debarred, in accordance with the Federal Acquisition Regulation for
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule,
Government-wide Debarment and Suspension (Nonprocurement), that
implements Executive Order 12549 and Executive Order 12689.
Sec. 312.635 Drug-free workplace.
Drug-free workplace means a site for the performance of work done in
connection with a specific award at which employees of the recipient are
prohibited from engaging in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance.
Sec. 312.640 Employee.
(a) Employee means the employee of a recipient directly engaged in
the performance of work under the award, including--
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or
involvement in the performance of work under the award is insignificant
to the performance of the award; and
(3) Temporary personnel and consultants who are directly engaged in
the performance of work under the award and who are on the recipient's
payroll.
(b) This definition does not include workers not on the payroll of
the recipient (e.g., volunteers, even if used to meet a matching
requirement; consultants or independent contractors not on the payroll;
or employees of subrecipients or subcontractors in covered workplaces).
Sec. 312.645 Federal agency or agency.
Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency.
Sec. 312.650 Grant.
Grant means an award of financial assistance that, consistent with
31 U.S.C. 6304, is used to enter into a relationship--
[[Page 56]]
(a) The principal purpose of which is to transfer a thing of value
to the recipient to carry out a public purpose of support or stimulation
authorized by a law of the United States, rather than to acquire
property or services for the Federal Government's direct benefit or use;
and
(b) In which substantial involvement is not expected between the
Federal agency and the recipient when carrying out the activity
contemplated by the award.
Sec. 312.655 Individual.
Individual means a natural person.
Sec. 312.660 Recipient.
Recipient means any individual, corporation, partnership,
association, unit of government (except a Federal agency) or legal
entity, however organized, that receives an award directly from a
Federal agency.
Sec. 312.665 State.
State means any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, or any territory or
possession of the United States.
Sec. 312.670 Suspension.
Suspension means an action taken by a Federal agency that
immediately prohibits a recipient from participating in Federal
Government procurement contracts and covered nonprocurement transactions
for a temporary period, pending completion of an investigation and any
judicial or administrative proceedings that may ensue. A recipient so
prohibited is suspended, in accordance with the Federal Acquisition
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and
the common rule, Government-wide Debarment and Suspension
(Nonprocurement), that implements Executive Order 12549 and Executive
Order 12689. Suspension of a recipient is a distinct and separate action
from suspension of an award or suspension of payments under an award.
PARTS 313 399 [RESERVED]
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CHAPTER IV--INTERNATIONAL JOINT COMMISSION, UNITED STATES AND CANADA
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PART 400 [RESERVED]
PART 401_RULES OF PROCEDURE--Table of Contents
Subpart A_General
Sec.
401.1 Definitions.
401.2 Chairmen.
401.3 Permanent offices.
401.4 Duties of secretaries.
401.5 Meetings.
401.6 Service of documents.
401.7 Conduct of hearings.
401.8 Decision by the whole Commission.
401.9 Suspension or amendment of rules.
401.10 General rule.
401.11 Availability of records.
Subpart B_Applications
401.12 Presentation to Commission.
401.13 Copies required.
401.14 Authorization by Government.
401.15 Notice of publication.
401.16 Statement in response
401.17 Statement in reply.
401.18 Supplemental or amended applications and statements.
401.19 Reducing or extending time and dispensing with statements.
401.20 Interested persons and counsel.
401.21 Consultation.
401.22 Attendance of witnesses and production of documents.
401.23 Hearings.
401.24 Expenses of proceedings.
401.25 Government brief regarding navigable waters.
Subpart C_References
401.26 Presentation to Commission.
401.27 Notice and publication.
401.28 Advisory boards.
401.29 Hearings.
401.30 Proceedings under Article X.
Authority: Art. XII, 36 Stat. 2453.
Source: 30 FR 3379, Mar. 13, 1965, unless otherwise noted.
Subpart A_General
Sec. 401.1 Definitions.
(a) In the construction of the regulations in this part, unless the
context otherwise requires, words importing the singular number shall
include the plural and words importing the plural number shall include
the singular; and,
(b) Applicant means the Government or person on whose behalf on
application is presented to the Commission in accordance with Sec.
401.12;
(c) Government means the Government of Canada or the Government of
the United States of America;
(d) Person includes Province, State, department or agency of a
Province or State, municipality, individual, partnership, corporation
and association, but does not include the Government of Canada or the
Government of the United States of America;
(e) Oath includes affirmation;
(f) Reference means the document by which a question or matter of
difference is referred to the Commission pursuant to Article IX of the
Treaty;
(g) The Treaty means the Treaty between the United States of America
and His Majesty the King, dated the 11th day of January 1909;
(h) Canadian section consists of the commissioners appointed by Her
Majesty on the recommendation of the Governor in Council of Canada;
(i) United States section consists of the Commissioners appointed by
the President of the United States.
Sec. 401.2 Chairmen.
(a) The commissioners of the United States section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the United States Section of the International Joint
Commission, and he shall act as chairman at all meetings of the
Commission held in the United States and in respect to all matters
required to be done in the United States by the chairman of the
Commission.
(b) The commissioners of the Canadian section of the Commission
shall appoint one of their number as chairman, to be known as the
Chairman of the Canadian Section of the International Joint Commission,
and he shall act as chairman at all meetings of the Commission held in
Canada and in respect to all matters required to be done in Canada by
the chairman of the Commission.
(c) In case it shall be impracticable for the chairman of either
section to act in any matter, the commissioner of such section who is
senior in order of appointment shall act in his stead.
Sec. 401.3 Permanent offices.
The permanent offices of the Commission shall be at Washington, in
the
[[Page 60]]
District of Columbia, and at Ottawa, in the Province of Ontario, and,
subject to the directions of the respective chairmen acting for their
respective sections, the secretaries of the United States and Canadian
sections of the Commission shall have full charge and control of said
offices, respectively.
Sec. 401.4 Duties of secretaries.
(a) The secretaries shall act as joint secretaries at all meetings
and hearings of the Commission. The secretary of the section of the
Commission of the country in which a meeting or hearing is held shall
prepare a record thereof and each secretary shall preserve an authentic
copy of the same in the permanent offices of the Commission.
(b) Each secretary shall receive and file all applications,
references and other papers properly presented to the Commission in any
proceeding instituted before it and shall number in numerical order all
such applications and references; the number given to an application or
reference shall be the primary file number for all papers relating to
such application or reference.
(c) Each secretary shall forward to the other for filing in the
office of the other copies of all official letters, documents, records
or other papers received by him or filed in his office, pertaining to
any proceeding before the Commission, to the end that there shall be on
file in each office either the original or a copy of all official
letters and other papers, relating to the said proceeding.
(d) Each secretary shall also forward to the other for filing in the
office of the other copies of any letters, documents or other papers
received by him or filed in his office which are deemed by him to be of
interest to the Commission.
Sec. 401.5 Meetings.
(a) Subject at all times to special call or direction by the two
Governments, meetings of the Commission shall be held at such times and
places in the United States and Canada as the Commission or the Chairman
may determine and in any event shall be held each year at Washington in
April and at Ottawa in October, beginning ordinarily on the first
Tuesday of the said months.
(b) If the Commission determines that a meeting shall be open to the
public, it shall give such advance notice to this effect as it considers
appropriate in the circumstances.
Sec. 401.6 Service of documents.
(a) Where the secretary is required by the regulations in this part
to give notice to any person, this shall be done by delivering or
mailing such notice to the person at the address for service that the
said person has furnished to the Commission, or if no such address has
been furnished, at the dwelling house or usual place of abode or usual
place of business of such person.
(b) Where the secretary is required by the regulations in this part
to give notice to a Government, this shall be done by delivering or
mailing such notice to the Secretary of State for External Affairs of
Canada or to the Secretary of State of the United States of America, as
the case may be.
(c) Service of any document pursuant to Sec. 401.22 shall be by
delivering a copy thereof to the person named therein, or by leaving the
same at the dwelling house or usual place of abode or usual place of
business of such person. The person serving the notice or request shall
furnish an affidavit to the secretary stating the time and place of such
service.
Sec. 401.7 Conduct of hearings.
Hearings may be conducted, testimony received and arguments thereon
heard by the whole Commission or by one or more Commissioners from each
section of the Commission, designated for that purpose by the respective
sections or the Chairman thereof.
Sec. 401.8 Decision by the whole Commission.
The whole Commission shall consider and determine any matter or
question which the Treaty or any other treaty or international
agreement, either in terms or by implication, requires or makes it the
duty of the Commission to determine. For the purposes of this section
and Sec. 401.7, ``the whole Commission'' means all of the commissioners
appointed pursuant to Article VII of the Treaty whose terms of office
have not expired and who are not prevented
[[Page 61]]
by serious illness or other circumstances beyond their control from
carrying out their functions as commissioners. In no event shall a
decision be made without the concurrence of at least four commissioners.
Sec. 401.9 Suspension or amendment of rules.
The commission may suspend, repeal, or amend all or any of the rules
of procedure at any time, with the concurrence of at least four
commissioners. Both Governments shall be informed forthwith of any such
action.
Sec. 401.10 General rule.
The Commission may, at any time, adopt any procedure which it deems
expedient and necessary to carry out the true intent and meaning of the
Treaty.
Sec. 401.11 Availability of records.
(a) The following items in the official records of the Commission
shall be available for public information at the permanent offices of
the Commission.
Applications.
References.
Public Notices.
Press Releases.
Statements in Response.
Statements in Reply.
Records of hearings, including exhibits filed.
Brief and formal Statements submitted at hearings or at other times.
(b) Decisions rendered and orders issued by the Commission and
formal opinions of any of the Commissioners with relation thereto, shall
be available similarly for public information after duplicate originals
of the decisions or orders have been transmitted to and filed with the
Governments pursuant to Article XI of the Treaty.
(c) Copies of reports submitted to one or both of the Governments
pursuant to the Treaty shall be available similarly for public
information only with the consent of the Government or Governments to
whom the reports are addressed.
(d) Reports, letters, memoranda and other communications addressed
to the Commissions, by boards or committees created by or at the request
of the Commission, are privileged and shall become available for public
information only in accordance with a decision of the Commission to that
effect.
(e) Except as provided in the preceding paragraphs of this section,
records of deliberations, and documents, letters, memoranda and
communications of every nature and kind in the official records of the
Commission, whether addressed to or by the Commission, commissioners,
secretaries, advisers or any of them, are privileged and shall become
available for public information only in accordance with a decision of
the Commission to that effect.
(f) A copy of any document, report, record or other paper which
under this section is available for public information may be furnished
to any person upon payment of any cost involved in its reproduction.
Subpart B_Applications
Sec. 401.12 Presentation to Commission.
(a) Where one or the other of the Governments on its own initiative
seeks the approval of the commission for the use, obstruction or
diversion of waters with respect to which under Articles III or IV of
the Treaty the approval of the Commission is required, it shall present
to the Commission an application setting forth as fully as may be
necessary for the information of the Commission the facts upon which the
application is based and the nature of the order of approval desired.
(b) Where a person seeks the approval of the Commission for the use,
obstruction or diversion of waters with respect to which under Articles
III or IV of the Treaty the approval of the Commission is required, he
shall prepare an application to the Commission and forward it to the
Government within whose jurisdiction such use, obstruction or diversion
is to be made, with the request that the said application be transmitted
to the Commission. If such Government transmits the application to the
Commission with a request that it take appropriate action thereon, the
same shall be filed by the Commission in the same manner as an
application presented in accordance with paragraph (a) of this section.
Transmittal of the application to the Commission shall not be construed
as authorization
[[Page 62]]
by the Government of the use, obstruction or diversion proposed by the
applicant. All applications by persons shall conform, as to their
contents, to the requirements of paragraph (a) of this section.
(c) Where the Commission has issued an Order approving a particular
use, obstruction or diversion, in which it has specifically retained
jurisdiction over the subject matter of an application and has reserved
the right to make further orders relating thereto, any Government or
person entitled to request the issuance of such further order may
present to the Commission a request, setting forth the facts upon which
it is based and the nature of the further order desired. On receipt of
the request, the Commission shall proceed in accordance with the terms
of the Order in which the Commission specifically retained jurisdiction.
In each case the secretaries shall notify both Governments and invite
their comments before the request is complied with.
Sec. 401.13 Copies required.
(a) Subject to paragraph (c) of this section, two duplicate
originals and fifty copies of the application and of any supplemental
application, statement in response, supplemental statement in response,
statement in reply and supplemental statement in reply shall be
delivered to either secretary. On receipt of such documents, the
secretary shall forthwith send one duplicate original and twenty-five
copies to the other secretary.
(b) Subject to paragraph (c) of this section, two copies of such
drawings, profiles, plans or survey, maps and specifications as may be
necessary to illustrate clearly the matter of the application shall be
delivered to either secretary and he shall send one copy forthwith to
the other secretary.
(c) Notwithstanding paragraphs (a) and (b) of this section, such
additional copies of the documents mentioned therein as may be requested
by the Commission shall be provided forthwith.
Sec. 401.14 Authorization by Government.
(a) Where the use, obstruction or diversion of waters for which the
Commission's approval is sought has been authorized by or on behalf of a
Government or by or on behalf of a State or Province or other competent
authority, two copies of such authorization and of any plans approved
incidental thereto shall accompany the application when it is presented
to the Commission in accordance with Sec. 401.12.
(b) Where such a use, obstruction or diversion of waters is
authorized by or on behalf of a Government or by or on behalf of a State
or Province or other competent authority after an application has been
presented to the Commission in accordance with Sec. 401.12, the
applicant shall deliver forthwith to the Commission two copies of such
authorization and of any plans approved incidental thereto.
Sec. 401.15 Notice of publication.
(a) As soon as practicable after an application is presented or
transmitted in accordance with Sec. 401.12, the secretary of the
section of the Commission appointed by the other Government shall send a
copy of the application to such Government.
(b) Except as otherwise provided pursuant to Sec. 401.19, the
secretaries, as soon as practicable after the application is received,
shall cause a notice to be published in the Canada Gazette and the
Federal Register and once each week for three successive weeks in two
newspapers, published one in each country and circulated in or near the
localities which, in the opinion of the Commission, are most likely to
be affected by the proposed use, obstruction or diversion. Subject to
paragraph (c) of this section, the notice shall state that the
application has been received, the nature and locality of the proposed
use, obstruction or diversion, the time within which any person
interested may present a statement in response to the Commission and
that the Commission will hold a hearing or hearings at which all persons
interested are entitled to be heard with respect thereto.
(c) If the Commission so directs, the notice referred to in
paragraph (b) of this section, appropriately modified, may be combined
with the notice of hearing referred to in Sec. 401.24 and published
accordingly.
[[Page 63]]
Sec. 401.16 Statement in response.
(a) Except as otherwise provided pursuant to Sec. 410.19, a
Government and any interested person, other than the applicant, may
present a statement in response to the Commission within thirty days
after the filing of an application. A statement in response shall set
forth facts and arguments bearing on the subject matter of the
application and tending to oppose or support the application, in whole
or in part. If it is desired that conditional approval be granted, the
statement in response should set forth the particular condition or
conditions desired. An address for service of documents should be
included in the statement in response.
(b) When a statement in response has been filed, the secretaries
shall send a copy forthwith to the applicant and to each Government
except the Government which presented the said statement in response. If
so directed by the Commission, the secretaries shall inform those who
have presented statements in response, of the nature of the total
response.
Sec. 401.17 Statement in reply.
(a) Except as otherwise provided pursuant to Sec. 410.19, the
applicant and, if he is a person, the Government which transmitted the
application on his behalf, one or both may present a statement or
statements in reply to the Commission within thirty days after the time
provided for presenting statements in response. A statement in reply
shall set forth facts and arguments bearing upon the allegations and
arguments contained in the statements in response.
(b) When a statement in reply has been filed, the secretary shall
send a copy forthwith to each Government except the Government which
presented the said statement in reply, and to all persons who presented
statements in response.
Sec. 401.18 Supplemental or amended applications and statements.
(a) If it appears to the Commission that either an application, a
statement in response or a statement in reply is not sufficiently
definite and complete, the Commission may require a more definite and
complete application, statement in response or statement in reply, as
the case may be, to be presented.
(b) Where substantial justice requires it, the Commission with the
concurrence of at least four Commissioners may allow the amendment of
any application, statement in response, statement in reply and any
document or exhibit which has been presented to the Commission.
Sec. 401.19 Reducing or extending time and dispensing with statements.
In any case where the Commission considers that such action would be
in the public interest and not prejudicial to the right of interested
persons to be heard in accordance with Article XII of the Treaty, the
Commission may reduce or extend the time for the presentation of any
paper or the doing of any act required by these rules or may dispense
with the presentation of statements in response and statements in reply.
Sec. 401.20 Interested persons and counsel.
Governments and persons interested in the subject matter of an
application, whether in favor of or opposed to is, are entitled to be
heard in person or by counsel at any hearing thereof held by the
Commission.
Sec. 401.21 Consultation.
The Commission may meet or consult with the applicant, the
Governments and other persons or their counsel at any time regarding the
plan of hearing, the mode of conducting the inquiry, the admitting or
proof of certain facts or for any other purpose.
Sec. 401.22 Attendance of witnesses and production of documents.
(a) Requests for the attendance and examination of witnesses and for
the production and inspection of books, papers and documents may be
issued over the signature of the secretary of the section of the
Commission of the country in which the witnesses reside or the books,
papers or documents may be, when so authorized by the Chairman of that
section.
(b) All applications for subpoena or other process to compel the
attendance
[[Page 64]]
of witnesses or the production of books, papers and documents before the
Commission shall be made to the proper courts of either country, as the
case may be, upon the order of the Commission.
Sec. 401.23 Hearings.
(a) The time and place of the hearing or hearings of an application
shall be fixed by the Chairmen of the two sections.
(b) The secretaries shall forthwith give written notice of the time
and place of the hearing or hearings to the applicant, the Governments
and all persons who have presented statements in response to the
Commission. Except as otherwise provided by the Commission, the
secretaries shall also cause such notice to be published in the Canada
Gazette and the Federal Register and once each week for three successive
weeks in two newspapers, published one in each country and circulated in
or near the localities which, in the opinion of the Commission, are most
likely to be affected by the proposed use, obstruction or diversion of
water.
(c) All hearings shall be open to the public.
(d) The applicant, the Governments and persons interested are
entitled to present oral and documentary evidence and argument that is
relevant and material to any issue that is before the Commission in
connection with the application.
(e) The presiding chairman may require that evidence to be under
oath.
(f) Witnesses may be examined and cross-examined by the
Commissioners and by counsel for the applicant, the Governments and the
Commission. With the consent of the presiding chairman, cousel for a
person other than the applicant may also examine or cross-examine
witnesses.
(g) The Commission may require further evidence to be given and may
require printed briefs to be submitted at or subsequent to the hearing.
(h) The Commissioners shall be free to determine the probative value
of the evidence submitted to it.
(i) A verbatim transcript of the proceedings at the hearing shall be
prepared.
(j) The hearing of the application, when once begun, shall proceed
at the times and places determined by the Chairmen of the two sections
to ensure the greatest practicable continuity and dispatch of
proceedings.
Sec. 401.24 Expenses of proceedings.
(a) The expenses of those participating in any proceeding under this
subpart B shall be borne by the participants.
(b) The Commission, after due notice to the participant or
participants concerned, may require that any unusual cost or expense to
the Commission shall be paid by the person on whose behalf or at whose
request such unusual cost or expense has been or will be incurred.
Sec. 401.25 Government brief regarding navigable waters.
When in the opinion of the Commission it is desirable that a
decision should be rendered which affects navigable waters in a manner
or to an extent different from that contemplated by the application and
plans presented to the Commission, the Commission will, before making a
final decision, submit to the Government presenting or transmitting the
application a draft of the decision, and such Government may transmit to
the Commission a brief or memorandum thereon which will receive due
consideration by the Commission before its decision is made final.
Subpart C_References
Sec. 401.26 Presentation to Commission.
(a) Where a question or matter of difference arising between the two
Governments involving the rights, obligations, or interests of either in
relation to the other or to the inhabitants of the other along the
common frontier between the United States of America and Canada is to be
referred to the Commission under Article IX of the Treaty, the method of
brining such question or matter to the attention of the Commission and
invoking its action ordinarily will be as set forth in this section.
[[Page 65]]
(b) Where both Governments have agreed to refer such a question or
matter to the Commission, each Government will present to the
Commission, at the permanent office in its country, a reference in
similar or identical terms setting forth as fully as may be necessary
for the information of the Commission the question or matter which it is
to examine into the report upon and any restrictions or exceptions which
may be imposed upon the Commission with respect thereto.
(c) Where one of the Governments, on its own initiative, has decided
to refer such a question or matter to the Commission, it will present a
reference to the Commission at the permanent office in its country. All
such references should conform, as to their contents, to the
requirements of paragraph (b) of this section.
(d) Such drawings, plans of survey and maps as may be necessary to
illustrate clearly the question or matter referred should accompany the
reference when it is presented to the Commission.
Sec. 401.27 Notice and publication.
(a) The secretary to whom a reference is presented shall receive and
file the same and shall send a copy forthwith to the other secretary for
filing in the office of the latter. If the reference is presented by one
Government only, the other secretary shall send a copy forthwith to his
Government.
(b) Subject to any restrictions or exceptions which may be imposed
upon the Commission by the terms of the reference, and unless otherwise
provided by the Commission, the secretaries, as soon as practicable
after the reference is received, shall cause a notice to be published in
the Canada Gazette, the Federal Register and in two newspapers,
published one in each country and circulated in or near the localities
which, in the opinion of the Commission, are most likely to be
interested in the subject matter of the reference. The notice shall
describe the subject matter of reference in general terms invite
interested persons to inform the Commission of the nature of their
interest and state that the Commission will provide convenient
opportunity for interested persons to be heard with respect thereto.
Sec. 401.28 Advisory boards.
(a) The Commission may appoint a board or boards, composed of
qualified persons, to conduct on its behalf investigations and studies
that may be necessary or desirable and to report to the Commission
regarding any questions or matters involved in the subject matter of the
reference.
(b) Such board ordinarily will have an equal number of members from
each country.
(c) The Commission ordinarily will make copies of the main or final
report of such board or a digest thereof available for examination by
the Governments and interested persons prior to holding the final
hearing or hearings referred to in Sec. 401.29.
Sec. 401.29 Hearings.
(a) A hearing or hearings may be held whenever in the opinion of the
Commission such action would be helpful to the Commission in complying
with the terms of a reference. Subject to any restrictions or exceptions
which may be imposed by the terms of the reference, a final hearing or
hearings shall be held before the Commission reports to Government in
accordance with the terms of the reference.
(b) The time, place and purpose of the hearing or hearings on a
reference shall be fixed by the chairmen of the two sections.
(c) The secretaries shall forthwith give written notice of the time,
place and purpose of the hearing or hearings to each Government and to
persons who have advised the Commission of their interest. Unless
otherwise directed by the Commission, the secretaries shall also cause
such notice to be published in the Canada Gazette, the Federal Register
and once each week for three successive weeks in two newspapers,
published one in each country and circulated in or near the localities
which, in the opinion of the Commission, are most likely to be
interested in the subject matter of the reference.
(d) All hearings shall be open to the public, unless otherwise
determined by the Commission.
[[Page 66]]
(e) At a hearing, the Governments and persons interested are
entitled to present, in person or by counsel, oral and documentary
evidence and argument that is relevant and material to any matter that
is within the published purpose of the hearing.
(f) The presiding chairman may require that evidence be under oath.
(g) Witnesses may be examined and cross-examined by the
Commissioners and by counsel for the Governments and the Commission.
With the consent of presiding chairman, counsel for any interested
person may also examine or cross-examine witnesses.
(h) The Commission may require further evidence to be given and may
require printed briefs to be submitted at or subsequent to the hearing.
(i) A verbatim transcript of the proceedings at the hearing shall be
prepared.
Sec. 401.30 Proceedings under Article X.
When a question or matter of difference arising between the two
Governments involving the rights, obligations or interests of either in
relation to the other or to their respective inhabitants has been or is
to be referred to the Commission for decision under Article X of the
Treaty, the Commission, after consultation with the said Governments,
will adopt such rules of procedure as may be appropriate to the question
or matter referred or to be referred.
PARTS 402 499 [RESERVED]
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CHAPTER V--BROADCASTING BOARD OF GOVERNORS
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Editorial Note: Nomenclature changes to chapter V appear at 64 FR
54539, Oct. 7, 1999.
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[Reserved]
501 Appointment of Foreign Service officers..... 69
502 Domestic requests for Broadcasting Board of
Governors Program materials............. 76
503 Freedom of Information Act regulation....... 79
504 Testimony by BBG employees, production of
official records, and disclosure of
official information in legal
proceedings............................. 92
505 Privacy Act regulation...................... 97
506 Part-time career employment program......... 103
507 Rules for implementing open meetings under
the Sunshine Act for the Broadcasting
Board of Governors...................... 104
510 Service of process.......................... 107
511 Federal tort claims procedure............... 107
512 Collection of debts under the Debt
Collection Act of 1982.................. 109
513 Government debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 120
518 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 139
519 New restrictions on lobbying................ 165
521 Implementation of the Program Fraud Civil
Remedies Act............................ 176
530 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Broadcasting
Board of Governors...................... 192
531-599
[Reserved]
[[Page 69]]
PART 500 [RESERVED]
PART 501_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents
Sec.
501.1 Policy.
501.2 Eligibility for appointment as Foreign Service Officer.
501.3 Noncompetitive interchange between Civil Service and Foreign
Service.
501.4 Junior Level Career Candidate Program (Class 6, 5, or 4).
501.5 Mid-Level FSO Candidate Program (Class 3, 2, or 1).
501.6 Appointment of Overseas Specialists.
501.7 Appointment as Chief of Mission.
501.8 Reappointment of Foreign Service Officers and Career Overseas
Specialists.
501.9 Interchange of FSOs between Broadcasting Board of Governors and
other Foreign Affairs Agencies.
Authority: Foreign Service Act of 1980 (22 U.S.C. 3901 et seq.).
Source: 50 FR 27423, July 3, 1985, unless otherwise noted.
Sec. 501.1 Policy.
It is the policy of the Broadcasting Board of Governors that Foreign
Service Officers occupy positions in which there is a need and
reasonable opportunity for interchangeability of personnel between the
Board and posts abroad, and which are concerned with (a) the conduct,
observation, or analysis of information and cultural activities, or (b)
the executive management of, or administrative responsibility for, the
overseas operations of the Board's program.
Sec. 501.2 Eligibility for appointment as Foreign Service Officer.
Cross-reference: The regulations governing eligibility for
appointment as a Foreign Service Officer are codified in part 11 of this
title.
Sec. 501.3 Noncompetitive interchange between Civil Service and
Foreign Service.
(a) An agreement between the Office of Personnel Management and the
Board under the provisions of Executive Order 11219 (3 CFR 1964-65 Comp.
p. 303) provides for the noncompetitive appointment of present or former
Foreign Service employees as career or career conditional Civil Service
employees.
(b) Under this agreement former career personnel of the Board's
Foreign Service (FSCR, FSRU, FSIO, FSS, FSO, or FP) and such present
personnel desiring to transfer, are eligible, under certain conditions,
for noncompetitive career or career-conditional appointment in any
Federal agency that desires to appoint them. The President has
authorized the Office of Personnel Management by executive order to
waive the requirements for competitive examination and appointment for
such Board career Foreign Service personnel.
(c) A present or former Civil Service employee may be appointed on a
competitive basis in any Foreign Service class for which the employee
has qualified under the provisions of section 3947 of title 22, United
States Code.
Sec. 501.4 Junior Level Career Candidate Program (Class 6, 5, or 4).
Cross-reference: The regulations governing the junior level Career
Candidate program are codified in part 11 of this title.
Sec. 501.5 Mid-level FSO Candidate Program (Class 3, 2, or 1).
(a) General. The mid-level FSO Candidate program, under the
provisions of section 306 of the Foreign Service Act of 1980,
supplements the junior-level Career Candidate program to meet total
requirements for Foreign Service Officers at the mid-level in the
Foreign Service. Foreign Service limited appointments of FSO Candidates
are made to Class 3, 2, or 1 for a period not to exceed five years.
Occasionally, appointments may be offered at the Class 4 level. The FSO
Commissioning Board will determine whether FSO Candidates have performed
at a satisfactory level and demonstrated the required level of growth
potential and competence, and will make a recommendation on
commissioning as Foreign Service Officers. FSO Candidates who are not
recommended for commissioning prior to the expiration of their limited
appointment will be separated from the mid-level program.
(b) Sources of applicants. (1) The Broadcasting Board of Governors
draws
[[Page 70]]
a significant number of FSO Candidates from Board employees who apply,
and are found qualified by the Board of Examiners for the Foreign
Service (BEX).
(2) The Board also draws Candidates from outside applicants who
possess skills and abilities in short supply in the Foreign Service and
who have capabilities, insights, techniques, experiences, and
differences of outlook which would serve to enrich the Foreign Service
and enable them to perform effectively in assignments both abroad and in
the United States. Minority applicants are recruited for mid-level entry
under the COMRAT program. Appointment from sources outside the Board is
limited and based on intake levels established in accordance with total
Broadcasting Board of Governors FSO workforce and functional
requirements. Such appointments are based on successful completion of
the examination process, and existing assignment vacancies.
(c) Eligibility requirement--(1) Broadcasting Board of Governors
Employees. On the date of application, employees must have at least
three years of Federal Government service in a position of
responsibility in the Board. A position of responsibility is defined as
service as an Overseas Specialist at Class 4 or above or as a Domestic
Specialist at GS-11 or above within the Board. The duties and
responsibilities of the position occupied by the applicant must have
been similar or closely related to those of a Foreign Service Officer in
terms of knowledge, skills, abilities, and overseas experience. Board
Domestic and Overseas Specialists must be no more than 58 years of age
on the date of redesignation or appointment as an FSO Candidate.
(2) Applicants Under Special Recruitment Programs. Minority and
women applicants must be no more than 58 years of age, must have
approximately nine years of education or experience relevant to work
performed in Broadcasting Board of Governors, must be knowledgeable in
the social, political and cultural history of the U.S. and be able to
analyze and interpret this in relation to U.S. Government policy and
American life.
(3) Outside Applicants. On the date of appointment, applicants must
be no more than 58 years of age, with nine years of relevant work
experience and/or education, or proficiency in a language for which the
Board has a need, or substantial management expertise. Relevant work
experience is defined as public relations work, supervisory or
managerial positions in communications media, program director for a
museum or university-level teacher of political science, history,
English or other relevant disciplines. Appointments from these sources
for the limited vacancies available are made on a competitive basis to
fill specific Service needs after ensuring that the vacancies cannot be
filled by Foreign Service Officers already in the Foreign Service
Officer Corps.
(d) Application Procedures. (1) Applicants must complete Standard
Form 171, Application for Federal Employment; Form DSP-34, Supplement to
Application for Federal Employment; a 1,000 word autobiography; a
statement affirming willingness and capacity to serve at any post
worldwide; and transcripts of all graduate and undergraduate course work
and forward them to the Special Recruitment Branch, Office of Personnel
(M/PDSE).
(2) The filing of an application for the Foreign Service does not in
itself entitle an applicant to examination. The decision to proceed with
an oral examination is made by a Qualifications Evaluation Panel after
determining the applicant's eligibility for appointment and reviewing
the applicant's qualifications including his/her performance, and
administrative files (or equivalents), claimed language proficiency and
other background or factors which may be related to the work performed
by FSOs. An oral examination is given only in those cases where the
applicant is found to possess superior qualifications, proven ability,
and high potential for success in the Foreign Service.
(e) Examination process--(1) Written Examination. A written
examination will not normally be required of applicants for FSO
Candidate appointments. However, if the volume of applications for a
given class or classes is such as to make it infeasible to examine
applicants orally within a reasonable time,
[[Page 71]]
such applicants may be required to take an appropriate written
examination prescribed by the Board of Examiners. Those who meet or
exceed the passing level set by the Board of Examiners on the written
examination will be eligible for selection for the oral examination.
(2) Oral examination. (i) Applicants approved by the Qualifications
Evaluation Panel for examination will be given an oral examination by a
panel of Deputy Examiners approved by the Board of Examiners. The oral
examination is designed to enable the Board of Examiners to determine
whether applicants are functionally qualified for work in the Foreign
Service at the mid-level, whether they would be suitable representatives
abroad of the United States, 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. The oral
examination is individually scheduled throughout the year and is
normally given in Washington, D.C. 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.
(ii) The panel will orally examine each applicant through
questioning and discussion. There will also be a writing exercise and an
in-basket test. Applicants taking the oral examination will be graded
according to the standards established by the Board of Examiners. The
application of anyone whose score is at or above the passing level set
by the Board will be continued. The application of anyone whose score is
below the passing level will be terminated. The applicant may, however,
reapply in 12 months by submitting a new application.
(3) Foreign language requirement. All applicants 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 (MLAT)
for which a score of 50 points (on a scale of zero to eighty) is
necessary to qualify for further processing. No applicant will be
recommended for career appointment who has not demonstrated such a
proficiency or aptitude. An applicant may be selected, appointed and
assigned without first having demonstrated required proficiency in a
foreign language, but the appointment will be subject to the condition
that the employee may not receive more than one promotion and may not be
commissioned as an FSO until proficiency in one foreign language is
achieved.
(4) Medical examination. Those applicants recommended by the Board
of Examiners for an FSO candidacy, and their dependents who will reside
with them overseas, are required to pass a physical examination at the
Department of State Medical Division.
(5) Security and suitability considerations. A background
investigation or appropriate security clearance update will be conducted
on each applicant, and no application may be continued until a security
clearance has been granted.
(6) Class of appointment. The Board of Examiners fixes the entry
level for appointment as an FSO candidate.
(7) Certification for appointment. After completion of all aspects
of the examination, the Board of Examiners certifies to the Board
successful candidates for appointment as FSO Candidates. Determinations
of duly constituted panels of examiners and deputy examiners are final,
unless modified by specific action of the Board of Examiners for the
Foreign Service.
(8) FSO Candidate registers. (i) After approval by the Board of
Examiners, and certification as to suitability and security clearance by
the Board's Director of Security, successful applicants will have their
names placed on a register for the class for which they have been found
qualified. Appointments to available openings will be made from the
applicants entered on the register for the class of the position to be
filled. Inclusion on the register does not guarantee eventual assignment
and appointment as an FSO Candidate. Applicants who have qualified but
have not been appointed because of lack of openings will be dropped from
the register 18 months after the date of placement on it (or the
completion of an inside applicant's current overseas tour, whichever is
longer). Such applicants may reapply for the program, but will be
required to
[[Page 72]]
repeat the entire application process, including BEX testing.
(ii) Any applicant on the register who refuses an assignment offer
will be removed from the Register and will not be eligible to reapply
for the program for seven years.
(iii) The Board of Examiners may extend the eligibility period when
such extension is in its judgment justified in the interest of the
Foreign Service.
(f) Appointment as an FSO Candidate. (1) An FSO Candidate will be
given a four-year Foreign Service limited appointment. Board Career
Overseas Specialists will be redesignated as FSO Candidates for a period
of four years. The appointment or redesignation may be extended for one
year, but must be terminated at the end of the fifth year. The purpose
of the FSO Candidacy is to permit on-the-job evaluation of an
individual's suitability and capacity for effective service as a Foreign
Service Officer.
(2) FSO Candidates will be assigned to Generalist positions
overseas, and will compete for promotion with other Generalist officers
under the Annual Generalist Selection Boards. FSO Candidates at the
Class 1 level may not compete for promotion into the Senior Foreign
Service prior to commissioning as an FSO.
(3) The FSO Candidacy may be terminated during the four-year period
for unsatisfactory performance (22 U.S.C. 4011) or for such other cause
as will promote the efficiency of the Service (22 U.S.C. 4010).
(g) Commissioning as a Foreign Service Officer. (1) Upon completion
of three years' service (most of which will have been overseas), the FSO
Candidate will be eligible for commissioning as a Foreign Service
Officer. The FSO Commissioning Board will review all FSO Candidates
appointed on or after March 1, 1980 and will recommend on tenure.
(2) The criterion used for deciding whether to recommend
commissioning of FSO Candidates is the Candidate's demonstrated
potential to perform effectively as a Foreign Service Officer in a
normal range of generalist assignments up through the Class 1 level. No
quota or numerical limit is placed on the number of affirmative
decisions.
(3) If recommended for commissioning, and having satisfied the
language proficiency requirements, the name of the FSO Candidate will be
forwarded to the President and the Senate and, upon approval, the FSO
Candidate will be commissioned as an FSO.
(4) If the FSO Commissioning Board does not recommend commissioning
of the FSO Candidate during its review, it may recommend extension of
the FSO Candidacy to allow for a future review. Under no circumstances
will an FSO Candidacy be extended to a total of more than five years.
(5) Candidates not recommended for commissioning or who have not
satisfied the language proficiency requirement will be separated from
the Service at the expiration of their appointment. However, FSO
Candidates who were appointed from within the Board with career status
as a Domestic or Overseas Specialist may exercise reappointment rights
to their previous category in lieu of separation.
Sec. 501.6 Appointment of Overseas Specialists.
(a) General. Members of the Board's Foreign Service appointed as
Overseas Specialists serve on rotational U.S.-overseas assignments in
the following types of positions: General Administration; Publication
Writers and Editors; Exhibit Managers; Printing Specialists; English
Teaching Specialists; Correspondents; Engineers for the Voice of
America; Regional Librarian Consultants; and Secretaries. Appointees
serve a trial period of service as Specialist Candidates under Foreign
Service limited appointments (or redesignation) for a period not to
exceed five years. Appointments are made to F.S. classes 8 through 1.
Specialist Candidates are given career appointments as Overseas
Specialists based on the recommendations of Specialist Selection Boards.
Specialist candidates not recommended for tenuring will be separated
from the Foreign Service, or reinstated in the Civil Service.
(b) Sources of applicants. Qualified Broadcasting Board of Governors
domestic employees comprise a significant recruitment source for
Overseas Specialist appointments. Such employees will be given priority
consideration
[[Page 73]]
over outside applicants when applying for Overseas Specialist positions,
when qualifications are otherwise equal.
(c) Eligibility requirements. All applicant must be citizens of the
United States, and must be at least 21 years of age and no more than 58
years of age at the time of appointment. The 21-year age requirement may
be waived by the Director, Office of Personnel (M/P or VOA/P) when she
or he determines that the applicant's services are urgently needed.
Broadcasting Board of Governors employee applicants must also have at
least three years of Federal government experience and occupy a position
at the GS-11 level (or equivalent) or above (GS-10 for Electronic
Technicians in the Voice of America). All applicants must be available
for worldwide assignment to positions in their occupational category.
(d) Application procedures. (1) Applications for all specialties
except secretarial should include a current SF-171, Application for
Federal Employment; a DSP-34, Supplement to Application for Federal
Employment; university transcripts; a 1,000 word autobiographical
statement which should include mention of the qualifications the
applicant would bring to the job and reason for desiring to work for the
Board; and a statement affirming willingness and capacity to serve at
any post worldwide.
(2) Special requirements for Foreign Service Secretaries.
Secretarial applicants must submit a current SF-171, Application for
Federal Employment, and a 250 word essay on a commonly understood
subject to demonstrate grammatical competence. The following specific
requirements must be met by applicants: Ability to type accurately at 60
words per minute; four years of secretarial or administrative experience
(business school or college training may be substituted for up to two
years of required work experience); and attainment of an acceptable
score in verbal ability and spelling tests. Applicants will subsequently
be given a written examination to measure administrative aptitude.
(e) Examination process--(1) Application review. All applications
are to be sent to the Special Recruitment Staff, Office of Personnel (M/
PDSE), or to the Foreign Personnel Advisor (VOA/PF) for Voice of America
positions.
(2) Qualifications Evaluation Panel. A Qualifications Evaluation
Panel will evaluate the applicant's qualifications including his/her
performance and administrative files (or equivalent), claimed language
proficiency and other background or factors which may be related to the
work performed by an Overseas Specialist Officer in the relevant
specialty.
(3) Oral examination. (i) Applicants who are passed on by the
Qualifications Evaluation Panel to the Board of Examiners will be given
an oral examination to evaluate the applicant's total qualifications for
service as an Overseas Specialist in the desired functional specialty.
(ii) The Board panel examining all candidates except those of the
Voice of America will consist of one Broadcasting Board of Governors
Overseas Specialist and two BEX Deputy Examiners. For VOA candidates,
the panel will consist of the Foreign Personnel Advisor, a BEX Deputy
Examiner assigned to the Voice of America, and a Deputy Examiner
assigned to the Board of Examiners.
(iii) The panel will examine each applicant through questioning and
discussion. Hypothetical problem-solving exercises, a writing exercise
and an in-basket test may also be required. The panel will also
recommend the F.S. entry level for appointment. If the panel's
recommendation is unfavorable, the application process will be
discontinued. An unsuccessful applicant may apply again in 12 months.
(4) The same medical and security requirements applicable to FSO
Candidates pertain to Specialist Candidates.
(5) Overseas Specialist Candidate register. If an applicant is
successful in the examination, and medical and security clearances have
been successfuly completed, his/her name will be added to the
appropriate Overseas Specialist register for a period of 18 months, or
completion of an inside candidate's current tour of duty overseas,
whichever is longer, at the Foreign Service class determined in the
examination process and based on previous experience. Inclusion on the
register does not
[[Page 74]]
guarantee eventual assignment and appointment as an Overseas Specialist
Candidate.
(f) Appointment as a Specialist Candidate. (1) When the Office of
Personnel identifies an overseas vacancy which cannot be filled from the
existing ranks of Overseas Specialists, applicants on the Overseas
Specialist register will be considered for the assignment. An applicant
will not be appointed unless an overseas position has been identified
and a need for the individual in the Foreign Service has been certified
by the Director, Office of Personnel (M/P or VOA/P). Any applicant
selected from the register who refuses an assignment offer will be
dropped from the register and precluded from reapplying for a period of
seven years.
(2) Applicants will be given a Foreign Service limited appointment
(or redesignation) for a period of four years at the Foreign Service
Class determined in the examination process. The purpose of this
untenured appointment is to allow the Board to evaluate and assess the
Specialist Candidate's abilities and future potential prior to offering
career appointment as an Overseas Specialist. The limited appointment
may be extended for one additional year, but must be terminated at the
end of the fifth year if the Candidate does not obtain career tenure.
(3) The Candidate will receive the orientation and training
necessary to serve overseas and will be assigned overseas in a position
in his or her specialty. Broadcasting Board of Governors Civil Service
employees selected as Overseas Specialist Candidates will be appointed
only if the Board element to which they are currently assigned is
willing to affirm in writing that a position at the appropriate level
will be made available for the employee should the candidacy end
unsuccessfully. Broadcasting Board of Governors Civil Service applicants
will be appointed as Overseas Specialist Candidates on or about the date
of their departure for post of assignment or upon assumption of an
assignment (which has been identified and will follow a period of
orientation in Washington). The Board may also assign a Candidate to a
U.S.-based position for an initial assignment of up to 24 months when
the Candidate will spend the majority of his/her time traveling overseas
and will, except for the U.S. basing, be fully functioning as an
Overseas Specialist. Specialist Candidates will compete for promotion by
the Annual Overseas Specialist Selection Board with other officers in
the same specialty and at the same class level. Specialist Candidates at
the Class 1 level are ineligible for promotion into the Senior Foreign
Service.
(4) The Specialist candidacy may be terminated at any time for
unsatisfactory performance (22 U.S.C. 4011) or for such cause as will
promote the efficiency of the Service (22 U.S.C. 4010).
(g) Career appointment as an Overseas Specialist. In accordance with
section 3946 of title 22 United States Code, the decision to offer a
Specialist Candidate a career appointment will be based on the
recommendation made by the Annual Overseas Specialist Selection Board
which reviews all employees in the Candidate's occupational category and
class level.
(1) Eligibility. Specialist Candidates who have performed at least
two years of overseas service will be eligible for review for career
status at the time of the Candidate's third Board review. Candidates
serving an initial tour in the U.S. but spending the majority of time
working overseas will be credited with up to one year's overseas
service, but no more than half of the time based in the U.S. If a
Specialist Candidate is not recommended for career status during the
initial review, the Candidate may be reviewed again when the next Annual
Overseas Specialist Selection Board convenes if the initial Board so
recommends.
(2) Selection Board Review. The Selection Board(s) will review the
official performance file of the eligible Specialist Candidates and in
accordance with established precepts, will determine whether the
Candidates should be recommended for career appointment as Overseas
Specialists. Recommendations by the Board will be based on the
Candidate's demonstrated aptitude and fitness for a career in the
Foreign Service in their occupational specialties. No quota or numerical
limit is placed on the number of positive career status
[[Page 75]]
decisions that can be made by Selection Boards. The Specialist candidacy
will be terminated if the Candidate fails to be recommended for career
status after a second Board review for tenuring. Candidates may be
terminated earlier than the expiration of their limited appointment if
so recommended by the Board and approved by the Director, Office of
Personnel (M/P or VOA/P). Specialist Candidates recommended for career
status by the Selection Board will be given Foreign Service career
appointments (or redesignation) as Overseas Specialist, to take effect
within one month of the Board's recommendation.
Sec. 501.7 Appointment as Chief of Mission.
(a) Appointment by President. Chiefs of mission are appointed by the
President, by and with the advice and consent of the Senate. They may be
career members of the Foreign Service or they may be appointed from
outside the Service.
(b) Recommendation of Foreign Service career members. On the basis
of recommendations made by the Director of Broadcasting Board of
Governors, the Secretary of State from time to time furnishes the
President with the names of Foreign Service career members qualified for
appointment as chiefs of mission. The names of these officers, together
with pertinent information concerning them, are given to the President
to assist him in selecting qualified candidates for appointment as
chiefs of mission.
(c) Status of Foreign Service career members appointed as Chiefs of
Mission. Foreign Service career members who are appointed as chiefs of
mission retain their career status as Foreign Service career members.
Sec. 501.8 Reappointment of Foreign Service Officers and Career
Overseas Specialists.
The President may, by and with the advice and consent of the Senate,
reappoint to the Service a former Foreign Service Officer who is
separated from the Service. The Director (Broadcasting Board of
Governors) may reappoint to the Service a former career Overseas
Specialist.
(a) Requirements for reappointment. (1) On the date of application,
each applicant must be a citizen of the United States.
(2) No applicant will be considered who has previously been
separated from the Foreign Service pursuant to section 608 or 610 of the
Foreign Service Act of 1980 (or predecessor section 633, 635, or 637 of
the Foreign Service Act of 1946, as amended); or who resigned or retired
in lieu of selection out or separation for cause.
Note: This requirement will not apply where it has been determined
by the Foreign Service Grievance Board under 3 FAM 660 or by the
Director, Office of Personnel, that the separation or the resignation or
retirement in lieu of selection out or separation for cause was
wrongful; where reappointment is determined by the Director, Office of
Personnel, as an appropriate means to settle a grievance or complaint of
a former Foreign Service career member on a mutually satisfactory basis;
or where reappointment is the indicated redress in a proceeding under 3
FAM 130 ``Equal Employment Opportunity.''
(b) Application. Apply by letter addressed to the Director, Office
of Personnel. Include the standard application forms, SF-171,
Application for Federal Employment; and DSP-34, Supplement to
Application for Federal Employment; and a brief resume of work and other
experience since resignation from the Foreign Service. Whenever the
Director, Office of Personnel, finds that the reappointment of one or
more former Foreign Service Career Members may be in the best interest
of the Service, all application forms, along with the available
personnel files, will be referred as appropriate to the Board of
Examiners for the Foreign Service which will conduct an advisory
evaluation of the qualifications of each applicant.
(c) Nature of evaluation. (1) The Board of Examiners' advisory
qualifications evaluation of FSO applicants (i) will be based on a
review of all pertinent information relating to the applicant's record
of employment in the Foreign Service and to subsequent experience, as
well, and (ii) will take into consideration among other factors, the
rank of the applicant's contemporaries in the Service in recommending
the class in which the applicant will be reappointed
[[Page 76]]
under section 308 of the Foreign Service Act of 1980.
(2) In consultation with the Foreign Service Personnel Division (M/
PF or VOA/PF) and officials from the pertinent Board elements, the
Overseas Specialist applicant's total qualifications and experience will
be evaluated based on the application and an interview. On the basis of
this review and the recommendations of the appropriate officials, the
personnel office will determine whether the application should be
continued and, if so, will recommend the appointment class.
(d) Medical examination and security investigation. Qualified
applicants and their dependents who will accompany them overseas will be
given a physical examination. A security investigation will also be
conducted. The reappointment action is subject to completion of a
satisfactory security investigation and satisfactory medical examination
of the applicant and his/her dependents.
(e) Selection for reappointment. The Director, Office or Personnel
(M/P or VOA/P), taking into consideration (1) the qualifications and
experience of each applicant as outlined in the qualifications
evaluation performed by the Board of Examiners for the Foreign Service
or the personnel office, (2) future placement and growth potential, and
(3) the needs of the Service for the applicant's skills determines which
applicant, or applicants, are qualified for reappointment and the
appointment class that is considered to be appropriate. An Overseas
Specialist may not be reappointed until and unless an overseas
assignment has been identified. The Director, Office of Personnel (M/P
or VOA/P) is responsible for initiating appointment action. Any
voluntary applicant who refuses an offer of reappointment will not be
considered for reappointment again.
Sec. 501.9 Interchange of FSOs between Broadcasting Board of
Governors and other Foreign Affairs Agencies.
Foreign Service Officers (FSOs) desiring transfer from one agency to
another may apply under the following provisions:
(a) Applications. Applications for interchange appointments should
be sent to the Board of Examiners for the Foreign Service, Department of
State, Washington, DC 20520.
(b) Certification and approval. (1) When a Foreign Service Officer
of another Foreign Affairs Agency wishes to transfer to the Broadcasting
Board of Governors, a certification of need is required from the
Director, Office of Personnel, Broadcasting Board of Governors, and
approval is required by the Director of Personnel for the other agency
for the officer's release to Broadcasting Board of Governors.
(2) When a Broadcasting Board of Governors FSO wishes to transfer to
another Foreign Affairs Agency, a certification of need is required from
the Director of Personnel of the other Agency, and approval is required
by the Director, Office of Personnel, Broadcasting Board of Governors,
for the officer's release to that Agency.
(3) A review by the Board of Examiners for the Foreign Service will
certify the eligibility of candidates for exchange. BEX will notify the
Office of Personnel, Broadcasting Board of Governors when a Foreign
Service Officer of another Agency has been approved for transfer and
Broadcasting Board of Governors will process the necessary employment
papers.
(4) A new FSO appointment for officers transferring between another
Foreign Affairs Agency and Broadcasting Board of Governors is not
required.
PART 502_DOMESTIC REQUESTS FOR BROADCASTING BOARD OF GOVERNORS PROGRAM
MATERIALS--Table of Contents
Sec.
502.1 Authority and scope.
502.2 Definitions.
502.3 Availability of program materials on public Web sites.
502.4 Media or organization one-time requests for broadcast quality
agency program materials.
502.5 Media or organization requests for ongoing subscriptions to
broadcast quality agency program materials
502.6 Terms of use for accessing program materials available on agency
Web sites.
502.7 Denial of requests.
502.8 Fees.
Authority: 22 U.S.C. 1461, 1461-1a.
[[Page 77]]
Source: 78 FR 39585, July 2, 2013, unless otherwise noted.
Sec. 502.1 Authority and scope.
(a) Authority for this part. This part is pursuant to Section 1078
of the National Defense Authorization Act for Fiscal Year 2013, Public
Law 112-239, as codified in 22 U.S.C. 1461, 1461-1a and the U.S.
International Broadcasting Act, 22 U.S.C. 6201 et seq.
(b) Scope. This part applies to the public and all divisions of the
Federal Government supervised by the Broadcasting Board of Governors
under the U.S. International Broadcasting Act of 1994 (collectively
``the Agency''). These regulations only cover the procedures for
responding to domestic requests for Agency program materials.
(c) Summary.
(1) The Broadcasting Board of Governors supervises all U.S. non-
military international broadcasting activities in accordance with the
broadcasting principles and standards in the U.S. International
Broadcasting Act of 1994, 22 U.S.C. 6201 et seq., including consistency
with the broad foreign policy objectives of the United States.
(2) As stated in the U.S. International Broadcasting Act of 1994, it
is the policy of the United States to promote freedom of opinion and
expression and to open communication of information and ideas among the
people of the world. The Agency has adopted as its mission statement
``to inform, engage, and connect people around the world in support of
freedom and democracy.''
(3) It is the Agency's policy to make its program materials
available, upon request, whenever doing so is consistent with all
statutory authorities, prohibitions, principles, and standards. However,
the Agency reserves the right to deny requests for program materials
under circumstances described in Section 502.7 of this regulation.
(4) Pursuant to section 501 of the U.S. Information and Educational
Exchange Act, as amended, as codified in 22 U.S.C. 1461, the Agency may,
upon request, provide members of the public, organizations, and media
with program materials which the Agency disseminated abroad, in
accordance with these regulations.
(5) Pursuant to Section 208 of Foreign Relations Authorization Act,
Fiscal Years 1986 and 1987, as amended, as codified at 22 U.S.C. 1461-
1a, the Agency is prohibited from using appropriated funds to influence
public opinion in the United States, however, the statute clarifies that
the Agency may:
(i) Provide information about its operations, programs, or program
materials to the media, the public, or Congress in accordance with
applicable law;
(ii) Make program materials available in the Unites States, when
appropriate, and in accordance with other applicable law.
Sec. 502.2 Definitions.
As used in this part:
(a) Media entity means any person or entity, that actively gathers
information of potential interest to a segment of the public, turns
gathered information into a distinct work, or distributes that work to
an audience within the United States, and otherwise serves the purposes
described in Sec. 502.4.
(b) Organization means any corporation, trust, association,
cooperative, or other group organized primarily for scientific,
educational, service, charitable, or similar purpose, including but not
limited to institutions of higher education, and otherwise serves the
purposes described in Sec. 502.4.
(c) Program materials means radio broadcasts, television broadcasts,
and Internet content that the Agency disseminates to audiences outside
of the United States, pursuant to: The U.S. Information and Educational
Exchange Act of 1948 (22 U.S.C. 1461 et seq.); The U.S. International
Broadcasting Act of 1994 (22 U.S.C. 6201 et seq.); The Radio
Broadcasting to Cuba Act (22 U.S.C. 1465 et seq.); or The Television
Broadcasting to Cuba Act (22 U.S.C. 1465aa et seq.).
(d) Requestor means any private person or entity within the United
States that requests program materials from the Agency.
Sec. 502.3 Availability of program materials on public Web sites.
(a) The Agency makes program materials available to Requestors
through the Agency's news and information
[[Page 78]]
Web sites designed for foreign audiences. To access currently-available
Agency program materials, please visit www.voanews.com and
www.martinoticias.com. The homepages of these Web sites display a
portion of the Agency's most recent news reporting. Additional program
materials are available through the Web sites' search functions.
(b) Program materials are available on Agency Web sites, and may be
removed from Agency Web sites solely at the Agency's discretion. The
Agency will remove program materials from Agency Web sites when a
National Archives and Records Administration (NARA) records schedule
goes into effect, or when required by licensing agreements with third-
party copyright holders. Once these program materials have been removed
from Agency Web sites, they are no longer available from the Agency.
(1) When full programs are removed from the Agency's Web sites in
accordance with a NARA records schedule, programs designated as
permanent will be transferred to NARA. For information on how to request
Agency program materials that have been transferred to NARA, see the
Agency's records schedules and NARA's regulations at www.nara.gov.
(2) Programs designated as temporary under a NARA records schedule
will not be retained by the Agency once they are removed from the
Agency's Web sites and are no longer needed for the Agency's use.
(c) Segments incorporated into final programs, including music,
interviews, reports, and other program elements, will not be transferred
to NARA independently of full program recordings, and will not be
available after they have been removed from Agency Web sites.
(d) Draft program materials, and any other program materials not
selected for dissemination abroad, are not available.
(e) The Agency shall determine the method of making program
materials available, as well as the file type, file format, resolution,
and storage medium(s) that are available. Program materials are only
available in the same form (i.e. radio or television file-type and file
format) and language in which the Agency disseminated them abroad.
[78 FR 39585, July 2, 2013, as amended at 78 FR 67026, Nov. 8, 2013]
Sec. 502.4 Media or organization one-time requests for broadcast
quality agency program materials.
Upon request, the Agency may provide a broadcast-quality copy of
Agency program materials to media entities, educational organizations,
not-for-profit corporations, or other requestors. Requestors will be
informed if materials are subject to third party content holders'
restrictions. One-time requests for broadcast quality copies of Agency
program materials should be directed to:
(a) The Voice of America Office of Public Relations for broadcast-
quality copies of Voice of America program materials; and
(b) The TV Marti Division of the Office of Cuba Broadcasting for
broadcast-quality copies of TV or Radio Marti program materials.
[78 FR 67026, Nov. 8, 2013]
Sec. 502.5 Media or organization requests for ongoing subscriptions
to broadcast quality agency program materials
(a) Upon request, the Agency may make program materials available on
an ongoing basis to Media entities, or other organizations, through a
subscription agreement, provided that the Agency determines that
entering into a subscription agreement to make program materials
available on an ongoing basis would be consistent with the Agency's
mission and authorities. Requested, ongoing subscription agreements must
be consistent with the Agency's Policy for domestic distribution which
incorporates the Broadcasting principles and standards and other
requirements, found in 22 U.S.C. 1461, 1461-1a, 1462, 6201, 6202, 6203,
6204, 6205, 6206; Pub. L. 112-239, section 1078(b), 126 Stat. 1632,
1958; agreements with third-parties that hold a copyright in Agency
program materials; and Terms of Use on Agency Web sites. Requestors
shall secure all necessary
[[Page 79]]
licenses from all persons or organizations that hold a copyright in any
portion of program materials before making any use of those program
materials, except uses of program materials permitted by the Copyright
Act of 1976, as amended.
(b) Media entities or other organizations may request ongoing
subscriptions by filling out an application form found on the Web site
for the Direct System, the Agency's professional distribution system.
[78 FR 67026, Nov. 8, 2013]
Sec. 502.6 Terms of use for accessing program materials available on
agency Web sites.
(a) By accessing Agency Web sites, Requestors agree to all the Terms
of Use available on those Web sites.
(b) All Requestors are advised that Agency program materials may
contain third-party copyrighted material, unless the Agency specifically
informs the Requestor otherwise. Accordingly, and as further explained
in the Terms of Use mentioned above, by using Agency Web sites to access
program materials:
(1) The Requestor agrees that he or she is solely responsible for
his or her use of program materials provided by the Agency and any
copyrighted portion(s) of those materials;
(2) The Requestor agrees that he or she shall secure all necessary
licenses from all persons or organizations that hold a copyright in any
portion of requested program materials before making any use of those
program materials, except uses of program materials permitted by the
Copyright Act of 1976, as amended.
[78 FR 39585, July 2, 2013, as amended at 78 FR 67026, Nov. 8, 2013]
Sec. 502.7 Denial of requests.
(a) The Agency reserves the right to deny any request for program
materials made pursuant to these regulations for cause, including but
not limited to the following circumstances:
(1) For a Requestor's failure to comply with the Terms of Use on
Agency Web sites;
(2) For a Requestor's failure to secure necessary rights and
licenses to use third-party copyrighted materials when the Requestor
uses Agency program materials in any way not explicitly permitted by the
Copyright Act of 1976, as amended;
(3) When the Agency's distribution of program materials is
restricted by an agreement with a third-party that holds a copyright in
a portion of Agency program materials;
(4) If providing the requested materials would be inconsistent with
the Agency's statutory authorities, the broadcasting element's charter,
or any applicable law or regulation.
(b) For more information on the criteria for accepting or denying
requests, please see the Agency's policy for domestic distribution,
available at www.bbg.gov.
Sec. 502.8 Fees.
(a) The Agency makes program material available at no cost on
www.voanews.com and www.martinoticias.com.
(b) The Agency may collect a fee for reimbursement of the reasonable
costs incurred to fulfill a request for Agency program materials,
including ongoing subscriptions for Media entities and one-time requests
for broadcast-quality copies of Agency program materials. Fees charged
for ongoing subscriptions, if any, will be outlined in an agreement
between the Media entity and the Agency.
(c) The Agency reserves the right to establish and change fees in
accordance with applicable law and regulation.
PART 503_FREEDOM OF INFORMATION ACT REGULATION--Table of Contents
Sec.
503.1 Introduction and definitions.
503.2 Making a request.
503.3 Availability of agency records.
503.4 Time limits.
503.5 Records available for public inspection.
503.6 Restrictions on some agency records.
503.7 Fees.
503.8 Exemptions.
503.9 Electronic records.
Authority: 5 U.S.C. 552 Reform Act of 1986 as amended by Pub. L. 99-
570; sec. 1801-1804; U.S.C. 2658; 5 U.S.C. 301; 13 U.S.C. 8, E.O. 10477,
as amended; 47 FR 9320, Apr. 2, 1982, E.O. 12356. 5 U.S.C. 552 (1988 &
Supp. III 1991)
[[Page 80]]
as amended by Freedom of Information Reform Act of 1986, Pub. L. 99-570,
Title I, sections 1801-1804, 100 Stat. 3207, 3207-48-50 (1986)(codified
at 5 U.S.C. 552 (1988)); 22 U.S.C. 2658 (1988); 5 U.S.C. 301 (1988); 13
U.S.C. 8 (2988); E.O. 10477, 3 CFR 958 (1949-1953) as amended by E.O.
10822, 3 CFR 355 (1959-1963), E.O. 12292, 3 FR 134 (1982), E.O. 12356, 3
CFR 166 (1983), E.O. 12958 (1995).
Source: 67 FR 8867, Feb. 27, 2002, unless otherwise noted.
Sec. 503.1 Introduction and definitions.
(a) Introduction. The Freedom of Information Act (FOIA) and this
part apply to all records of The Broadcasting Board of Governors (BBG).
As a general policy BBG follows a balanced approach in administering the
FOIA. We recognize the right of public access to information in the
Agency's possession, but we also seek to protect the integrity of the
Agency's internal processes. This policy calls for the fullest possible
disclosure of records consistent with those requirements of
administrative necessity and confidentiality which are recognized by the
FOIA.
(b) Definitions:
Access Appeal Committee or Committee means the Committee delegated
by the Agency Head for making final agency determinations regarding
appeals from the initial denial of records under the FOIA.
Agency or BBG means the Broadcasting Board of Governors. It includes
all parts of the BBG in the U.S. and its worldwide operations.
Commercial use, when referring to a request, means that the request
is from, or on behalf of, one who seeks information for a use or purpose
that furthers the commercial, trade, or profit interests of the
requester or of a person on whose behalf the request is made. Whether a
request is for a commercial use depends on the purpose of the request
and how the records will be used. The identity of the requester
(individual, non-profit corporation, for-profit corporation), or the
nature of the records, while in some cases indicative of that purpose or
use, is not necessarily determinative. When a request is made by a
representative of the news media, the request shall be deemed to be for
a non-commercial use.
Department means any executive department, military department,
government corporation, government controlled corporation, any
independent regulatory agency, or other establishment in the executive
branch of the Federal Government. A private organization is not a
department even if it is performing work under contract with the
Government or is receiving Federal financial assistance. Grantee and
contractor records are not subject to the FOIA unless they are in the
possession and control of the BBG.
Duplication means the process of making a copy of a record and
sending it to the requester, to the extent necessary to respond to the
request. Such copies include paper copy, microform, audiovisual
materials, and magnetic tapes, cards and discs.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or
institution of professional or vocational education.
FOIA means the Freedom of Information Act, section 552 of title 5,
United States Code, as amended.
Freedom of Information Officer means the BBG official who has been
delegated the authority to release or withhold records and assess,
waive, or reduce fees in response to FOIA requests.
Non-commercial scientific institution means an institution that is
not operated substantially for the purposes of furthering its own or
someone else's business, trade, or profit interests, and that is
operated for purposes of conducting scientific research whose results
are not intended to promote any particular product or industry.
Records (and any other term used in this section in reference to
information) include any information that would be an agency record
subject to the requirements of this section when maintained by the
Agency in any format, including an electronic format. Records also
include any handwritten, typed or printed documents (such as memoranda,
books, brochures, studies, writings, drafts, letters, transcripts, and
minutes) and documentary material in other forms (such as punchcards,
magnetic tapes, cards, or discs; paper tapes; audio or video recordings,
[[Page 81]]
maps, photographs, slides, microfilm, and motion pictures). It does not
include objects or articles such as exhibits, models, equipment, and
duplication machines or audiovisual processing materials. Reports does
not include books, magazines, pamphlets, or other reference material in
formally organized and officially designated BBG libraries, where such
materials are available under the rules of the particular library.
Representative of the news media means a person actively gathering
news for an entity organized and operated to publish or broadcast news
to the public. News means information that is about current events or
that would be of current interest to the public. News media entities
include television and radio broadcasters, publishers of periodicals (to
the extent they publish ``news'') who make their products available for
purchase or subscription by the general public, and entities that may
disseminate news through other media (e.g., electronic dissemination of
text). Freelance journalists shall be considered representatives of a
news media entity if they can show a solid basis for expecting
publication through such an entity. A publication contract or a
requester's past publication record may show such a basis.
Request means asking in writing for records whether or not the
request refers specifically to the FOIA.
Review means examining the records to determine which portions, if
any, may be released, and any other processing that is necessary to
prepare the records for release. It includes only the first examination
and processing of the requested documents for purposes of determining
whether a specific exemption applies to a particular record or portion
of a record.
Search means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also
page-by-page and line-by-line examination to identify responsive
portions of a document. However, it does not include line-by-line
examination where merely duplicating the entire page would be a less
expensive and quicker way to comply with the request.
Sec. 503.2 Making a request.
(a) How to request records. All requests for documents shall be made
in writing. Requests should be addressed to The Broadcasting Board of
Governors (BBG), FOIA/Privacy Act Officer, Office of the General
Counsel, 330 Independence Avenue, SW, Suite 3349, Washington, DC 20237;
telephone (202) 260-4404; or fax (202) 260-4394. Write the words
``Freedom of Information Act Request'' on the envelope and letter.
(b) Details in your letter. Your request for documents should
provide as many details as possible that will help us find the records
you are requesting. If there is insufficient information, we will ask
you to provide greater details. Include your telephone number(s) to help
us reach you if we have questions. If you are not sure how to write your
request or what details to include, you may call the FOIA Office to
request a copy of the Agency's booklet ``Guide and Index of Records,''
or access the same information via the Internet on BBG's World Wide Web
site (http://www.ibb.gov). The more specific the request for documents,
the sooner the Agency will be able to respond to your request(s).
(c) Requests not handled under FOIA. We will not provide documents
requested under the FOIA and this part if the records are currently
available in the National Archives, subject to release through the
Archives, or commonly sold to the public by it or another agency in
accordance with statutory authority (for example, records currently
available from the Government Printing Office or the National Technical
Information Service). Agency records that are normally freely available
to the general public, such as BBG press releases, are not covered by
the FOIA. Requests for documents from Federal departments, Chairmen of
Congressional committees or subcommittees and court orders are not FOIA
requests.
(d) Referral of requests outside the agency. If you request records
that were created by or provided to us by another Federal department, we
may refer your request to or consult with that department. We may also
refer requests for classified records to the department that classified
them. In cases
[[Page 82]]
of referral, the other department is responsible for processing and
responding to your request under that department's regulation. When
possible, we will notify you when we refer your request to another
department.
(e) Responding to your request--(1) Retrieving records. The Agency
is required to furnish copies of records only when they are in our
possession and control. If we have stored the records you want in a
record retention center, we will retrieve and review them for possible
disclosure. However, the Federal Government destroys many old records,
so sometimes it is impossible to fill requests. The Agency's record
retention policies are set forth in the General Records Schedules of the
National Archives and Records Administration and in BBG's Records
Disposition Schedule, which establish time periods for keeping records
before they may be destroyed.
(2) Furnishing records. (i) The Agency is only required to furnish
copies of records that we have or can retrieve. We are not compelled to
create new records. The Agency will aid requesters by providing records
and information in the form requested, including electronic format, if
we can readily reproduce them in that form or format.
(ii) We may decide to conserve government resources and at the same
time supply the records you need by consolidating information from
various records, in paper form or electronically, rather than copying
them all. If the effort to produce records in electronic format would
significantly interfere with the operations of the Agency, we will
consider the effort to be an unreasonable search.
(iii) The Agency is required to furnish only one copy of a record.
If we are unable to make a legible copy of a record to be released, we
will not attempt to reconstruct it. Rather we will furnish the best copy
possible and note its poor quality in our reply or on the copy.
(iv) If we cannot accommodate your request for form or format, we
will provide responsive, nonexempt information in a reasonably
accessible form.
Sec. 503.3 Availability of agency records.
(a) Release of records. If we have released a record or part of a
record to others in the past, we will ordinarily release it to you also.
This principle does not apply if the previous release was an
unauthorized disclosure. However, we will not release it to you if a
statute forbids this disclosure and we will not necessarily release it
to you if an exemption applies in your situation and did not apply or
applied differently in the previous situation.
(b) Denial of requests. All denials are in writing and describe in
general terms the material withheld and state the reasons for the
denial, including a reference to the specific exemption of the FOIA
authorizing the withholding or deletion. The denial also explains your
right to appeal the decision and it will identify the official to whom
you should send the appeal. Denial letters are signed by the person who
made the decision to deny all or part of the request, unless otherwise
noted.
(c) Unproductive searches. We will make a diligent search for
records to satisfy your request. Nevertheless, we may not be able always
to find the records you want using the information you provided, or they
may not exist. If we advise you that we have been unable to find the
records despite a diligent search, you will nevertheless be provided the
opportunity to appeal the adequacy of the Agency's search. However, if
your request is for records that are obviously not connected with this
Agency or your request has been provided to us in error, a ``no
records'' response will not be considered an adverse action and you will
not be provided an opportunity to appeal.
(d) Appeal of denials. You have the right to appeal a partial or
full denial of your FOIA request. To do so, you must put your appeal in
writing and address it to the official identified in the denial letter.
Your appeal letter must be dated and postmarked within 30 calendar days
from the date of the Agency's denial letter. Because we have some
discretionary authority in deciding whether to release or withhold
records, you may strengthen your appeal by explaining your reasons for
wanting the records. However, you are not required to give any
explanation.
[[Page 83]]
Your appeal will be reviewed by the Agency's Access Appeal Committee
that consists of senior Agency officials. When the Committee responds to
your appeal, that constitutes the Agency's final action on the request.
If the Access Appeal Committee grants your appeal in part or in full, we
will send the records to you promptly or set up an appointment for you
to inspect them. If the decision is to deny your appeal in part or in
full, the final letter will state the reasons for the decision, name the
officials responsible for the decision, and inform you of the FOIA
provisions for judicial review.
Sec. 503.4 Time limits.
(a) General. The FOIA sets certain time limits for us to decide
whether to disclose the records you requested, and to decide appeals. If
we fail to meet the deadlines, you may proceed as if we had denied your
request or your appeal. Since requests may be misaddressed or misrouted,
you should call or write to confirm that we have the request and to
learn its status if you have not heard from us in a reasonable time.
(b) Time allowed. (1) We will decide whether to release records
within 20 working days after your request reaches the appropriate area
office that maintains the records you are requesting. When we decide to
release records, we will actually provide the records at that time, or
as soon as possible after that decision, or let you inspect them as soon
as possible thereafter.
(2) We will decide an appeal within 20 working days after the appeal
reaches the appropriate reviewing official.
(3)(i) The FOIA Officer or appeal official may extend the time
limits in unusual circumstances for initial requests or appeals, up to
10 working days. We will notify you in writing of any extensions.
``Unusual circumstances'' include situations where we: Search for and
collect records from field facilities, records centers or locations
other than the office processing the records; search for, collect, or
examine a great many records in response to a single request; consult
with another office or department that has substantial interest in the
determination of the request; and/or conduct negotiations with
submitters and requesters of information to determine the nature and
extent of non-disclosable proprietary materials.
(ii) If an extra ten days still does not provide sufficient time for
the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
(iii) If you refuse to reasonably limit the scope of your request or
refuse to agree upon a time frame, the Agency will process your case, as
it would have, had no modification been sought. We will make a diligent,
good faith effort to complete our review within the statutory time
frame.
Sec. 503.5 Records available for public inspection.
(a) To the extent that they exist, we will make the following
records of general interest available for you in paper form or
electronically for inspection or copying:
(1) Orders and final opinions, including concurring and dissenting
opinions in adjudications. (See Sec. 503.8(e) of this part for
availability of internal memoranda, including attorney opinions and
advice.)
(2) Statements of policy and interpretations that we have adopted
but which have not been published in the Federal Register.
(3) Administrative staff manuals and instructions to staff that
affect the public. (We will not make available, however, manuals or
instructions that reveal investigative or audit procedures as described
in Sec. 503.8(b) and (g) of this part.)
(4) In addition to such records as those described in this paragraph
(a), we will make available to any person a copy of all other Agency
records, in the format requested, if available, unless we determine that
such records should be withheld from disclosure under subsection (b) of
the Act and Sec. Sec. 503.8 and 503.9 of this part.
(b) Before releasing these records, however, we may delete the names
of people, or information that would identify them, if release would
invade their
[[Page 84]]
personal privacy to a clearly unwarranted degree (See Sec. 503.8(f)).
(c) The Agency's FOIA Guide and Index is available electronically
via the Internet, or you may request a copy of it by mail.
Sec. 503.6 Restrictions on some agency records.
Under the U.S. Information and Educational Exchange Act of 1948 (22
U.S.C. 1461, as amended), the BBG is prohibited from disseminating
within the United States information about the U.S., its people, and its
policies when such materials have been prepared by the Agency for
audiences abroad. This includes films, radio scripts and tapes,
videotapes, books, and similar materials produced by the Agency.
However, this law does provide that upon request, such information shall
be made available at BBG, for examination only, by representatives of
the press, magazines, radio systems and stations, research students or
scholars and available, for examination only, to Members of Congress.
Sec. 503.7 Fees.
(a) Fees to be charged--categories of requests. Paragraphs (a)(1)
though (3) and (b) through (e) of this section explain each category of
request and the type of fees that we will generally charge. However, for
each of these categories, the fees may be limited, waived, or reduced
for the reasons given in paragraph (e) of this section. ``Request''
means asking for records, whether or not you refer specifically to the
Freedom of Information Act (FOIA). Requests from Federal agencies and
court orders for documents are not included within this definition.
``Review'' means, when used in connection with processing records for a
commercial use request, examining the records to determine what
portions, if any, may be withheld, and any other processing that is
necessary to prepare the records for release. It includes only the
examining and processing that are done the first time we analyze whether
a specific exemption applies to a particular record or portion of a
record. It does not include the process of researching or resolving
general legal, or policy issues regarding exemptions. ``Search'' means
looking for records or portions of records responsive to a request. It
includes reading and interpreting a request, and also and line-by-line
examination to identify responsive portions of a document.
(1) Commercial use request. If your request is for a commercial use,
BBG will charge you the costs of search, review and duplication.
``Commercial use'' means that the request is from or on behalf of one
whom seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or of a person
on whose behalf the request is made. Whether a request is for a
commercial use depends on the purpose of the request and how the records
will be used; the identity of the requester (individual, non-profit
corporation, for-profit corporation), or the nature of the records,
while in some cases may indicate the purpose or use is not necessarily
determinative. When a request is made by a representative of the news
media, a purpose of use which supports the requester's news
dissemination function is deemed to be a non-commercial use.
(2) Educational and scientific institutions and news media. If you
are an educational institution or a non-commercial scientific
institution, operated primarily for scholarly or scientific research, or
a representative of the news media, and your request is not for a
commercial use, BBG will charge you only for the duplication of
documents. Also BBG will not charge you the copying costs for the first
100 pages of duplication. ``Educational institution'' means a preschool,
elementary or secondary school, institution of undergraduate or graduate
higher education, or institution of professional or vocational
education. ``Non-commercial scientific institution'' means an
institution that is not operated substantially for purposes of
furthering its own or someone else's business, trade, or profit
interests, and that is operated for purposes of conducting scientific
research whose results are not intended to promote any particular
product or industry. ``Representative of the news media'' means a person
actively gathering news for an entity organized and operated to publish
or broadcast news
[[Page 85]]
to the public. ``News'' means information that is about current events
or that would be of current interest to the public. News media entities
include television and radio broadcasters, publishers of periodicals (to
the extent they publish ``news'') who make their products available for
purchase or subscription by the general public, and entities that may
disseminate news through other media (e.g., electronic dissemination of
text). We will treat freelance journalists as representatives of a news
media entity if they can show a solid basis for expecting publication
through such an entity. A publication contract is such a basis and the
requester's past publication record may show such a basis.
(3) Other requesters. If your request is not the kind described by
paragraph (a)(1) or (a)(2) of this section, then the BBG will charge you
only for search and duplication. Also, we will not charge you for the
first two hours of search time or for the copying costs of the first 100
pages of duplication.
(b) Fees to be charged--general provisions. (1) We may charge search
fees even if the records we find are exempt from disclosure, or even if
we do not find any records at all.
(2) We will not charge you any fee at all if the costs of routine
collection and processing of the fee are likely to equal or exceed the
amount of the fee. We have estimated that cost to be $5.00.
(3) If we determine that you are acting alone or with others to
break down a single request into a series of requests in order to avoid
or reduce the fees charged, we may aggregate all these requests for
purposes of calculating the fees charged.
(4) We will charge interest on unpaid bills beginning on the 31st
day following the day the bill was sent. The accrual of interest will
stop upon receipt of the fee, rather than upon its processing by BBG.
Interest will be at the rate prescribed in section 3717 of Title 32
U.S.C.
(c) Fee schedule--BBG will charge the following fees: (1) Manual
searching for or reviewing of records:
(i) When performed by employees at salary grade GS-1 through GS-8 or
FS-9 through FS-5--an hourly rate of $10.00 will be charged;
(ii) When performed by employees at salary grade GS-9 through GS-13
or FS-5 through FS-2--an hourly rate of $20.00 will be charged;
(iii) When performed by employees at salary grade GS-14 or above or
FS-2 or above--an hourly rate of $36.00 will be charged.
(iv) When a search involves employees at more than one of these
levels, we will charge the appropriate rate for each.
(2) Computer searching and printing. Except in unusual cases, the
cost of computer time will not be a factor in calculating the two free
hours of search time. In those unusual cases, where the cost of
conducting a computerized search significantly detracts from the
Agency's ordinary operations, no more than the dollar cost of two hours
of manual search time shall be allowed. For searches conducted beyond
the first two hours, the Agency shall only charge the direct costs of
conducting such searches.
(3) Photocopying standard size pages--$0.15 per page.
(4) Photocopying odd-size documents (such as punchcards or
blueprints) or reproducing other records (such as tapes)--the actual
cost of operating the machine, plus the actual cost of the materials
used, plus charges for the time spent by the operator, at the rates
given in paragraph (c)(1) of this section.
(5) Certifying that records are true copies--this service is not
required by the FOIA. If we agree to provide it, we will charge $10.00
per certification.
(6) Sending records by express mail, certified mail, or other
special methods. This service is not required by the FOIA. If we agree
to provide it, we will charge our actual cost.
(7) Performing any other special service that you request and to
which we agree--actual cost of operating any machinery, plus actual cost
of any materials used, plus charges for the time of our employees, at
the rates given in paragraph (c)(1) of this section.
(d) Procedures for assessing and collecting fees--(1) Agreement to
pay. We generally assume that when you request records you are willing
to pay
[[Page 86]]
the fees we charge for services associated with your request. You may
specify a limit on the amount you are willing to spend. We will notify
you if it appears that the fees will exceed the limit and ask whether
you nevertheless want us to proceed with the search.
(2) Advance payment. If you have failed to pay previous bills in a
timely manner, or if our initial review of your request indicates that
we will charge you fees exceeding $250.00, we will require you to pay
your past due fees and/or the estimated fees, or a deposit, before we
start searching for the records you want, or before we send them to you.
In such cases, the administrative time limits as described in Sec.
503.4(b), will begin only after we come to an agreement with you over
payment of fees, or decide that a fee waiver or reduction is
appropriate.
(e) Waiver or reduction of fees. We will waive or reduce the fees we
would otherwise charge if disclosure of the information meets both of
the following tests (paragraphs (e)(1) and (e)(2) of this section):
(1) It is in the public interest because it is likely to contribute
significantly to public understanding of government operations or
activities, regardless of any other public interest it may further. In
making this determination, we may consider:
(i) Whether the requester is in a position to contribute to public
understanding;
(ii) Whether the requester has such knowledge or expertise as may be
necessary to understand the information; and
(iii) Whether the requester's intended use of the information would
be likely to disseminate the information among the public.
(2) It is not primarily in the commercial interest of the requester.
Commercial interests include interests relating to business, trade, and
profit. Not only profit-making corporations have commercial interests;
so do nonprofit corporations, individuals, unions, and other
associations.
(3) You must make your request for a waiver or reduction at the same
time you make your request for records. Only the FOIA Officer may make
the decision whether to waive or reduce the fees. If we do not
completely grant your request for a waiver or reduction, the denial
letter will designate the appeal official.
Sec. 503.8 Exemptions.
Section 552(b) of the Freedom of Information Act contains nine
exemptions to the mandatory disclosure of records. These exemptions and
their application by the Agency are described below. In some cases, more
than one exemption may apply to the same document. This section does not
itself authorize the giving of any pledge of confidentiality by any
officer or employee of the Agency.
(a) Exemption one--National defense and foreign policy. We are not
required to release records that are specifically authorized under
criteria established by an Executive Order to be kept secret in the
interest of national defense or foreign policy and are in fact properly
classified according to such Executive Order. Executive Order No. 12958
(1995) provides for such classification. When the release of certain
records may adversely affect U.S. relations with foreign countries, we
usually consult with officials with knowledge of those countries and/or
with officials of the Department of State. We may also have in our
possession records classified by another agency. If we do, we may
consult with that agency or may refer your request to that agency for
their direct response to you. If possible, we will notify you that we
have made such a referral.
(b) Exemption two--Internal personnel rules and practices. We are
not required to release records that are related solely to the internal
personnel rules and practices of an agency. We may withhold routine
internal agency procedures such as guard schedules and luncheon periods.
We may also withhold internal records the release of which would help
some persons circumvent the law or Agency regulations.
(c) Exemption three--Records exempted by other statutes. We are not
required to release records if another statute specifically allows us to
withhold them. Another statute may be used only if it absolutely
prohibits disclosure or if it
[[Page 87]]
sets forth criteria identifying particular types of material to be
withheld (for example, the statute discussed in Sec. 503.6).
(d) Exemption four--Trade secrets and confidential commercial or
financial information. We will withhold trade secrets and commercial or
financial information that is obtained from a person and is privileged
or confidential.
(1) Trade secrets: A trade secret is a secret, commercially valuable
plan, formula, process, or device that is used for the making,
preparing, compounding, or processing of trade commodities and that can
be said to be the end product of either innovation or substantial
effort. A direct relationship is necessary between the trade secret and
the productive process.
(2) Commercial or financial information, obtained from a person, and
is privileged or confidential.
(i) Information is ``commercial or financial'' if it relates to
businesses, commerce, trade, employment, profits, or finances (including
personal finances).
(ii) Information is obtained from someone outside the Federal
Government or from someone within the Government who has a commercial or
financial interest in the information. ``Person'' includes an
individual, partnership, corporation, association, state or foreign
government, or other organization. Information is not ``obtained from a
person'' if it is generated by BBG or another Federal agency.
(iii) Information is ``privileged'' if it would ordinarily be
protected from disclosure in civil discovery by a recognized evidentiary
privilege, such as the attorney-client privilege, or the work-product
privilege. Information may be privileged for this purpose under a
privilege belonging to a person outside the Government, unless the
providing of the information to the Government rendered the information
no longer protectible in civil discovery.
(iv) Information is ``confidential'' if it meets one of the
following tests:
(A) Disclosure may impair the Government's ability to obtain
necessary information in the future;
(B) Disclosure would substantially harm the competitive position of
the person who submitted the information;
(C) Disclosure would impair other Government interests, such as
program effectiveness and compliance; or
(D) Disclosure would impair other private interests, such as an
interest in controlling availability of intrinsically valuable records,
which are sold in the market by their owner.
(3) Designation of certain confidential information. A person who
submits records to the Government may designate part or all of the
information in such records as exempt from disclosure under Exemption
four. The person may make this designation either at the time the
records are submitted to the Government or within a reasonable time
thereafter. The designation must be in writing. The legend prescribed by
a request for proposal or request for quotations according to any agency
regulation establishing a substitute for the language is sufficient but
not necessary for this purpose. Any such designation will expire ten
years after the records were submitted to the Government.
(4) Predisclosure notification. The procedures in this paragraph
apply to records that were submitted to the Government and where we have
substantial reason to believe that information in the records could
reasonably be considered exempt under Exemption four. Certain exceptions
to these procedures are stated in paragraph (d)(5) of this section.
(i) When we receive a request for such records and we determine that
we may be required to disclose them, we will make reasonable efforts to
notify the submitter about these facts. The notice will inform the
submitter about the procedures and time limits for submission and
consideration of objections to disclosure. If we must notify a large
number of submitters, we may do this by posting or publishing a notice
in a place where the submitters are reasonably likely to become aware of
it.
(ii) The submitter has ten (10) working days from receipt of the
notice to object to disclosure of any part of the records and to state
all bases for its objections.
(iii) We will give consideration to all bases that have been timely
stated by the submitter. If we decide to disclose the records and the
submitter still does
[[Page 88]]
not agree, we will send a written notice to the submitter stating
briefly why we did not sustain its objections and we will provide a copy
of the records as we intend to release them. The notice will state that
we will disclose the records five (5) working days after the submitter
receives the notice unless we are ordered by a United States District
Court not to release them.
(iv) When a requester files suit under the FOIA to obtain records
covered by this paragraph, we will promptly notify the submitter.
(v) Whenever we send a notice to a submitter under paragraph
(d)(4)(i) of this section, we will notify you that we are giving the
submitter a notice and an opportunity to object.
(5) Exceptions to predisclosure notification. The notice
requirements in paragraph (d)(4) of this section do not apply in the
following situations:
(i) We decide not to disclose the records;
(ii) The information has previously been published or made generally
available;
(iii) We have already notified the submitter of previous requests
for the same records and have come to an understanding with that
submitter about the records;
(iv) Disclosure is required by a statute other than the FOIA;
(v) Disclosure is required by a regulation, issued after notice and
opportunity for public comment that specifies narrow categories of
records that are to be disclosed under the FOIA. In this case a
submitter may still designate records as described in paragraph (d)(3)
of this section and in exceptional cases, at our discretion, may follow
the notice procedures in paragraph (d)(4) of this section;
(vi) The designation appears to be obviously frivolous, but in this
case we will still give the submitter the written notice required by
paragraph (d)(4)(iii) of this section (although this notice need not
explain our decision or include a copy of the records); and
(vii) We withhold the information because another statute requires
its withholding.
(e) Exemption five--Internal memoranda. This exemption covers
internal Government communications and notes that fall within a
generally recognized evidentiary privilege. Internal Government
communications include an agency's communications with an outside
consultant or other outside person, with a court, or with Congress, when
those communications are for a purpose similar to the purpose of
privileged intra-agency communications. Some of the most common
applicable privileges are:
(1) The deliberative process privilege. This privilege protects
predecisional deliberative communications. A communication is protected
under this privilege if it was made before a final decision was reached
on some question of policy and if it expressed recommendations or
opinions on that question. The purpose of this privilege is to prevent
injury to the quality of the agency decision making process by
encouraging open and frank internal policy discussions, by avoiding
premature disclosure of policies not yet adopted, and by avoiding the
public confusion that might result from disclosing reasons that were not
in fact the ultimate grounds for an agency's decision. This privilege
continues to protect pre-decisional documents even after a decision is
made. We will release purely factual material in a deliberative document
unless that material is otherwise exempt. However, purely factual
material in a deliberative document is within this privilege if:
(i) It is inextricably intertwined with the deliberative portions so
that it cannot reasonably be segregated; or
(ii) It would reveal the nature of the deliberative portions, or
(iii) Its disclosure would in some other way make possible an
intrusion into the decision making process.
(2) Attorney-client privilege. This privilege protects confidential
communications between a lawyer and an employee or agent of the
Government where an attorney-client relationship exists (for example,
where the lawyer is acting as attorney for the agency and the employee
is communicating on behalf of the agency) and where the employee has
communicated information to the attorney in confidence in order to
obtain legal advice or assistance,
[[Page 89]]
and/or when the attorney has given advice to the client.
(3) Attorney work product privilege. This privilege protects
documents prepared by or for an agency, or by or for its representative
(usually BBG attorneys) in anticipation of litigation or for trial. It
includes documents prepared for purposes of administrative adjudications
as well as court litigation. It includes factual material in such
documents as well as material revealing opinions and tactics. The
privilege continues to protect the documents even after the litigation
is closed.
(f) Exemption six--Clearly unwarranted invasion of personal privacy.
We may withhold personnel, medical, and similar files, and personal
information about individuals if disclosure would constitute a clearly
unwarranted invasion of personal privacy.
(1) Balancing test. In deciding whether to release records that
contain personal or private information about someone else to a
requester, we weigh the foreseeable harm of invading that individual's
privacy against the public benefit that would result from the release of
the information. In our evaluation of requests for records, we attempt
to guard against the release of information that might involve a
violation of personal privacy by a requester being able to ``piece
together items'' or ``read between the lines'' information that would
normally be exempt from mandatory disclosure.
(2) Information frequently withheld. We frequently withhold such
information as home addresses, home telephone numbers, ages, minority
group status, social security numbers, individual's benefits, earning
records, leave records, etc.
(g) Exemption seven--Law enforcement. We are not required to release
information or records that the Government has compiled for law
enforcement purposes. The records may apply to actual or potential
violations of either criminal or civil laws or regulations. We can
withhold these records only to the extent that releasing them would
cause harm in at least one of the following situations:
(1) Enforcement proceedings. We may withhold information when
release could reasonably be expected to interfere with prospective or
ongoing law enforcement proceedings, investigations of fraud and
mismanagement, employee misconduct, and civil rights violations may fall
into this category. In certain cases, we may refuse to confirm or deny
the existence of records that relate to violations in order not to
disclose that an investigation is in progress or may be conducted.
(2) Fair trial or impartial adjudication. We may withhold records
when release would deprive a person of a fair trial or an impartial
adjudication because of prejudicial publicity.
(3) Personal privacy. We are careful not to disclose information
that could reasonably be expected to constitute an unwarranted invasion
of personal privacy. When a name surfaces in an investigation, that
person is likely to be vulnerable to innuendo, rumor, harassment, or
retaliation.
(4) Confidential sources and information. We may withhold records
whose release could reasonably be expected to disclose the identity of a
confidential source of information. A confidential source may be an
individual; a state, local or foreign Government agency; or any private
organization. The exemption applies whether the source provides
information under an express promise of confidentiality or under
circumstances from which such an assurance could be reasonably inferred.
Also, where the record or information in it has been compiled by a
criminal law enforcement authority conducting a criminal investigation
or by an agency conducting a lawful national security investigation, the
exemption also protects all information supplied by a confidential
source. Also protected from mandatory disclosure is any information
which, if disclosed, could reasonably be expected to jeopardize the
system of confidentiality that assures a flow of information from
sources to investigatory agencies.
(5) Techniques and procedures. We may withhold records reflecting
special techniques or procedures of investigation or prosecution not
otherwise generally known to the public. In some cases, it is not
possible to describe even in general terms those techniques without
disclosing the very material to
[[Page 90]]
be withheld. We may also withhold records whose release would disclose
guidelines for law enforcement investigations or prosecutions if this
disclosure could reasonably be expected to create a risk that someone
could circumvent requirements of law or of regulation.
(6) Life and physical safety. We may withhold records whose
disclosure could reasonably be expected to endanger the life or physical
safety of any individual. This protection extends to threats and
harassment as well as to physical violence.
(h) Exemptions eight and nine--Records on financial institutions and
records on wells. (1) Exemption eight permits us to withhold records
about regulation or supervision of financial institutions.
(2) Exemption nine permits the withholding of geological and
geophysical information and data, including maps concerning wells.
Sec. 503.9 Electronic records.
(a) Introduction. This section applies to all records of the BBG,
including all of its worldwide operations. Congress enacted the FOIA to
require Federal agencies to make records available to the public through
public inspections and at the request of any person for any public or
private use. The increase in the Government's use of computers enhances
the public's access to Government information. This section addresses
and explains how records will be reviewed and released when the records
are maintained in electronic format. Documentation not previously
subject to the FOIA when maintained in a non-electronic format is not
made subject to FOIA by this law.
(b) Definitions--(1) Compelling need. Obtaining records on an
expedited basis because of an imminent threat to the life or physical
safety of an individual, or urgently needed by an individual primarily
engaged in disseminating information to the public concerning actual or
alleged Federal Government activities.
(2) Discretionary disclosure. Records or information normally exempt
from disclosure will be released whenever it is possible to do so
without reasonably foreseeable harm to any interest protected by an FOIA
exemption.
(3) Electronic reading room. The room provided which makes
electronic records available.
(c) Electronic format of records. (1) Materials such as agency
opinions and policy statements (available for public inspection and
copying) will be available electronically by accessing the BBG's Home
Page via the Internet at http://www.ibb.gov. To set up an appointment to
view such records in hard copy or to access the Internet via the BBG's
computer, please contact the FOIA/Privacy Act Officer at (202) 260-4404.
(2) We will make available for public inspection and copying, both
electronically via the Internet and in hard copy, those records that
have been previously released in response to FOIA requests, when we
determine the records have been or are likely to be the subject of
future requests.
(3) We will provide both electronically through our Internet address
and in hard copy a ``Guide'' on how to make an FOIA request, and an
Index of all Agency information systems and records that may be
requested under the FOIA.
(4) We may delete identifying details when we publish or make
available the index and copies of previously-released records to prevent
a clearly unwarranted invasion of personal privacy.
(i) We will indicate the extent of any deletions made from the place
the deletion was made, if possible.
(ii) We will not reveal information about deletions if such
disclosure would harm an interest protected by an exemption.
(d) Honoring form or format requests. We will aid requesters by
providing records and information in the form requested, including
electronic format, if we can readily reproduce them in that form or
format. However, if we cannot accommodate you, we will provide
responsive, nonexempt information in a reasonably accessible form.
(1) We will make a reasonable effort to search for records kept in
an electronic format. However, if the effort would significantly
interfere with the operations of the agency or the agency's use of its
computers, we will consider the effort to be unreasonable.
[[Page 91]]
(2) We need not create documents that do not exist, but computer
records found in a database rather than in a file cabinet may require
the application of codes or some form of programming to retrieve the
information. This application of codes or programming of records will
not amount to the creation of records.
(3) Except in unusual cases, the cost of computer time will not be a
factor in calculating the two free hours of search time available under
Sec. 503.7. In those unusual cases, where the cost of conducting a
computerized search significantly detracts from the agency's ordinary
operations, no more than the dollar cost of two hours of manual search
time shall be allowed. For searches conducted beyond the first two
hours, the agency shall only charge the direct costs of conducting such
searches.
(e) Technical feasibility of redacting non-releasable material. We
will make every effort to indicate the place on the record where a
redaction of non-releasable material is made, and an FOIA citation
noting the applicable exemption for the deletion will also be placed at
the site. If unable to do so, we will notify you of that fact.
(f) Ensuring timely response to request. We will make every attempt
to respond to FOIA requests within the prescribed 20 working-day time
limit. However, processing some requests may require additional time in
order to properly screen material against the inadvertent disclosure of
material covered by the exemptions.
(1) Multitrack first-in first-out processing. (i) Because the agency
expects to be able to process its requests without a backlog of cases,
BBG will not institute a multitract system. Those cases that may be
handled easily, because they require only a few documents or a simple
answer, will be handled immediately by an FOIA specialist.
(ii) If you wish to qualify for faster processing, you may limit the
scope of your request so that we may respond more quickly.
(2) Unusual circumstances. (i) The agency may extend for a maximum
of ten working days the statutory time limit for responding to an FOIA
request by giving notice in writing as to the reason for such an
extension. The reasons for such an extension may include: the need to
search for and collect requested records from multiple offices; the
volume of records requested; and, the need for consultation with other
components within the agency.
(ii) If an extra ten days still does not provide sufficient time for
the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
(iii) If you refuse to reasonably limit the scope of your request or
refuse to agree upon a time frame, the agency will process your case, as
it would have, had no modification been sought. We will make a diligent,
good-faith effort to complete our review within the statutory time
frame.
(3) Grouping of requests. We will group together requests that
clearly involve related material that should be considered as a single
request.
(i) If you make multiple or related requests for similar material
for the purpose of avoiding costs, we will notify you that we are
grouping together your requests, and the reasons why.
(ii) Multiple or related requests may also be grouped, such as those
involving requests and schedules but you will be notified in advance if
we intend to do so.
(g) Time periods for agency consideration of requests--(1) Expedited
access. We will authorize expedited access to requesters who show a
compelling need for access, but the burden is on the requester to prove
that expedition is appropriate. We will determine within ten days
whether or not to grant a request for expedited access and we will
notify the requester of our decision.
(2) Compelling need for expedited access. Failure to obtain the
records within an expedited deadline must pose an imminent threat to an
individual's life or physical safety; or the request must be made by
someone primarily engaged in disseminating information, and who has an
urgency to inform the
[[Page 92]]
public about actual or alleged Federal Government activity.
(3) How to request expedited access. We will be required to make
factual and subjective judgments about the circumstances cited by
requesters to qualify them for expedited processing. To request
expedited access, your request must be in writing and it must explain in
detail your basis for seeking expedited access. The categories for
compelling need are intended to be narrowly applied:
(i) A threat to an individual's life or physical safety. A threat to
an individual's life or physical safety should be imminent to qualify
for expedited access to the records. You must include the reason why a
delay in obtaining the information could reasonably be foreseen to cause
significant adverse consequences to a recognized interest.
(ii) Urgency to inform. The information requested should pertain to
a matter of a current exigency to the American public, where delay in
response would compromise a significant recognized interest. The person
requesting expedited access under an ``urgency to inform,'' must be
primarily engaged in the dissemination of information. This does not
include individuals who are engaged only incidentally in the
dissemination of information. ``Primarily engaged'' requires that
information dissemination be the main activity of the requester. A
requester only incidentally engaged in information dissemination,
besides other activities, would not satisfy this requirement. The
public's right to know, although a significant and important value,
would not by itself be sufficient to satisfy this standard.
(4) Estimation of matter denied. The agency will try to estimate the
volume of any denied material and provide the estimate to the requester,
unless doing so would harm an interest protected by an exemption.
(h) Computer redaction. The agency will identify the location of
deletions in the released portion of the records, and where
technologically possible, will show the deletion at the place on the
record where the deletion was made, unless including that indication
would harm an interest protected by an exemption.
(i) Annual report on FOIA activities. Reports on FOIA activities are
submitted each fiscal year to the Department of Justice, and are due by
February 1 of every year. The BBG's report will be available both in
hard copy and through the Internet. The Department of Justice will also
report all Federal agency FOIA activity through electronic means.
(j) Reference materials and guides. The agency has available in hard
copy, and electronically through the Internet, a guide for requesting
records under the FOIA, and an index and description of all major
information systems of the agency. The guide is a simple explanation of
what the FOIA is intended to do, and how you can use it to access BBG
records. The Index explains the types of records that may be requested
from the Agency through FOIA requests and why some records cannot, by
law, be made available by the BBG.
PART 504_TESTIMONY BY BBG EMPLOYEES, PRODUCTION OF OFFICIAL RECORDS,
AND DISCLOSURE OF OFFICIAL INFORMATION IN LEGAL PROCEEDINGS--Table of
Contents
Subpart A_General Provisions
Sec.
504.1 Scope and purpose.
504.2 Applicability.
504.3 Definitions.
Subpart B_Demands or Requests for Testimony and Production of Documents
504.4 General prohibition.
504.5 Factors the BBG will consider.
504.6 Filing requirements for litigants seeking documents or testimony.
504.7 Service of requests or demands.
504.8 Processing requests or demands.
504.9 Final determinations.
504.10 Restrictions that apply to testimony.
504.11 Restrictions that apply to released records.
504.12 Procedure when a decision is not made prior to the time a
response is required.
504.13 Procedure in the event of an adverse ruling.
Subpart C_Schedule of Fees
504.14 Fees.
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Subpart D_Penalties
504.15 Penalties
Authority: 22 U.S.C. 6204.
Source: 72 FR 19798, Apr. 20, 2007, unless otherwise noted.
Subpart A_General Provisions
Sec. 504.1 Scope and purpose.
(a) These regulations in this subpart establish policy, assign
responsibilities and prescribe procedures with respect to:
(1) The production or disclosure of official information or records
by BBG employees, and
(2) The testimony of current and former BBG employees, relating to
official information, official duties, or the BBG's records, in
connection with federal or state litigation in which the BBG is not a
party.
(b) The BBG intends these provisions to:
(1) Conserve the time of BBG employees for conducting official
business;
(2) Minimize the involvement of BBG employees in issues unrelated to
BBG's mission;
(3) Maintain the impartiality of BBG employees in disputes between
private litigants; and
(4) Protect sensitive, confidential information and the deliberative
processes of the BBG.
(c) In providing for these requirements, the BBG does not waive the
sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of BBG.
It does not create any right or benefit, substantive or procedural, that
a party may rely upon in any legal proceeding against the United States.
Sec. 504.2 Applicability.
This part applies to demands and requests to current and former
employees for factual or expert testimony relating to official
information or official duties or for production of official records or
information, in legal proceedings in which the BBG is not a named party.
This part does not apply to:
(a) Demands upon or requests for a BBG employee to testify as to
facts or events that are unrelated to his or her official duties or that
are unrelated to the functions of the BBG;
(b) Demands upon or requests for a former BBG employee to testify as
to matters in which the former employee was not directly or materially
involved while at the BBG;
(c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
(d) Congressional demands and requests for testimony, records or
information.
Sec. 504. 3 Definitions.
The following definitions apply to this part:
(a) Demand means an order, subpoena, or other command of a court or
other competent authority for the production, disclosure, or release of
records or for the appearance and testimony of a BBG employee in a legal
proceeding.
(b) General Counsel means the General Counsel of the BBG or a person
to whom the General Counsel has delegated authority under this part.
(c) Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
(d) BBG means the Broadcasting Board of Governors.
(e) BBG employee means:
(1) Any current or former employee of the BBG.
(2) This definition does not include persons who are no longer
employed by the BBG and who agree to testify about general matters,
matters available to the public, or matters with which they had no
specific involvement or responsibility during their employment with the
BBG.
(f) Records or official records and information means all
information in the custody and control of the BBG, relating to
information in the custody and control of the BBG, or acquired by a BBG
employee in the performance of his or her official duties or because of
his or her official status, while the individual was employed by the
BBG.
[[Page 94]]
(g) Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court or other competent authority.
(h) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Subpart B_Demands or Requests for Testimony and Production of Documents
Sec. 504.4 General prohibition.
(a) In any United States federal, state, and local proceeding or
administrative action, or proceeding or administrative action conducted
in a foreign country, in which the BBG is not a party, no BBG employee
shall, in response to a demand or request for official records or
information, furnish or produce documents or testimony as to any
material contained in BBG files, any information relating to or based
upon material contained in BBG files, or any information or material
acquired as part of the performance of that person's official duties (or
because of that person's official status) without the prior written
approval of the General Counsel.
(b) Whenever a request or demand for information is made upon a BBG
employee, the employee, wherever located, shall immediately prepare a
report that specifically describes the testimony or documents sought and
immediately notify the General Counsel. The BBG employee shall then
await instructions from the General Counsel concerning a response to the
request or demand. The failure of any BBG employee to follow the
procedures specified in this subpart neither creates nor confers any
rights, privileges, or benefits on any person or party.
Sec. 504.5 Factors the BBG will consider.
The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response to
a demand or request. Among the relevant factors that the General Counsel
may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(c) Allowing such testimony or production of records would assist or
hinder the BBG in performing its statutory duties;
(d) Allowing such testimony or production of records would be in the
best interest of the BBG or the United States;
(e) The records or testimony can be obtained from other sources;
(f) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand or request
arose;
(g) Disclosure would violate a statute, Executive Order or
regulation;
(h) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential or financial
information, otherwise protected information, or information which would
otherwise be inappropriate for release;
(i) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights or national security interests;
(j) Disclosure would result in the BBG appearing to favor one
litigant over another;
(k) The request was served before the demand;
(l) A substantial Government interest is implicated;
(m) The demand or request is within the authority of the party
making it; and
(n) The demand or request is sufficiently specific to be answered
and/or can be limited to information to that which would be consistent
with the factors specified herein.
[[Page 95]]
Sec. 504.6 Filing requirements for litigants seeking documents or
testimony.
A litigant must comply with the following requirements when filing a
request for official records and information or testimony under this
subpart. A request should be filed before a demand.
(a) The request must be in writing and must be submitted to the
General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal proceeding, docket number, and name and
address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth the
assertions in the case and any other pleading or document necessary to
show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the testimony
or records sought;
(4) A statement as to how the need for the information outweighs any
need to maintain the confidentiality of the information and outweighs
the burden on the BBG to produce the records or provide testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than an BBG employee, such as a retained
expert;
(6) If testimony is requested, the intended use of the testimony,
and a showing that no document could be provided and used in lieu of
testimony;
(7) A description of all prior decisions, orders, or pending motions
in the case that bear upon the relevance of the requested records or
testimony;
(8) The name, address, and telephone number of counsel to each party
in the case; and
(9) An estimate of the amount of time that the requester and other
parties will require for each BBG employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The BBG reserves the right to require additional information to
complete the request where appropriate.
(d) The request should be submitted at least 30 days before the date
that records or testimony is required. Requests submitted in less than
30 days before records or testimony is required must be accompanied by a
written explanation stating the reasons for the late request and the
reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General Counsel
to make an informed decision may serve as the basis for a determination
not to comply with the request.
(f) The request should state that the requester will provide a copy
of the BBG employee's statement free of charge and that the requester
will permit the BBG to have a representative present during the
employee's testimony.
Sec. 504.7 Service of requests or demands.
Requests or demands for official records or information or testimony
under this Subpart must be served on the General Counsel, BBG, 330
Independence Ave., SW., Washington, DC 20237 by mail or fax at (202)
203-4585 and clearly marked ``Part 504--Request for Testimony or
Official Records in Legal Proceedings.''
Sec. 504.8 Processing requests or demands.
(a) After receiving service of a request or demand for testimony,
the General Counsel will review the request and, in accordance with the
provisions of this Subpart, determine whether, or under what conditions,
to authorize the employee to testify on matters relating to official
information and/or produce official records and information.
(b) Absent exigent circumstances, the BBG will issue a determination
within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure
described by this Subpart where a waiver is considered necessary to
promote a significant interest of the BBG or the United States, or for
other good cause.
[[Page 96]]
(d) Certification (authentication) of copies of records. The BBG may
certify that records are true copies in order to facilitate their use as
evidence. If a requester seeks certification, the requester must request
certified copies from the BBG at least 30 days before the date they will
be needed. The request should be sent to the BBG General Counsel.
Sec. 504.9 Final determinations.
The General Counsel makes the final determination on demands or
requests to employees for production of official records and information
or testimony in litigation in which the BBG is not a party. All final
determinations are within the sole discretion of the General Counsel.
The General Counsel will notify the requester and, when appropriate, the
court or other competent authority of the final determination, the
reasons for the grant or denial of the request, and any conditions that
the General Counsel may impose on the release of records or information,
or on the testimony of an BBG employee. The General Counsel's decision
exhausts administrative remedies for discovery of the information.
Sec. 504.10 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on the
testimony of BBG employees including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other parties to the legal
proceeding to agree that the transcript of the testimony will be kept
under seal;
(3) Requiring that the transcript will be used or made available
only in the particular legal proceeding for which testimony was
requested. The General Counsel may also require a copy of the transcript
of testimony at the requester's expense.
(b) The BBG may offer the employee's written declaration in lieu of
testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not:
(1) Disclose confidential or privileged information; or
(2) For a current BBG employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's official
duties or the functions of the BBG unless testimony is being given on
behalf of the United States (see also 5 CFR 2635.805).
(d) The scheduling of an employee's testimony, including the amount
of time that the employee will be made available for testimony, will be
subject to the BBG's approval.
Sec. 504.11 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on the
release of official records and information, including the requirement
that parties to the proceeding obtain a protective order or execute a
confidentiality agreement to limit access and any further disclosure.
The terms of the protective order or of a confidentiality agreement must
be acceptable to the General Counsel. In cases where protective orders
or confidentiality agreements have already been executed, the BBG may
condition the release of official records and information on an
amendment to the existing protective order or confidentiality agreement.
(b) If the General Counsel so determines, original BBG records may
be presented for examination in response to a request, but they may not
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official BBG records, nor may they be
marked or altered. In lieu of the original records, certified copies may
be presented for evidentiary purposes.
Sec. 504.12 Procedure when a decision is not made prior to the time a
response is required.
If a response to a demand or request is required before the General
Counsel can make the determination referred to in Sec. 504.9, the
General Counsel, when necessary, will provide the court or other
competent authority with a copy of this part, inform the court or other
competent authority that the request is being reviewed, provide an
estimate
[[Page 97]]
as to when a decision will be made, and seek a stay of the demand or
request pending a final determination.
Sec. 504.13 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay a demand or
request, the employee upon whom the demand or request is made, unless
otherwise advised by the General Counsel, will appear, if necessary, at
the stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
Subpart C_Schedule of Fees
Sec. 504.14 Fees.
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a reasonable
estimate of the costs to the BBG.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the request, and expenses generated by materials
and equipment used to search for, produce, and copy the responsive
information. Costs for employee time will be calculated on the basis of
the hourly pay of the employee (including all pay, allowances, and
benefits). Fees for duplication will be the same as those charged by the
BBG in its Freedom of Information Act regulations at 22 CFR Part 503.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon the
rule of the Federal district court closest to the location where the
witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will
include cost of time spent by the witness to prepare for testimony, in
travel and for attendance in the legal proceeding, plus travel costs.
(d) Payment of fees. A requester must pay witness fees for current
BBG employees and any record certification fees by submitting to the
General Counsel a check or money order for the appropriate amount made
payable to the Treasury of the United States. In the case of testimony
of former BBG employees, the requester must pay applicable fees directly
to the former BBG employee in accordance with 28 U.S.C. 1821 or other
applicable statutes.
(e) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(f) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.
Subpart D_Penalties
Sec. 504.15 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the BBG, or as ordered by a Federal court after the BBG
has had the opportunity to be heard, may face penalties as provided in
any applicable enforcement statute.
(b) A current BBG employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action and, if done for a valuable consideration, may
subject that person to criminal prosecution.
PART 505_PRIVACY ACT REGULATION--Table of Contents
Sec.
505.1 Purpose and scope.
505.2 Definitions.
505.3 Procedures for requests.
505.4 Requirements and identification for making requests.
505.5 Disclosure of information.
505.6 Medical records.
505.7 Correction or amendment of record.
505.8 Agency review of requests for changes.
505.9 Review of adverse agency determination.
505.10 Disclosure to third parties.
505.11 Fees.
505.12 Civil remedies and criminal penalties.
505.13 General exemptions (Subsection (j)).
505.14 Specific exemptions (Subsection (k)).
505.15 Exempt systems of records used.
[[Page 98]]
Authority: Pub. L. 93-579, 88 Stat. 1897; 5 U.S.C. 552a.
Source: 67 FR 8875, Feb. 27, 2002, unless otherwise noted.
Sec. 505.1 Purpose and scope.
The Broadcasting Board of Governors (BBG) will protect individuals'
privacy from misuses of their records, and grant individuals access to
records concerning them which are maintained by the Agency's domestic
and overseas offices, consistent with the provisions of Public Law 93-
579, 88 Stat. 1897; 5 U.S.C. 552a, the Privacy Act of 1974, as amended.
The Agency has also established procedures to permit individuals to
amend incorrect records, to limit the disclosure of personal information
to third parties, and to limit the number of sources of personal
information. The Agency has also established internal rules restricting
requirements of individuals to provide social security account numbers.
Sec. 505.2 Definitions.
(a) Access Appeal Committee (AAC). The body established by and
responsible to the Broadcasting Board for reviewing appeals made by
individuals to amend records held by the Agency.
(b) Agency, BBG, our, we or us. The BBG, its offices, divisions,
branches and its worldwide operations.
(c) Amend. To make a correction to or expunge any portion of a
record about an individual which that individual believes is not
accurate, relevant, timely or complete.
(d) Individual or you. A citizen of the United States or an alien
lawfully admitted for permanent residence.
(e) Maintain. Collect, use, store, disseminate or any combination of
these record keeping functions; exercise of control over and hence
responsibility and accountability for systems of records.
(f) Record. Any information maintained by the Agency about an
individual that can be reproduced, including finger or voice prints and
photographs, and which is retrieved by that particular individual's name
or personal identifier, such as a social security number.
(g) Routine use. With respect to the disclosure of a record, the use
of such record for a purpose, which is compatible with the purpose for
which it was collected. The common ordinary purposes for which records
are used and all of the proper and necessary uses even if any such uses
occur infrequently.
(h) Statistical record. A record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual, except as provided in 12 U.S.C.8.
(i) System of records. A group of records under the maintenance and
control of the Agency from which information is retrieved by the name or
personal identifier of the individual.
(j) Personnel record. Any information about an individual that is
maintained in a system of records by the Agency that is needed for
personnel management or processes such as staffing, employee
development, retirement, grievances and appeals.
(k) Worldwide Operations. Any of the foreign service establishments
of the Agency.
Sec. 505.3 Procedures for requests.
(a) The agency will consider all written requests received from an
individual for records pertaining to herself/himself as a request made
under the Privacy Act of 1974, as amended (5 U.S.C. 552a) whether or not
the individual specifically cites the Privacy Act when making the
request.
(b) All requests under the Privacy Act should be directed to the
FOIA/Privacy Act Office, Office of the General Counsel, Broadcasting
Board of Governors, Suite 3349, 330 Independence Avenue, SW, Washington,
DC 20237, which will coordinate the search of all systems of records
specified in the request. Requests should state name, date of birth, and
social security number.
(c) Requests directed to any of the Agency's worldwide
establishments which involve routine unclassified, administrative and
personnel records available only at those establishments may be released
to the individual by the establishment if it determines that such a
release is authorized by the Privacy Act. All other requests shall be
submitted by the establishment to the
[[Page 99]]
FOIA/Privacy Act Office, Office of the General Counsel, Broadcasting
Board of Governors, Suite 3349, 330 Independence Avenue, SW, Washington,
DC 20237, and the individual shall be so notified of this section in
writing, when possible.
(d) In those instances where an individual requests records
pertaining to herself/himself, as well as records pertaining to another
individual, group or some other category of the Agency's records, only
that portion of the request which pertains to records concerning the
individual will be treated as a Privacy Act request. The remaining
portions of such a request will be processed as a Freedom of Information
Act request and sent to the office noted in paragraph (b) of this
section.
Sec. 505.4 Requirements and identification for making requests.
(a) When you seek access to Agency records, you may present your
written request, fax it to (202) 260-4394 or mail it to the FOIA/Privacy
Act Office, Office of the General Counsel, Broadcasting Board of
Governors, Suite 3349, 330 Independence Avenue, SW, Washington, DC
20237. The FOIA/Privacy Act Office may be visited between the hours of 9
a.m. and 3 p.m., Monday through Friday, except for legal holidays.
(b) When you seek access to Agency records, you will be requested to
present identification. You must state your full name, date of birth and
social security number. You must also include your present mailing
address and zip code, and if possible, a telephone number.
(c) When signing a statement confirming your identity, you should
understand that knowingly and willfully seeking or obtaining access to
records about another person under false pretenses is punishable by a
fine of up to $5,000.
Sec. 505.5 Disclosure of information.
(a) In order to locate the system of records that you believe may
contain information about you, you should first obtain a copy of the
Agency's Notice of Systems of Records. By identifying a particular
record system and by furnishing all the identifying information
requested by that record system, it would enable us to more easily
locate those records which pertain to you. At a minimum, any request
should include the information specified in Sec. 505.4(b).
(b) In certain circumstances, it may be necessary for us to request
additional information from you to ensure that the retrieved record
does, in fact, pertain to you.
(c) All requests for information on whether or not the Agency's
systems of records contain information about you will be acknowledged
within 20 working days of receipt of that request. The requested records
will be provided as soon as possible thereafter.
(d) If the Agency determines that the substance of the requested
record is exceptionally sensitive, we will require you to furnish a
signed, notarized statement that you are in fact the person named in the
file before granting access to the records.
(e) Original records will not be furnished subject to and in
accordance with fees established in Sec. 505.11.
(f) Denial of access to records:
(1) The requirements of this section do not entitle you access to
any information compiled in reasonable anticipation of a civil action or
proceeding.
(2) Under the Privacy Act, we are not required to permit access to
records if the information is not retrievable by your name or other
personal identifier; those requests will be processed as Freedom of
Information Act requests.
(3) We may deny you access to a record, or portion thereof, if
following a review it is determined that the record or portion falls
within a system of records that is exempt from disclosure according to 5
U.S.C. 552a(j) and 552a(k). See Sec. Sec. 505.13 and 505.14 for a
listing of general and specific exemptions.
(4) The decision to deny access to a record or a portion of the
record is made by the Agency's Privacy Act Officer. The denial letter
will advise you of your right to appeal the denial (See Sec. 505.9 on
Access Appeal Committee's review).
Sec. 505.6 Medical records.
If, in the judgment of the Agency, the release of medical
information to
[[Page 100]]
you could have an adverse effect, the Agency will arrange an acceptable
alternative to granting access of such records directly to you. This
normally involves the release of the information to a doctor named by
you. However, this special procedure provision does not in any way limit
your absolute right to receive a complete copy of your medical record.
Sec. 505.7 Correction or amendment of record.
(a) You have the right to request that we amend a record pertaining
to you which you believe is not accurate, relevant, timely, or complete.
At the time we grant access to a record, we will furnish guidelines for
you to request amendment to the record.
(b) Requests for amendments to records must be in writing and mailed
or delivered to the FOIA/Privacy Act Officer, FOIA/Privacy Act Office,
Office of the General Counsel, Broadcasting Board of Governors, Suite
3349, 330 Independence Avenue, SW, Washington, DC 20237, who will
coordinate the review of the request to amend the record with the
appropriate office(s). Such requests must contain, at a minimum,
identifying information needed to locate the record, a brief description
of the item or items of information to be amended, and the reason for
the requested change. The requester should submit as much documentation,
arguments or other data as seems warranted to support the request for
amendment.
(c) We will review all requests for amendments to records within 20
working days of receipt of the request and either make the changes or
inform you of our refusal to do so and the reasons.