Proposed Rule2022-01560
Prohibited Personnel Practices, Disclosures of Information Evidencing Wrongdoing, FOIA, Privacy Act, and Disability Regulations To Conform With Changes in Law and Filing Procedures and Other Technical Changes
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 1, 2022
Issuing agencies
Special Counsel Office
Abstract
The U.S. Office of Special Counsel (OSC) proposes to revise its regulations regarding the filing of complaints and disclosures with OSC, to update the prohibited personnel practice provisions, Freedom of Information Act (FOIA) provisions, Privacy Act provisions, provisions concerning nondiscrimination based on disability, and to make other technical revisions. These revisions are intended to streamline OSC's filing procedures and reflect changes in law.
Full Text
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<title>Federal Register, Volume 87 Issue 21 (Tuesday, February 1, 2022)</title>
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[Federal Register Volume 87, Number 21 (Tuesday, February 1, 2022)]
[Proposed Rules]
[Pages 5409-5423]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01560]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 /
Proposed Rules
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OFFICE OF SPECIAL COUNSEL
5 CFR Chapter VIII
Prohibited Personnel Practices, Disclosures of Information
Evidencing Wrongdoing, FOIA, Privacy Act, and Disability Regulations To
Conform With Changes in Law and Filing Procedures and Other Technical
Changes
AGENCY: U.S. Office of Special Counsel.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Office of Special Counsel (OSC) proposes to revise
its regulations regarding the filing of complaints and disclosures with
OSC, to update the prohibited personnel practice provisions, Freedom of
Information Act (FOIA) provisions, Privacy Act provisions, provisions
concerning nondiscrimination based on disability, and to make other
technical revisions. These revisions are intended to streamline OSC's
filing procedures and reflect changes in law.
DATES: Interested parties should submit comments to the Office of
Special Counsel at one of the addresses shown below on or before March
3, 2022 to be considered in the formulation of a final rule.
ADDRESSES: You may submit comments by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#c5a3b7a9aca4acb6aaab85aab6a6eba2aab3"><span class="__cf_email__" data-cfemail="7711051b1e161e0418193718041459101801">[email protected]</span></a>. Include ``FY2022 Proposed Reg
Comments'' in the subject line of the email.
Comments received may be posted to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Susan Ullman, General Counsel, U.S.
Office of Special Counsel, by telephone at 202-804-7000, or by email at
<a href="/cdn-cgi/l/email-protection#added8c1c1c0ccc3edc2dece83cac2db"><span class="__cf_email__" data-cfemail="ccbfb9a0a0a1ada28ca3bfafe2aba3ba">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
OSC is proposing to revise its regulations pursuant to OSC's
authority at 5 U.S.C. 1212(e).
I. Changes Concerning the Filing of Complaints and Disclosures of
Information Evidencing Wrongdoing
The proposed rulemaking adds a new scope and purpose section at 5
CFR 1800.1 and redesignates the current Sec. Sec. 1800.1-1800.3 as
Sec. Sec. 1800.2-1800.4 respectively. The proposed rule revises the
language at the new Sec. 1800.2(c)(1) through (5) and (d), and Sec.
1800.3(b)(1) and (2) by replacing references to various OSC complaint
forms with references to a general complaint form established by OSC,
currently ``Form 14,'' that OMB approved on March 6, 2020. The proposed
rule also adds a paragraph at the new Sec. 1800.2(c)(3) to define when
a complaint contains sufficient information for OSC to investigate the
allegations.
II. Changes Concerning Prohibited Personnel Practices and Hatch Act
The proposed rulemaking updates the prohibited personnel practice
provisions to use more consistent terminology throughout. It also
amends new Sec. 1800.2(a)(9) to conform with amendments made to 5
U.S.C. 2302(b)(9)(D) by the Follow the Rules Act, Public Law 115-40,
and sec. 1097(c)(1)(A) of Public Law 115-91. It also adds two new
paragraphs at the new Sec. 1800.2(a)(13)-(14), based on amendments
made to 5 U.S.C. 2302(b)(13)-(14) which concern the use of agency
nondisclosure agreements and the access of employee medical files in
furtherance of a different PPP. The proposed rulemaking also moves the
procedures for filing a Hatch Act complaint and requesting a Hatch Act
advisory opinion into the same section.
III. Changes Concerning Disclosures of Information Evidencing
Wrongdoing
The proposed rulemaking amends the new Sec. 1800.3(a) to add
language from sec. 110 of the Whistleblower Protection Enhancement Act
of 2012, which clarified that censorship of scientific or technical
information could qualify as a type of agency wrongdoing under 5 U.S.C.
2302(b)(8).
IV. Clarification of OSC's Investigative Authority
Based on sec. 1097(a) of Public Law 115-91, the proposed rulemaking
adds a new section at 5 CFR 1810.2 to clarify OSC's right to timely
access to all agency records, even if those records contain privileged
information. Providing privileged information to OSC does not waive the
agency's privilege with respect to nongovernment third parties. OSC is
required to submit a report to Congress if an agency fails to comply
with a request for documents from OSC. The proposed rule adds a new
section at 5 CFR 1810.3 based on sec. 1097(f) of Public Law 115-91,
which delineates OSC's authority to promptly terminate investigations
if certain criteria are met. Finally, the proposed rule adds a new
section at 5 CFR 1810.4 that states that, to protect the integrity of
an OSC investigation, agencies should use liaisons that do not have
perceived or actual involvement with the personnel actions at issue.
V. Changes Concerning FOIA and Privacy Act Regulations
The proposed rule revises OSC's FOIA regulations at part 1820 by
updating the various methods for making a FOIA request, defining
``unusual circumstances,'' and clarifying that no fees will be assessed
if OSC fails to make a timely response. The proposed rule also revises
OSC's Privacy Act regulations by creating several new sections at 5 CFR
part 1830 to add a scope and purpose section, a definitions section,
and other sections concerning the management of records at OSC.
VI. Changes Concerning the Enforcement of Nondiscrimination Provisions
The proposed rule revises OSC's regulations implementing the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments to the Rehabilitation Act, codified at subchapter V of
chapter 16 of title 29 of the U.S. Code, to update various definitions,
processes, and procedures.
Procedural Determinations
Administrative Procedure Act (APA): This action is taken under the
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations
in the Federal Register.
Executive Orders 12866 and 13771: This proposed rule is not a
regulatory action under Executive Order (E.O.) 13771 because OSC does
not anticipate that this proposed rule will have significant economic
impact, raise novel issues, and/or have any other significant
[[Page 5410]]
impacts. Thus, this proposed rule is not a significant regulatory
action under section 3(f) of E.O. 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of the
Order.
Congressional Review Act (CRA): OSC has determined that this
proposed rule is not a major rule under the Congressional Review Act,
as it is unlikely to result in an annual effect on the economy of $100
million or more; is unlikely to result in a major increase in costs or
prices for consumers, individual industries, federal, state, or local
government agencies or geographic regions; and is unlikely to have a
significant adverse effect on competition, employment, investment,
productivity, or innovation, or on the ability of U.S.-based
enterprises to compete in domestic and export markets. Pursuant to 5
U.S.C. 801(a), OSC will transmit a copy of the proposed rule to each
House of the Congress and the Comptroller General.
Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act
does not apply, even though this proposed rule is being offered for
notice and comment procedures under the APA. This proposed rule will
not directly regulate small entities. OSC therefore need not perform a
regulatory flexibility analysis of small entity impacts.
Unfunded Mandates Reform Act (UMRA): This proposed revision does
not impose any federal mandates on state, local, or tribal governments,
or on the private sector within the meaning of the UMRA.
National Environmental Policy Act (NEPA): This proposed rule will
have no physical impact upon the environment and therefore will not
require any further review under NEPA.
Paperwork Reduction Act (PRA): This rule does not contain any
information collection requirements that require the approval of the
Office of Management and Budget under the PRA.
List of Subjects
5 CFR Parts 1800 and 1810
Administrative practice and procedure.
5 CFR Parts 1820 and 1830
Archives and records, Reporting and recordkeeping requirements.
5 CFR Part 1850
Administrative practice and procedure, Buildings and facilities,
Equal employment opportunity, Federal buildings and facilities,
Individuals with disabilities.
Approved: January 21, 2022.
Travis G. Millsaps,
Deputy Special Counsel for Public Policy.
For the reasons stated in the preamble, the U.S. Office of Special
Counsel proposes to amend chapter VIII of title 5 of the Code of
Federal Regulations as follows:
0
1. Revise part 1800 to read as follows:
PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS
Sec.
1800.1 Scope and purpose.
1800.2 Filing complaints of prohibited personnel practices or other
prohibited activities.
1800.3 Filing disclosures of information evidencing wrongdoing.
1800.4 Filing complaints of Hatch Act violations and requesting
advisory opinions.
Authority: 5 U.S.C. 1212(e).
Sec. 1800.1 Scope and purpose.
The purpose of this part is to implement the U.S. Office of Special
Counsel's (OSC) authorities at 5 U.S.C. 1212-1216. This part does not
create new individual rights but instead is intended to inform
individuals of filing options they may be entitled to under 5 U.S.C.
1212-1216, and 2302. Individuals are encouraged to go to OSC's website
at <a href="https://osc.gov">https://osc.gov</a> at for more information about the OSC complaint form
that should be used when filing with OSC.
Sec. 1800.2 Filing complaints of prohibited personnel practices or
other prohibited activities.
(a) Prohibited personnel practices. Pursuant to 5 U.S.C. 1214 and
1215, OSC has investigative and prosecutorial jurisdiction over
allegations that one or more of the following prohibited personnel
practices were committed against current or former Federal employees
and applicants for Federal employment:
(1) Discrimination, including discrimination based on marital
status or political affiliation (see Sec. 1810.1 of this chapter for
information about OSC's deferral policy for discrimination complaints);
(2) Soliciting or considering improper recommendations or
statements about any individual requesting, or under consideration for,
a personnel action;
(3) Coercing political activity, or engaging in retaliation for
refusal to engage in political activity;
(4) Deceiving or obstructing any individual with respect to
competition for employment;
(5) Influencing any individual to withdraw from competition to
improve or injure the employment prospects of another individual;
(6) Granting an unauthorized preference or advantage to any
individual to improve or injure the employment prospects of another
individual;
(7) Nepotism involving a covered relative as defined at 5 U.S.C.
3110(a)(3);
(8) Retaliation for whistleblowing (whistleblowing is generally
defined as the disclosure of information by an individual who
reasonably believes that the information evidences a violation of any
law, rule, or regulation; gross mismanagement; a gross waste of funds;
an abuse of authority; a substantial and specific danger to public
health or safety; or censorship related to scientific research or the
integrity of the scientific process if the censorship will cause one of
the aforementioned categories of wrongdoing);
(9) Retaliation for:
(i) Exercising certain grievance, complaint, or appeal rights;
(ii) Providing testimony or other assistance to any individual
exercising such grievance, complaint, or appeal rights;
(iii) Cooperating with the Special Counsel, an Inspector General,
or any other agency component responsible for internal investigation or
review; or
(iv) Refusing to obey an order that would require the violation of
law, rule, or regulation;
(10) Discrimination based on conduct that would not adversely
affect job performance;
(11) Violating a veterans' preference requirement;
(12) Taking or failing to take a personnel action in violation of
any law, rule, or regulation implementing or directly concerning merit
system principles at 5 U.S.C. 2301(b);
(13) Implementing or enforcing any nondisclosure policy, form, or
agreement that fails to include the statement found at 5 U.S.C.
2302(b)(13) or fails to inform any individual that they retain their
whistleblowing rights; and
(14) Accessing the medical record of any individual as part of, or
otherwise in furtherance of, any other prohibited personnel practice.
(b) Other prohibited activities. Pursuant to 5 U.S.C. 1216, OSC
also has investigative and prosecutorial jurisdiction over any
allegation concerning the following:
(1) Prohibited political activity by Federal employees covered by
the Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;
(2) Prohibited political activity by State and local officers and
employees
[[Page 5411]]
covered by the Hatch Act at title 5 of the U.S. Code, chapter 15;
(3) Arbitrary and capricious withholding of information prohibited
under the Freedom of Information Act at 5 U.S.C. 552 (except for
certain foreign and counterintelligence information);
(4) Activities prohibited by any civil service law, rule, or
regulation, including any activity relating to political intrusion in
personnel decision-making;
(5) Involvement by any employee in any prohibited discrimination
found by any court or appropriate administrative authority to have
occurred in the course of any personnel action (unless OSC determines
that the allegation may be resolved more appropriately under an
administrative appeals procedure); and
(6) Pursuant to 38 U.S.C. 4324, violations of the Uniformed
Services Employment and Reemployment Rights Act, codified at 38 U.S.C.
4301, et seq.
(c) Procedures for filing complaints alleging prohibited personnel
practices or other prohibited activities (other than the Hatch Act).
(1) Anyone may file a complaint with OSC alleging one or more
prohibited personnel practices, or other prohibited activities within
OSC's investigative jurisdiction. The OSC complaint form must be used
to file all such complaints.
(2) OSC will not process a complaint filed in any format other than
the completed OSC complaint form designated in paragraph (c)(1) of this
section. If a complainant does not use this form to submit a complaint,
OSC will provide the complainant with information about the form. The
OSC complaint form will be considered to be filed on the date on which
OSC receives a completed form.
(3) The OSC complaint form requests that the complainant provide
basic information about the alleged prohibited personnel practices or
other prohibited activities. A complaint may be amended to clarify or
include additional allegations. A complaint is sufficient for
investigation when OSC receives information identifying the parties,
identifying any relevant personnel action(s), and describing generally
the practices or activities at issue.
(4) The OSC complaint form is available:
(i) Online at: <a href="https://osc.gov">https://osc.gov</a> (to print out and complete on paper,
or to complete online);
(ii) By writing to OSC at: Office of Special Counsel, 1730 M Street
NW, Suite 218, Washington, DC 20036-4505; or
(iii) By calling OSC at: (800) 872-9855 (toll-free), or (202) 804-
7000 (in the Washington, DC area).
(5) A complainant can file a completed OSC complaint form:
(i) Electronically at: <a href="https://osc.gov">https://osc.gov</a>;
(ii) By email to: <a href="/cdn-cgi/l/email-protection#cfa6a1a9a08fa0bcace1a8a0b9"><span class="__cf_email__" data-cfemail="1b72757d745b746878357c746d">[email protected]</span></a>; or
(iii) By mail to: Office of Special Counsel, 1730 M Street NW,
Suite 218, Washington, DC 20036-4505.
Sec. 1800.3 Filing disclosures of information evidencing wrongdoing.
(a) General. Pursuant to 5 U.S.C. 1213, OSC is authorized to
provide an independent and secure channel for use by current or former
Federal employees and applicants for Federal employment to disclose
information that they reasonably believe evidences wrongdoing by a
Federal agency. OSC must determine whether there is a substantial
likelihood that the information discloses a violation of any law, rule,
or regulation; gross mismanagement; a gross waste of funds; an abuse of
authority; a substantial and specific danger to public health or
safety; or censorship related to scientific research or the integrity
of the scientific process if the censorship will cause one of the
aforementioned categories of wrongdoing. If it does, the law requires
OSC to refer the information to the appropriate agency head for an
investigation and a written report on the findings to the Special
Counsel. It is OSC's policy to maintain the anonymity of individual
filers throughout the disclosure process, unless they consent to their
identity being revealed. The law does not authorize OSC to investigate
any disclosure.
(b) Procedures for filing disclosures. Current or former Federal
employees and applicants for Federal employment may file a disclosure
of the type of information described in paragraph (a) of this section
with OSC. Such disclosures must be filed in writing.
(1) Filers are encouraged to use the OSC complaint form to file a
disclosure of the type of information described in paragraph (a) of
this section with OSC. This form provides more information about OSC
jurisdiction, and procedures for processing whistleblower disclosures.
The OSC complaint form is available:
(i) Online at: <a href="https://osc.gov">https://osc.gov</a> (to print out and complete on paper,
or to complete online);
(ii) By writing to OSC at: Office of Special Counsel, 1730 M Street
NW, Suite 218, Washington, DC 20036-4505; or
(iii) By calling OSC at: (800) 572-2249 (toll-free), or (202) 804-
7004 (in the Washington, DC area).
(2) Filers may use another written format to submit a disclosure to
OSC, but the submission should include:
(i) The name, mailing address, and telephone number(s) of the
individual(s) making the disclosure(s);
(ii) The department or agency, location, and organizational unit
complained of; and
(iii) A statement as to whether the filer consents to disclosure of
the filer's identity by OSC to the agency involved, in connection with
any OSC referral to that agency.
(3) An individual can file a disclosure with OSC:
(i) Electronically at: <a href="https://osc.gov">https://osc.gov</a>;
(ii) By email at <a href="/cdn-cgi/l/email-protection#422b2c242d022d31216c252d34"><span class="__cf_email__" data-cfemail="95fcfbf3fad5fae6f6bbf2fae3">[email protected]</span></a>; or
(iii) By mail to: Office of Special Counsel, Disclosure Unit, 1730
M Street NW, Suite 218, Washington, DC 20036-4505.
Sec. 1800.4 Filing complaints of Hatch Act violations and requesting
advisory opinions.
(a) Procedures for filing complaints alleging Hatch Act violations.
(1) Complainants are encouraged to use the OSC complaint form to file
Hatch Act complaints. The OSC complaint form is available:
(i) Online at: <a href="https://osc.gov">https://osc.gov</a> (to print out and complete on paper,
or to complete online); or
(ii) By writing to OSC at: Office of Special Counsel, 1730 M Street
NW, Suite 218, Washington, DC 20036-4505.
(2) Complaints alleging a violation of the Hatch Act may be
submitted in any written form, and should include:
(i) The complainant's name, mailing address, and telephone number
(unless the matter is submitted anonymously);
(ii) The department or agency, location, and organizational unit
complained of; and
(iii) A concise description of the actions complained about, names
and positions of employees who took the actions, if known to the
complainant, and dates of the actions, preferably in chronological
order, together with any documentary evidence that the complainant can
provide.
(3) A written Hatch Act complaint can also be filed with OSC:
(i) By email to: <a href="/cdn-cgi/l/email-protection#dfb7beabbcb7bebcab9fb0acbcf1b8b0a9"><span class="__cf_email__" data-cfemail="dab2bbaeb9b2bbb9ae9ab5a9b9f4bdb5ac">[email protected]</span></a>; or
(ii) By mail to: Office of Special Counsel, 1730 M Street NW, Suite
218, Washington, DC 20036-4505.
(b) Procedures for requesting Hatch Act advisory opinions. Pursuant
to 5 U.S.C. 1212(f), OSC is authorized to issue advisory opinions only
about political activity of Federal officers and employees, and
political activity of State or local officers and employees. An
individual can seek an advisory opinion from OSC:
(1) By email to: <a href="/cdn-cgi/l/email-protection#dcb4bda8bfb4bdbfa89cb3afbff2bbb3aa"><span class="__cf_email__" data-cfemail="92faf3e6f1faf3f1e6d2fde1f1bcf5fde4">[email protected]</span></a>;
(2) By mail to: Office of Special Counsel, Hatch Act Unit, 1730 M
Street
[[Page 5412]]
NW, Suite 218, Washington, DC 20036-4505; or
(3) By phone at: (800) 854-2824 (toll-free), or (202) 804-7002 (in
the Washington, DC area).
0
2. Revise part 1810 to read as follows:
PART 1810--INVESTIGATIVE AUTHORITY OF THE SPECIAL COUNSEL
Sec.
1810.1 Investigative policy in certain discrimination and
retaliation complaints.
1810.2 Access to agency information in investigations.
1810.3 Termination of certain OSC investigations.
1810.4 Investigative policy regarding agency liaisons.
Authority: 5 U.S.C. 1212(e).
Sec. 1810.1 Investigative policy in certain discrimination and
retaliation complaints.
OSC is authorized to investigate allegations of discrimination and
retaliation prohibited by law, as defined in 5 U.S.C. 2302(b)(1) and
(b)(9)(A)(ii). Because procedures for investigating discrimination and
retaliation complaints have already been established in the agencies
and the Equal Employment Opportunity Commission, OSC will usually avoid
duplicating those procedures and will defer to those procedures rather
than initiating an independent investigation.
Sec. 1810.2 Access to agency information in investigations.
(a) Pursuant to 5 U.S.C. 1212(b)(5), OSC is authorized to have
timely access to all agency records, data, reports, audits, reviews,
documents, papers, recommendations, information, or other material that
relate to an OSC investigation, review, or inquiry.
(b) A claim of common law privilege, such as the attorney-client
privilege, may not be used by any agency, or officer or employee of any
agency, to withhold information from OSC. By providing such information
to OSC, an agency will not be deemed to have waived the common law
privilege against a non-Federal entity or against any individual in any
other proceeding.
(c) In the event of contumacy or failure of an agency to comply
with any request under this section, the Special Counsel shall submit a
report to the committees of Congress with jurisdiction over OSC and the
applicable agency.
Sec. 1810.3 Termination of certain OSC investigations.
(a) Pursuant to 5 U.S.C. 1214(a)(6), within 30 days of receiving a
complaint alleging that a prohibited personnel practice occurred, OSC
may terminate an investigation of the allegation without further
inquiry if:
(1) The same allegation, based on the same set of facts and
circumstances, had previously been:
(i) Made by the individual and investigated by OSC; or
(ii) Filed by the individual with the Merit Systems Protection
Board;
(2) OSC does not have jurisdiction to investigate the allegation;
or
(3) The individual knew or should have known of the alleged
prohibited personnel practice more than 3 years before the allegation
was received by OSC.
(b) Within 30 days of terminating an investigation described in
paragraph (a) of this section, OSC shall notify the individual, in
writing, of the basis for terminating the investigation.
Sec. 1810.4 Investigative policy regarding agency liaisons.
Agency liaisons facilitate their agency's cooperation with OSC's
investigations by ensuring that agencies timely and accurately respond
to OSC's requests for information and witness testimony, as well as by
assisting with the resolution of complaints. To maintain the integrity
of OSC's investigations and to avoid actual or perceived conflicts,
agency liaisons should not have current or past involvement in the
personnel actions at issue in the assigned case.
0
3. Revise part 1820 to read as follows:
PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF
RECORDS OR TESTIMONY
Sec.
1820.1 General provisions.
Subpart A--FOIA Regulations
1820.2 Requirements for making FOIA requests.
1820.3 Consultations and referrals.
1820.4 Timing of responses to requests.
1820.5 Responses to requests.
1820.6 Appeals.
1820.7 Fees.
1820.8 Business information.
1820.9 Other rights and services.
Subpart B--Touhy Regulations
1820.10 Scope and purpose.
1820.11 Applicability.
1820.12 Definitions.
1820.13 General prohibition.
1820.14 Factors OSC will consider.
1820.15 Service of requests or demands.
1820.16 Requirements for litigants seeking documents or testimony.
1820.17 Processing requests or demands.
1820.18 Restrictions that apply to testimony.
1820.19 Restrictions that apply to released records.
1820.20 Procedure when a decision is not made prior to the time a
response is required.
1820.21 Fees.
1820.22 Final determination.
1820.23 Penalties.
1820.24 Conformity with other laws.
Authority: 5 U.S.C. 552, 301, and 1212(e).
Sec. 1820.1 General provisions.
This part contains rules and procedures followed by the U.S. Office
of Special Counsel (OSC) in processing requests for records under the
Freedom of Information Act (FOIA), codified at 5 U.S.C. 552. These
rules and procedures should be read together with the FOIA and the FOIA
page of OSC's website (<a href="https://osc.gov/FOIA">https://osc.gov/FOIA</a>), which set forth
additional information about access to agency records and information
routinely provided to the public as part of a regular OSC activity. For
example, forms, press releases, records published on OSC's website, or
public lists maintained at OSC headquarter offices pursuant to 5 U.S.C.
1219, may be requested and provided to the public without following
this part. This part also addresses responses to demands by a court or
other authority to an OSC employee or former employee for production of
official records or testimony in legal proceedings.
Subpart A--FOIA Regulations
Sec. 1820.2 Requirements for making FOIA requests.
(a) Submission of requests. (1) A request for OSC records under the
FOIA must be made in writing. The request must be sent:
(i) By email to: <a href="/cdn-cgi/l/email-protection#7a1c15131b081f0b0f1f090e3a150919541d150c"><span class="__cf_email__" data-cfemail="e680898f8794839793839592a6899585c8818990">[email protected]</span></a> or other electronic means
described on the FOIA page of OSC's website (<a href="https://osc.gov/FOIA">https://osc.gov/FOIA</a>);
(ii) Electronically to: The National FOIA Portal for the entire
federal government at <a href="http://www.foia.gov">www.foia.gov</a>; or
(iii) By mail to: U.S. Office of Special Counsel, FOIA Officer,
1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(2) Both the request letter and envelope or email subject line
should be clearly marked ``FOIA Request.''
(3) A FOIA request will not be considered to have been received by
OSC until it reaches the FOIA Officer.
(b) Description of records sought. Requests must state in the
letter, email, or other prescribed electronic method the words ``FOIA
Request'' or ``FOIA/Privacy Request.'' The request must also describe
the records sought in enough detail for them to be located with a
reasonable amount of effort. When requesting records about an OSC case
file, the case file number, name, and
[[Page 5413]]
type (for example, prohibited personnel practice (PPP), Hatch Act,
USERRA, Hatch Act advisory opinion, or whistleblower disclosure) should
be provided, if known. Whenever possible, requests should describe any
particular record sought, such as the date, title or name, author,
recipient, and subject matter. OSC requires proof of identification
from requestors seeking their own case files. OSC requires a signed
release of information from requestors seeking another individual's
case file.
(c) Agreement to pay fees. By making a FOIA request the requestor
agrees to pay all applicable fees chargeable under Sec. 1820.7 unless
the Special Counsel waives fees, the requestor is exempt, or the
requestor otherwise qualifies for a waiver of fees.
Sec. 1820.3 Consultations and referrals.
When OSC receives a FOIA request for a record in its possession, it
may determine that another Federal agency or entity is better able to
decide whether the record is exempt from disclosure under the FOIA. If
so, OSC will either respond to the request for the record after
consulting with the other Federal agency or entity or refer the
responsibility for responding to the request to the other Federal
agency or entity deemed better able to determine whether to release it.
OSC will ordinarily respond promptly to consultations and referrals
from other Federal agencies or entities.
Sec. 1820.4 Timing of responses to requests.
(a) In general. OSC ordinarily will respond to FOIA requests in
order of receipt. In determining which records are responsive to a
request, OSC ordinarily will include only records in its possession on
the date that it begins its search. OSC will inform the requestor if it
uses any other date.
(b) Multitrack processing. (1) OSC may use two or more processing
tracks to distinguish between simple and more complex requests based on
the amount of work and/or time estimated to process the request.
(2) When using multitrack processing, OSC may provide requestors in
its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the faster track(s).
(c) Expedited processing. (1) OSC will take requests and appeals
out of order and provide expedited treatment whenever OSC has
established to its satisfaction that:
(i) Failure to obtain requested records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency exists to inform the public about an actual or
alleged federal government activity and the requestor is primarily
engaged in disseminating information; or
(iii) The requestor with a personal interest in a case for which
they face an imminent filing deadline with the Merit Systems Protection
Board or other administrative tribunal or court of law in an individual
right of action, or in a USERRA case referred to OSC under title 38 of
the U.S. Code. Expedited status granted under this provision will apply
only to the following requested records: PPP case closure and notice of
appeal rights letters sent to the complainant by OSC, and the official
complaint form submitted to OSC by a USERRA complainant or the original
referred USERRA complaint if referred to OSC under title 38 of the U.S.
Code.
(2) A request for expedited processing must be made in writing and
sent to OSC's FOIA Officer. The expedited request is deemed received
when it reaches the FOIA Officer.
(3) A requestor who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
individual's knowledge and belief, explaining in detail the basis for
requesting expedited processing. OSC may waive a certification as a
matter of administrative discretion.
(4) OSC shall decide whether to grant a request for expedited
processing and notify the requestor of its decision within ten (10)
calendar days of the FOIA Officer's receipt of the request. If OSC
grants the request for expedited processing, it will process the
request as soon as practicable. If OSC denies the request for expedited
processing, OSC shall rule expeditiously on any administrative appeal
of that decision.
(d) Aggregated requests. OSC may aggregate multiple requests by the
same requestor, or by a group of requestors acting in concert, if it
reasonably believes that such requests actually constitute a single
request that would otherwise create ``unusual circumstances'' as
defined in Sec. 1820.5, and that the requests involve clearly related
matters.
Sec. 1820.5 Responses to requests.
(a) General. Ordinarily, OSC has twenty (20) business days from
receipt to determine whether to grant or deny a FOIA request.
(1) In unusual circumstances, OSC may extend the twenty (20)
business-day deadline by written notice to the requestor setting forth
the unusual circumstances justifying the extension. OSC shall notify
the requestor if OSC cannot process the request in 20 days and provide
the requestor an opportunity to modify the request so that OSC can
process the request within the 20-day time limit. OSC and the requestor
can also negotiate an alternative time frame for processing the request
or modified request. OSC's FOIA Public Liaison is available to assist
in the resolution of any disputes between the requestor and OSC. OSC
must also advise the requestor of the requestor's right to seek dispute
resolution services from the National Archives and Records
Administration's (NARA) Office of Government Information Services
(OGIS). OSC may consider a requestor's refusal to reasonably modify the
request or to negotiate an alternative time frame as a factor in
determining whether unusual and/or exceptional circumstances exist.
(2) Unusual circumstances means--
(i) The need to search for and collect the requested records from
OSC field offices, NARA storage facilities, or other locations away
from OSC's FOIA office;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(iii) The need for consultation and/or referral with another OSC
unit where the information also concerns two or more components of OSC
or with a Federal entity that has an interest in the information
requested.
(3) Exceptional circumstances means--
(i) OSC has a backlog of pending requests and is making reasonable
progress in reducing the backlog; and
(ii) OSC estimates a search yield of more than 5,000 pages.
(b) Denial of request. OSC will notify the requestor in writing of
its determination to grant or deny in full or in part a FOIA request.
(c) Adverse determinations. Adverse determinations, or denials of
requests, consist of: A determination to withhold any requested record
in whole or in part; that a requested record does not exist or cannot
be located; that a record is not readily reproducible in the form or
format sought by the requestor; that the request does not seek a record
subject to the FOIA; a determination on any disputed fee matter; or a
denial of a request for expedited treatment. A notification to a
requestor of an adverse determination on a request shall include:
(1) A brief statement of the reason(s) for the denial of the
request, including any FOIA exemption applied by OSC in denying the
request; and
[[Page 5414]]
(2) A statement that the denial may be appealed under Sec.
1820.6(a), with a description of the requirements of that subsection.
(d) Dispute resolution program. OSC shall inform FOIA requestors at
all stages of the FOIA process of the availability of dispute
resolution services provided by the FOIA Public Liaison or by NARA's
OGIS.
Sec. 1820.6 Appeals.
(a) Appeals of adverse determinations. A requestor may appeal an
adverse determination to OSC's Office of General Counsel. The appeal
must be in writing, and must be submitted either:
(1) By email to: <a href="/cdn-cgi/l/email-protection#afc9c0c6cecedfdfcacec3efc0dccc81c8c0d9"><span class="__cf_email__" data-cfemail="3c5a53555d5d4c4c595d507c534f5f125b534a">[email protected]</span></a>, or other electronic means as
described on the FOIA page of OSC's website (<a href="https://osc.gov/FOIA">https://osc.gov/FOIA</a>); or
(2) By mail to: U.S. Office of Special Counsel, Office of General
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(b) Submission and content. The Office of General Counsel must
receive the appeal within ninety (90) calendar days of the date of the
adverse determination letter. The appeal letter and envelope or email
subject line should be clearly marked ``FOIA Appeal.'' The appeal must
clearly identify the OSC determination (including the assigned FOIA
request number, if known) being appealed. OSC will not ordinarily act
on a FOIA appeal if the request becomes a matter of FOIA litigation.
(c) Responses to appeals. Ordinarily, OSC must issue a written
appeal decision within twenty (20) business days from receipt of the
appeal. A decision affirming a denial in whole or in part shall inform
the requestor of the provisions for judicial review of that decision,
and of the availability of dispute resolution services. If OSC's appeal
decision reverses or modifies its denial, OSC's notice will state that
OSC will reprocess the request in accordance with that appeal decision.
Sec. 1820.7 Fees.
(a) In general. OSC provides the first two hours of search time and
the first 100 pages of duplication free of charge to all requestors. In
exceptional circumstances, OSC may charge fees after determining that
unusual circumstances exist. At the discretion of the Special Counsel,
OSC may exempt certain requestors from search and duplication fees,
including PPP complainants and subjects; Hatch Act complainants and
subjects; Hatch Act advisory opinion requestors; whistleblowers; and
USERRA complainants. OSC charges commercial users for search, review,
and duplication fees under the FOIA in accordance with paragraph (c) of
this section, except where a waiver or reduction of fees is granted
under paragraph (h) of this section. OSC charges duplication fees, but
not search fees, to educational or non-commercial scientific
institutions; and to representative of the news media or news media
requestors. OSC charges both search fees and duplication fees to all
other requestors. If an exempted requestor abuses its exempt fee status
to file numerous, duplicative, and/or voluminous FOIA requests, OSC may
suspend the requestor's exempt status and charge search and duplication
fees. OSC may require up-front payment of fees before sending copies of
requested records to a requestor. Requestors must pay fees by
submitting to OSC's FOIA Officer a check or money order made payable to
the Treasury of the United States. See generally Uniform Freedom of
Information Act Fee Schedule and Guidelines (hereinafter OMB Fee
Guidelines), 52 FR 10012 (Mar. 27, 1987).
(b) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of an
individual who seeks information for a use or purpose that furthers
commercial, trade, or profit interests, which can include furthering
those interests through litigation. If OSC determines that the
requestor seeks to put the records to a commercial use, either because
of the nature of the request or because OSC has reasonable cause to
doubt a requestor's stated use, OSC shall provide the requestor with a
reasonable opportunity to clarify.
(2) Direct costs mean those expenses that OSC incurs in searching
for and duplicating (and, in the case of commercial use requests,
reviewing) records to respond to a FOIA request. Direct costs include,
for example, the salary of the employee performing the work (the basic
rate of pay for the employee plus 16 percent of that rate to cover
benefits) and the cost of operating duplicating equipment. Direct costs
do not include overhead expenses such as rent, heating, or lighting the
record storage facility.
(3) Duplication means the reasonable direct cost of making copies
of documents.
(4) Educational institution means any school that operates a
program of scholarly research. See OMB Fee Guidelines, 52 FR 10019. To
be in this category, a requestor must show that the request is
authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for a commercial use
but are sought to further scholarly research.
(5) Non-commercial scientific institution means an entity that is
operated solely for the purpose of conducting scientific research the
results of which are not intended to promote any particular product or
industry and are not for commercial use.
(6) Representative of the news media or news media requestor means
any individual or entity that gathers information of potential interest
to a segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. A non-exhaustive list of news media entities includes print
newspapers, electronic outlets for print newspapers, broadcast and
cable television networks and stations, broadcast and satellite radio
networks and stations, internet-only outlets, and other alternative
media as methods of news delivery evolve. For ``freelance'' journalists
to be regarded as working for a news organization, they must
demonstrate a solid basis for expecting publication through that
organization, whether print or electronic. A requestor seeking to
qualify as a news media requestor must not be seeking the requested
records for a commercial use. The requestor's news-dissemination
function is not considered to be a commercial use.
(7) Review means the process of examining a record located in
response to a request in order to determine whether any portion of the
record is exempt from release. Review includes redacting exempt
material, and otherwise evaluating and preparing the records for
release. Review includes time spent obtaining and considering any
formal objection to release made by a business submitter under Sec.
1820.8(f). Review does not include time spent resolving general legal
or policy issues about the application of exemptions. OSC may charge
for review costs in connection with commercial use requests even if a
record ultimately is not released.
(8) Search means the process of looking for and retrieving records
or information responsive to a FOIA request, as well as page-by-page or
line-by-line identification of responsive information within records.
(c) Fees. OSC charges the following fees for responding to FOIA
requests:
(1) Search. (i) The first two hours of search are free. OSC may
charge for time spent searching even if it fails to locate responsive
records, or even if OSC
[[Page 5415]]
determines that located records are exempt from release.
(ii) OSC charges $5.50 per quarter hour spent by clerical personnel
in searching for and retrieving a requested record; $9.00 per quarter
hour of search time spent by professional personnel; and $17.50 per
quarter hour for search assistance from managerial personnel.
(iii) OSC charges the direct costs of conducting electronic
searches, including the costs of operator or programmer staff time
apportionable to the search.
(iv) OSC may charge additional costs in accordance with the
applicable billing schedule established by NARA for requests requiring
the retrieval of records from any Federal Records Center.
(2) Duplication. OSC charges all non-exempt requestors duplication
fees after the first 100 pages. OSC's duplication fee for a standard
paper photocopy of a record will be 25 cents per page. For copies
produced by computer, such as discs or printouts, OSC will charge the
direct costs, including staff time, of producing the copy. For other
forms of duplication, OSC will charge the direct costs of that
duplication.
(3) Review. OSC charges review fees to commercial use requestors.
OSC will not charge for review at the administrative appeal level.
(d) Notice of anticipated fees in excess of $25.00. OSC shall
notify the requestor of the actual or estimated fees when OSC
determines or estimates that fees charged under this section would
exceed $25.00, unless the requestor has indicated a willingness to pay
fees at that level. The fee notice will offer the requestor an
opportunity to work with OSC to reformulate or narrow the request to
try to lower the anticipated fees. OSC will not conduct a search or
process responsive records until the requestor agrees to pay the
anticipated total fee in excess of $25.00.
(e) Charges for other services. OSC will ordinarily charge an
additional fee when OSC chooses as a matter of administrative
discretion to provide a special service, such as shipping records by
other than ordinary mail.
(f) Aggregating separate requests. OSC may aggregate requests and
charge appropriate fees where OSC reasonably believes that a requestor
or a group of requestors seek to avoid fees by dividing a request into
a series of requests. OSC may presume that multiple such requests made
within a 30-day period were divided in order to avoid fees. OSC will
aggregate requests separated by more than 30 days only where a
reasonable basis exists for determining that aggregation is warranted
under the circumstances involved.
(g) Advance payments. (1) For requests other than those described
in paragraphs (g)(2) and (3) of this section, OSC will not require the
requestor to make an advance payment before work is begun or continued
on a request. Payment owed for work already completed (that is, pre-
payment after processing a request but before copies are sent to the
requestor) is not an advance payment.
(2) OSC may require advance payment up to the amount of the entire
anticipated fee before beginning to process the request if OSC
determines or estimates that a total fee to be charged under this
section will exceed $250.00.
(3) OSC may require the requestor to make an advance payment in
full of the anticipated fee where a requestor has previously failed to
pay a properly charged FOIA fee within 30 business days of the date of
billing.
(h) Requirements for waiver or reduction of fees. (1) OSC will
furnish records responsive to a request without charge or at a charge
reduced below that established under paragraph (c) of this section
where OSC determines, based on all available information, that the
requestor has demonstrated that:
(i) Release of the requested records is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government; and
(ii) Release of the records is not primarily in the commercial
interest of the requestor.
(2) To determine whether the first fee waiver requirement is met,
OSC will consider the following factors:
(i) Whether the subject of the requested records concerns a direct
and clear connection to ``the operations or activities of the
government,'' not remote or attenuated.
(ii) Whether the release is ``likely to contribute''' to an
understanding of government operations or activities. The releasable
portions of the requested records must be meaningfully informative
about government operations or activities in order to be ``likely to
contribute'' to an increased public understanding of those operations
or activities. The release of records already in the public domain is
unlikely to contribute to such understanding.
(iii) Whether release of the requested records will contribute to
``public understanding.'' The release must contribute to the
understanding of a reasonably broad audience of individuals interested
in the subject. OSC shall consider a requestor's expertise in the
subject area and ability and intention to effectively convey
information to the public. A representative of the news media
presumptively satisfies this consideration.
(iv) Whether the release is likely to contribute ``significantly''
to public understanding of government operations or activities. The
requestor must demonstrate that the release would significantly enhance
the public's understanding of the subject in question.
(3) To determine whether the second fee waiver requirement is met,
OSC will consider the following factors:
(i) Whether the requestor has a commercial interest that would be
furthered by the requested release. OSC shall consider any commercial
interest of the requestor (with reference to the definition of
``commercial use'' in paragraph (b)(1) of this section), or of any
individual on whose behalf the requestor may be acting, that would be
furthered by the requested release. Requestors shall be given an
opportunity to provide explanatory information about this
consideration.
(ii) Whether any identified public interest is greater in magnitude
than that of any identified commercial interest in release. OSC
ordinarily shall presume that a news media requestor has satisfied the
public interest standard. Release to data brokers or others who merely
compile and market government information for direct economic return
shall be presumed not to primarily serve the public interest.
(4) Where only a portion of the records to be released satisfies
the requirements for a waiver of fees, a waiver shall be granted for
that portion.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (h)(1), (2), and (3) of this section,
insofar as they apply to each request. OSC fee reduction or waiver
decisions may consider the cost-effectiveness of its allocation of
administrative resources.
(i) No assessment of fees. OSC may not assess any search fees if it
misses the statutory 20 business-day deadline to respond to the
request, except under paragraphs (i)(1) and (2) of this section.
(1) If OSC determined that unusual circumstances apply and OSC
provided a timely written notice to the requestor, OSC may extend the
20-day deadline by 10 business days. OSC may not assess any search
fees, however, if it misses the extended deadline.
(2) OSC may charge search fees if the search yield would exceed
5,000 pages, and if OSC provides a timely written notice to the
requestor.
[[Page 5416]]
Sec. 1820.8 Business information.
(a) In general. Business information obtained by OSC from a
submitter may be released only pursuant to this section.
(b) Definitions. For purposes of this section:
(1) Business information means trade secrets and commercial or
financial information obtained by OSC from a submitter that may be
protected from release under FOIA Exemption 4. 5 U.S.C. 552(b)(4).
(2) Submitter means any individual or entity from whom OSC obtains
business information, directly or indirectly.
(c) Designation of business information. A submitter of business
information must use good-faith efforts to designate, by appropriate
markings, any portion of its submission that it considers to be
protected from release under exemption 4.
(d) Notice to submitters. OSC shall provide a submitter with prompt
written notice of a FOIA request or administrative appeal that appears
to seek confidential business information wherever required under
paragraph (e) of this section, except as provided in paragraph (h) of
this section, in order to give the submitter an opportunity to object
to release of any specified portion of those records under paragraph
(f) of this section. The notice shall either describe the confidential
business information requested or include copies of the requested
records or record portions containing the information.
(e) When notice is required. Notice shall be given to a submitter
whenever:
(1) The submitter designated the records in good faith as
considered protected from release under exemption 4; or
(2) OSC has reason to believe that the records or portions of
records may be protected from release under exemption 4.
(f) Opportunity to object to release. OSC will allow a submitter a
reasonable time to respond to the notice described in paragraph (d) of
this section and will specify that time period within the notice. The
submitter must submit any objections to release in a detailed written
statement. The statement must specify all grounds for withholding any
portion of the records under any exemption of the FOIA and, in the case
of exemption 4, it must show why the information contained in the
record is privileged or confidential. Submitters who fail to respond
timely to the notice are deemed to have consented to release of the
records. Information provided by a submitter under this paragraph may
itself be subject to release under FOIA.
(1) Notice of intent to release. OSC shall consider a submitter's
objections and specific grounds for non-release in deciding whether to
release business information. If OSC decides to release business
information over the objection of a submitter, OSC shall provide
written notice including the reason(s) why OSC overruled the
submitter's objections; a description of the business information to be
released; and a reasonable specified release date.
(2) [Reserved]
(g) Exceptions to notice requirements. The notice requirements of
paragraphs (d) and (e) of this section shall not apply if:
(1) OSC determines that the information should not be released;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Release of the information is required by statute (other than
the FOIA) or by a regulation issued in accordance with the requirements
of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous--except that, in such a case,
OSC shall, within a reasonable time prior to a specified release date,
give the submitter written notice of any final decision to release the
information.
(h) Notice of FOIA lawsuit. OSC shall promptly notify a submitter
if a requestor files a lawsuit seeking to compel the release of the
submitter's business information.
(i) Corresponding notice to requestors. OSC shall notify
requestor(s): That it provided business submitters the opportunity to
object to release under paragraph (d) of this section; if OSC
subsequently releases the requested records under paragraph (g) of this
section; and whenever a submitter files a lawsuit seeking to prevent
OSC's release of business information.
Sec. 1820.9 Other rights and services.
This subpart does not create a right or entitlement for any
individual to any service or to the release of any record other than
those available under FOIA.
Subpart B--Touhy Regulations
Sec. 1820.10 Scope and purpose.
(a) This subpart establishes policy, assigns responsibilities, and
prescribes procedures with respect to the production of official
information, records, or testimony by current and former OSC employees,
contractors, advisors, and consultants in connection with Federal or
State litigation or administrative proceedings in which OSC is not a
party.
(b) OSC intends this part to:
(1) Conserve OSC employee time for conducting official business;
(2) Minimize OSC employee involvement in issues unrelated to OSC's
mission;
(3) Maintain OSC employee impartiality in disputes between non-OSC
litigants; and
(4) Protect OSC's sensitive, confidential information and
deliberative processes.
(c) OSC does not waive the sovereign immunity of the United States
when allowing OSC employees to provide testimony or records under this
part.
Sec. 1820.11 Applicability.
This subpart applies to demands and requests from non-OSC litigants
for testimony from current and former OSC employees, contractors,
advisors, and consultants relating to official OSC information and/or
for production of official OSC records or information in legal
proceedings in which OSC is not a party.
Sec. 1820.12 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 OSC's production or release of records or
for an OSC employee's appearance and testimony in a legal proceeding.
(b) Request means any 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.
(c) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations, and
interviews made by an individual in connection with a legal proceeding.
(d) Records or official records and information means all
information in OSC's custody and control, relating to information in
OSC's custody and control, or acquired by an OSC employee in the
performance of official duties.
(e) 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.
(f) General Counsel means OSC's General Counsel or an individual to
whom the General Counsel has delegated authority under this part.
(g) OSC employee or employee means any current or former OSC
employee or contractor, including but not limited to OSC: Temporary
employees, interns,
[[Page 5417]]
volunteers, consultants, and/or other advisors.
Sec. 1820.13 General prohibition.
No OSC employee may testify or produce official records or
information in response to a demand or request without the General
Counsel's prior written approval.
Sec. 1820.14 Factors OSC will consider.
The General Counsel has discretion to 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.
The General Counsel may consider whether:
(a) The purposes of this subpart are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice; would assist or hinder
OSC in performing its statutory duties; or would be in the best
interest of OSC or the United States;
(c) The records or testimony can be obtained from other sources;
(d) 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;
(e) Release would violate a statute, Executive Order, or
regulation; would reveal trade secrets, confidential, sensitive, or
privileged information, or information that would otherwise be
inappropriate for release; or would impede or interfere with an ongoing
law enforcement investigation or proceeding, or compromise
constitutional rights or national security interests;
(f) Allowing such testimony or production of records would result
in OSC appearing to favor one litigant over another;
(g) A substantial government interest is implicated;
(h) The demand or request is within the authority of the party
making it; and/or
(i) The demand or request is sufficiently specific to be answered.
Sec. 1820.15 Service of requests or demands.
Requests or demands for official records or information or
testimony under this subpart must be served by mail to the U.S. Office
of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite
218, Washington, DC 20036-4505; or by email to <a href="/cdn-cgi/l/email-protection#721d1511321d01115c151d04"><span class="__cf_email__" data-cfemail="f39c9490b39c8090dd949c85">[email protected]</span></a>. The subject
line should read ``Touhy Request.''
Sec. 1820.16 Requirements for litigants seeking documents or
testimony.
A litigant must comply with the following requirements when
submitting a request for testimony or official records and information
under this subpart. A request should be submitted before a demand is
issued.
(a) The request must be in writing (email suffices) and must be
submitted to the General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal or administrative proceeding, docket
number, and name and address of the court or other administrative or
regulatory 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 or
administrative proceeding, and a specific description of the substance
of the testimony or records sought;
(4) A statement addressing the factors set out in Sec. 1820.14;
(5) A statement indicating that the information sought is not
available from another source;
(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 requestor and other
parties will require of each OSC employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) OSC reserves the right to require additional information to
complete the request where appropriate.
(d) The request should be submitted at least 14 days before the
date that records or testimony is required.
(e) The General Counsel may deny a request for records or testimony
based on a requestor's failure to cooperate in good faith to enable the
General Counsel to make an informed decision.
(f) The request should state that the requestor will provide a copy
of the OSC employee's testimony free of charge and that the requestor
will permit OSC to have a representative present during the employee's
testimony.
Sec. 1820.17 Processing requests or demands.
(a) Absent exigent circumstances, OSC will issue a determination
within 10 business days after the General Counsel received the request
or demand.
(b) 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 OSC or the United States, or for
other good cause.
(c) On request, OSC may certify that records are true copies in
order to facilitate their use as evidence.
Sec. 1820.18 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on
OSC employee testimony including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requestor 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.
(b) OSC may offer the employee's written declaration in lieu of
testimony.
(c) If authorized to testify under this part, employees may testify
as to facts within their personal knowledge, but, unless specifically
authorized to do so by the General Counsel, the employee shall not;
(1) Reveal confidential or privileged information; or
(2) For a current OSC 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 OSC 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 OSC's approval.
Sec. 1820.19 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on
the release of official OSC 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.
(b) If the General Counsel so determines, original OSC records may
be presented for examination in response to a request, but they may not
[[Page 5418]]
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official OSC records, nor may they be
marked or altered.
Sec. 1820.20 Procedure in the event a decision is not made prior to
the time a response is required.
If a requestor needs a response to a demand or request before the
General Counsel makes a determination whether to grant the 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 at this time, and respectfully decline
to comply with the demand or request, citing United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 1820.21 Fees.
(a) Witness fees. OSC may assess fees for attendance by a witness.
Such fees will include fees, expenses, and allowances prescribed by the
court's rules. If no such fees are prescribed, witness fees will be
determined based on 28 U.S.C. 1821, and upon the rule of the federal
district closest to the location where the witness will appear. Such
fees will include the costs of time spent by the witness to prepare for
testimony, in travel, and for attendance in the legal proceeding, plus
travel costs.
(b) Payment of fees. A requestor must pay witness fees for current
OSC 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 United States Department of Treasury.
Sec. 1820.22 Final determination.
The General Counsel will notify the requestor and, when
appropriate, the court or other body of the final determination, the
reasons for the response to the request or demand, and any conditions
that the General Counsel may impose on the testimony of an OSC employee
or the release of OSC records or information. The General Counsel has
the sole discretion to make the final determination regarding requests
to employees for testimony or production of official records and
information in litigation in which OSC is not a party. The General
Counsel's decision exhausts administrative remedies for purposes of
release of the information.
Sec. 1820.23 Penalties.
(a) An employee who releases official records or information or
gives testimony relating to official information, except as expressly
authorized by OSC, or as ordered by a court after OSC has had the
opportunity to be heard, may face the penalties provided in 18 U.S.C.
641 and other applicable laws. Additionally, former OSC employees are
subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current OSC employee who testifies or produces official
records and information in violation of this subpart may be subject to
disciplinary action.
Sec. 1820.24 Conformity with other laws; other rights.
This regulation is not intended to conflict with 5 U.S.C.
2302(b)(13). This subpart does not create any right, entitlement, or
benefit, substantive or procedural, that a party may rely upon in any
legal proceeding against the United States.
0
4. Revise part 1830 to read as follows:
PART 1830--PRIVACY ACT REGULATIONS
Sec.
1830.1 Scope and purpose.
1830.2 Definitions.
1830.3 Requirements for making Privacy Act requests.
1830.4 Medical records.
1830.5 Requirements for requesting amendment of records.
1830.6 Appeals.
1830.7 Exemptions.
1830.8 Fees.
1830.9 Accounting for disclosures.
1830.10 Conditions of disclosure.
Authority: 5 U.S.C. 552a(f),1212(e).
Sec. 1830.1 Scope and purpose.
(a) This part contains rules and procedures followed by OSC in
processing requests for records under the Privacy Act. Further
information about access to OSC records generally is available on OSC's
website at <a href="https://osc.gov/Privacy">https://osc.gov/Privacy</a>.
(b) This part implements the Privacy Act of 1974, codified at 5
U.S.C. 552a, by establishing OSC policies and procedures for the
release and maintenance of certain systems of records. See 5 U.S.C.
552a(f). This part also establishes policies and procedures for an
individual to correct or amend their record if they believe it is not
accurate, timely, complete, or relevant or necessary to accomplish an
OSC function.
(c) OSC personnel protected by the Privacy Act include all staff,
experts, contractors, consultants, volunteers, interns, and temporary
employees.
(d) Other individuals engaging with OSC protected by the Privacy
Act include, but are not limited to, PPP complainants, Hatch Act
complainants, subjects of Hatch Act complaints, Hatch Act advisory
opinion requesters, whistleblowers filing disclosures under 5 U.S.C.
1213, and USERRA complainants
(e) This part does not:
(1) Apply to OSC record systems that are not Privacy Act Record
Systems.
(2) Make any records available to individuals other than:
(i) Individuals who are the subjects of the records;
(ii) individuals who can prove they have consent of subject
individual; or
(iii) individuals acting as legal representatives on behalf of such
subject individuals.
(3) Make available information compiled by OSC in reasonable
anticipation of court litigation or formal administrative proceedings.
The availability of such information, including to any subject
individual or party to such litigation or proceeding, shall be governed
by applicable constitutional principles, rules of discovery,
privileges, and part 1820 of this chapter; or
(4) Apply to personnel records maintained by the Human Capital
Office of OSC. Those records are subject to regulations of the Office
of Personnel Management in 5 CFR parts 293, 294, and 297.
Sec. 1830.2 Definitions.
As used in this part:
(a) Access means availability of a record to a subject individual.
(b) Disclosure means the availability or release of a record.
(c) Maintain means to maintain, collect, use, or disseminate when
used in connection with the term ``record;'' and to have control over
or responsibility for a system of records when used in connection with
the term ``system of records.''
(d) Notification means communication to an individual whether or
not they are a subject individual.
(e) Record means any item, collection, or grouping of information
about an individual that is maintained by OSC, including but not
limited to the individual's education, financial transactions, medical
history, criminal, or employment history, that contains a name or an
identifying number, symbol, or other identifying particular assigned to
the individual. When used in this part, record means only a record that
is in a system of records.
[[Page 5419]]
(f) Release means making available all or part of the information
or records contained in an OSC system of records.
(g) Responsible OSC official means the officer listed in a notice
of a system of records as the system manager or another individual
listed in the notice of a system of records to whom requests may be
made, or the designee of either such officer or individual.
(h) Subject individual means that individual to whom a record
pertains.
(i) System of records means any group of records under the control
of OSC from which a record is retrieved by personal identifier such as
the name of the individual, number, symbol or other unique retriever
assigned to the individual. Single records or groups of records which
are not retrieved by a personal identifier are not part of a system of
records. See 5 U.S.C. 552a(a)(5).
Sec. 1830.3 Requirements for making Privacy Act requests.
(a) Submission of requests. A request for OSC records under the
Privacy Act must be made in writing. The request must be sent:
(1) By email to: <a href="/cdn-cgi/l/email-protection#44222b2d2536213531213730042b37276a232b32"><span class="__cf_email__" data-cfemail="4a2c25232b382f3b3f2f393e0a253929642d253c">[email protected]</span></a>; or
(2) By mail to: U.S. Office of Special Counsel, Chief Privacy
Officer, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) Both the request letter and envelope or email should clearly be
marked ``Privacy Act Request.'' A Privacy Act request is deemed
received by OSC when it reaches the Chief Privacy Officer.
(b) Description of records sought. Requestors must describe the
records sought in enough detail for OSC to locate them with a
reasonable amount of effort, including, where known, data such as the
date, title or name, author, recipient, and subject matter of the
requested record.
(c) Proof of identity. OSC requires proof of identity from
requestors seeking their own files, preferably a government-issued
document bearing the subject individual's photograph. OSC requires a
signed consent from the subject individual to release records to an
individual's representative.
(d) Freedom of Information Act processing. OSC also processes all
Privacy Act requests for access to records under the Freedom of
Information Act, 5 U.S.C. 552, by following the rules contained in part
1820 of this chapter.
Sec. 1830.4 Medical records.
When a request for access involves medical records that are not
otherwise exempt from disclosure, OSC may advise the requesting
individual that OSC will only provide the records to a physician the
individual designates in writing. Upon receipt of the designation, the
physician will be permitted to review the records or to receive copies
by mail upon proper verification of identity.
Sec. 1830.5 Requirements for requesting amendment of records.
(a) Submission of requests. Individuals may request amendment of
records pertaining to them that are subject to amendment under the
Privacy Act and this part. The request must be sent:
(1) By email to: <a href="/cdn-cgi/l/email-protection#8fe6e1e9e0cfe0fceca1e8e0f9"><span class="__cf_email__" data-cfemail="f29b9c949db29d8191dc959d84">[email protected]</span></a>; or
(2) By mail to: Chief Privacy Officer, U.S. Office of Special
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) Both the request letter and envelope or email should be clearly
marked ``Privacy Act Amendment Request.'' Whether sent by mail or
email, a Privacy Act amendment request is considered received by OSC
when it reaches the Chief Privacy Officer.
(b) Description of amendment sought. Requests for amendment should
include the identification of the records together with a statement of
the basis for the requested amendment and all available supporting
documents and materials. The request needs to articulate whether
information should be added, deleted, or substituted with another
record and clearly articulate the reason for believing that the record
should be corrected or amended.
(c) Proof of identity. Rules and procedures set forth in Sec.
1830.3 apply to requests made under this section.
(d) Acknowledgement and response. Requests for amendment shall be
acknowledged by OSC no later than ten (10) business days after receipt
by the Chief Privacy Officer and a determination on the request shall
be made promptly.
(e) What will not change. The Privacy Act amendment or correction
process will not be used to alter, delete, or amend information which
is part of a determination of fact or which is evidence received in the
record of a claim in any form of an administrative appeal process.
Disagreements with these determinations are to be resolved through the
assigned OSC Program Office.
(f) Notice of error. If the record is wrong, OSC will correct it
promptly. If wrong information was disclosed from the record, we will
tell those of whom we are aware received that information that it was
wrong and will give them the correct information. This will not be
necessary if the change is not due to an error--e.g., a change of name
or address.
(g) Record found to be correct. If the record is correct, OSC will
inform you in writing of the reason why we refuse to amend your record
and we will also inform you of your right to appeal the refusal and the
name and address of the official to whom you should send your appeal.
(h) Record of another government agency. If you request OSC to
correct or amend a record governed by the regulation of another
government agency, we will forward your request to such government
agency for processing and we will inform you in writing of the
referral.
Sec. 1830.6 Appeals.
(a) Appeals of adverse determinations. A requestor may appeal a
denial of a Privacy Act request for access to or amendment of records
to OSC's Office of General Counsel. The appeal must be in writing, and
be sent:
(1) By email to: <a href="/cdn-cgi/l/email-protection#0a63646c654a657969246d657c"><span class="__cf_email__" data-cfemail="cfa6a1a9a08fa0bcace1a8a0b9">[email protected]</span></a>; or
(2) By mail to: U.S. Office of Special Counsel, Office of General
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
(3) The appeal must be received by the Office of General Counsel
within 45 calendar days of the date of the letter denying the request.
Both the appeal letter and envelope or email should be clearly marked
``Privacy Act Appeal.'' An appeal is considered received by OSC when it
reaches the Office of General Counsel. The appeal letter may include as
much or as little related information as the requestor wishes, as long
as it clearly identifies OSC's determination (including the assigned
request number, if known) being appealed. An appeal ordinarily will not
be acted on if the request becomes a matter of litigation.
(b) Responses to appeals. OSC's decision on an appeal will be made
in writing. A final determination will be issued within 20 business
days--unless OSC shows good cause to extend the 20-day period.
Sec. 1830.7 Exemptions.
OSC exempts investigatory material from records subject to Privacy
Act record requests or amendment of records requests. This exemption
aims to prevent interference with OSC's inquiries into matters under
its jurisdiction, and to protect identities of confidential sources of
information. OSC also reserves the right to assert exemptions for
records received from another agency that could be properly claimed by
that agency. OSC may
[[Page 5420]]
exempt any information compiled in reasonable anticipation of a legal
action or proceeding.
Sec. 1830.8 Fees.
Requests for records under this section shall be subject to the
fees set forth in part 1820 of this chapter.
Sec. 1830.9 Accounting for disclosures.
OSC will maintain an accounting of all releases of a record for six
(6) years or for the life of the record in accordance with the General
Records Schedule, whichever is longer--except that, we will not make
accounting for:
(a) Releases of your record made with your consent;
(b) To those officers and employees of the Office of Special
Counsel who have a need for the record to perform their duties; and
(c) To those required to be released under the Freedom of
Information Act, 5 U.S.C. 552, and part 1820 of this chapter.
Sec. 1830.10 Conditions of disclosure.
OSC shall not release any record that is contained in a system of
records to any individual or to another agency, except as follows:
(a) Consent to release by the subject individual. Except as
provided in paragraphs (b) and (c) of this section authorizing releases
of records without consent, no release of a record will be made without
the consent of the subject individual. The consent shall be in writing
and signed by the subject individual. The consent shall specify the
individual, agency, or other entity to whom the record may be released,
which record may be released and, where applicable, during which time
frame the record may be released. The subject individual's identity
and, where applicable, the identity of the individual to whom the
record is to be released shall be verified as set forth in Sec.
1830.3(c).
(b) Releases without the consent of the subject individual. The
releases listed in this paragraph may be made without the consent of
the subject individual, including:
(1) To those officers and employees of the Office of Special
Counsel who have a need for the record to perform their duties.
(2) To those required to be released under the Freedom of
Information Act, 5 U.S.C. 552, and part 1820 of this title.
(3) To the entities listed in in the Privacy Act at 5 U.S.C.
552a(b)(1) through (12).
0
5. Revise part 1850 to read as follows:
PART 1850--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF
SPECIAL COUNSEL
Sec.
1850.101 Purpose.
1850.102 Application.
1850.103 Definitions.
1850.104-1850.109 [Reserved]
1850.110 Notice.
1850.111-1850.119 [Reserved]
1850.120 General prohibitions against discrimination against
individuals with disabilities.
1850.121-1850.129 [Reserved]
1850.130 Employment of qualified individuals with disabilities.
1850.131-1850.139 [Reserved]
1850.140 Program accessibility: Discrimination against qualified
individuals with disabilities prohibited.
1850.141-1850.149 [Reserved]
1850.150 Program accessibility: Existing facilities.
1850.151 Program accessibility: New construction and alterations.
1850.152-1850.159 [Reserved]
1850.160 Communications.
1850.161-1850.169 [Reserved]
1850.170 Compliance procedures.
1850.171-1850.999 [Reserved]
Authority: 29 U.S.C. 794.
Sec. 1850.101 Purpose.
The purpose of this part is to implement section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of disability in
programs or activities conducted by Executive agencies or the United
States Postal Service.
Sec. 1850.102 Application.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with disabilities in the United
States.
Sec. 1850.103 Definitions.
(a) Auxiliary aids means services or devices that enable
individuals with impaired sensory, manual, or speaking skills to have
an equal opportunity to participate in, and enjoy the benefits of,
programs or activities conducted by the agency. For example, auxiliary
aids useful for individuals with impaired vision include readers,
Braille materials, audio recordings, and other similar services and
devices. Auxiliary aids useful for individuals with impaired hearing
include telephone handset amplifiers, telephones compatible with
hearing aids, telecommunication devices for deaf individuals (TDDs),
interpreters, notetakers, written materials, and other similar services
and devices.
(b) Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on the
complainant's behalf. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.
(c) Days means calendar days, unless otherwise stated.
(d) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
(e) Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
(f) Individual with a disability means any individual who has a
physical or mental impairment that substantially limits one or more
major life activities, has a record of such an impairment, or is
regarded as having such an impairment. The following phrases used in
this definition are further defined as follows:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and
endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(iii) Also, physical and mental impairment includes, but is not
limited to, such diseases and conditions as orthopedic, visual, speech,
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, and drug addiction and alcoholism.
(2) Major life activities include functions such as--
[[Page 5421]]
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, writing, communicating, interacting with others, and working;
and
(ii) The operation of a major bodily function, such as the
functions of the immune system, special sense organs and skin, normal
cell growth, and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular,
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.
The operation of a major bodily function includes the operation of an
individual organ within a body system.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in paragraph (i) of this
definition but is treated by the agency as having such an impairment.
(g) Qualified individual with a disability means--
(1) With respect to any agency program or activity under which an
individual is required to perform services or to achieve a level of
accomplishment, an individual with a disability who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or
activity; and
(3) Qualified individuals with disabilities as that term is defined
for purposes of employment in 29 CFR 1614.203, which is made applicable
to this part by Sec. 1850.130.
(h) Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810). As used in this part, Section 504 applies only to programs or
activities conducted by Executive agencies and not to federally
assisted programs.
Sec. Sec. 1850.104-1850.109 [Reserved]
Sec. 1850.110 Notice.
The agency shall make available to all interested individuals
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency as necessary to
apprise such individuals of the protections assured them by Section 504
and this part.
Sec. Sec. 1850.111-1850.119 [Reserved]
Sec. 1850.120 General prohibitions against discrimination against
individuals with disabilities.
(a) No qualified individual with a disability shall, on the basis
of such disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability--
(i) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is necessary
to provide qualified individuals with disabilities with aid, benefits,
or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with a disability in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit, or service.
(2) A qualified individual with a disability may not be excluded
from participation in any of the agency's programs or activities, even
though permissibly separate or different programs or activities exist.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the agency, or;
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The agency, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with disabilities
to discrimination on the basis of disability.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may the
agency establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by
the agency are not, themselves, covered by this part.
(c) The exclusion of nondisabled individuals from the benefits of a
program limited by Federal statute or Executive order to individuals
with disabilities or the exclusion of a specific class of individuals
with disabilities from a program limited by Federal statute or
Executive order to a different
[[Page 5422]]
class of individuals with disabilities is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
Sec. Sec. 1850.121-1850.129 [Reserved]
Sec. 1850.130 Employment of qualified individuals with disabilities.
No qualified individual with a disability shall, on the basis of
such disability, be subject to discrimination in employment under any
program or activity conducted by the agency. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791), as established by the Equal Employment
Opportunity Commission in 29 CFR part 1614, shall apply to employment
in federally conducted programs or activities.
Sec. Sec. 1850.131-1850.139 [Reserved]
Sec. 1850.140 Program accessibility: Discrimination against
qualified individuals with disabilities prohibited.
Except as otherwise provided in Sec. 1850.150, no qualified
individual with disabilities shall, because the agency's facilities are
inaccessible to or unusable by individuals with disabilities, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. Sec. 1850.141-1850.149 [Reserved]
Sec. 1850.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. This
paragraph does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden
of proving that compliance with Sec. 1850.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the agency head or the
agency head's designee after considering all agency resources available
for use in the funding and operation of the conducted program or
activity and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action would result in such an
alteration or such burdens, the agency shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits and services of the program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with disabilities. The agency
is not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give
priority to those methods that offer programs and activities to
qualified individuals with disabilities in the most integrated setting
appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 1850.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with disabilities. In cases where a physical alteration to an historic
property is not required because of Sec. 1850.150(a)(2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning individuals to guide individuals with disabilities
into or through portions of historic properties that cannot otherwise
be made accessible; or
(iii) Adopting other innovative methods.
Sec. 1850.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with disabilities. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
Sec. Sec. 1850.152-1850.159 [Reserved]
Sec. 1850.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with a disability.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with parties by telephone,
telecommunication devices for deaf individuals or equally effective
telecommunication systems shall be used to communicate with individuals
with impaired hearing.
(b) The agency shall ensure that interested individuals, including
individuals with impaired vision or hearing, can obtain information as
to the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action
that it can demonstrate would result in a
[[Page 5423]]
fundamental alteration in the nature of a program or activity or in
undue financial and administrative burdens. In those circumstances
where agency personnel believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the agency has the burden of
proving that compliance with this section would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the agency head or the
agency head's designee after considering all agency resources available
for use in the funding and operation of the conducted program or
activity and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with disabilities receive the benefits and
services of the program or activity.
Sec. Sec. 1850.161-1850.169 [Reserved]
Sec. 1850.170 Compliance procedures.
(a) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791). See Directive No. 51, Equal Employment Opportunity, Non-
Discrimination Policy, for procedural information.
(b) All complaints of discrimination on the basis of disability in
programs and activities conducted by the agency shall be filed under
the procedures described in this paragraph.
(1) Who may file. Any individual who believes that they have been
subjected to discrimination prohibited by this part, or an authorized
representative of such individual, may file a complaint. Any individual
who believes that any specific class of individuals has been subjected
to discrimination prohibited by this part and who is a member of that
class or the authorized representative of a member of that class may
file a complaint. A charge on behalf of an individual or member of a
class of individuals claiming to be aggrieved may be made by any
individual, agency, or organization.
(2) Where and when to file. Complaints shall be filed with the
Director, Office of Equal Employment Opportunity (EEO Director), U.S.
Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC
20036 within 35-calendar days of the alleged act of discrimination. A
complaint filed by personal delivery is considered filed on the date it
is received by the EEO Director. The date of filing by facsimile or
email is the date the facsimile or email is sent. The date of filing by
mail is determined by the postmark date; if no legible postmark date
appears on the mailing, the submission is presumed to have been mailed
five days (excluding days on which the agency is closed for business)
before its receipt. The date of filing by commercial overnight delivery
is the date the document was delivered to the commercial overnight
delivery service.
(3) Acceptance of complaint. (i) The agency shall accept a complete
complaint that is filed in accordance with paragraph (b) of this
section and over which it has jurisdiction. The EEO Director shall
notify the complainant of receipt and acceptance of the complaint.
(ii) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate entity.
(iii) If the EEO Director receives a complaint that is not
complete, the Director shall notify the complainant that additional
information is needed. If the complainant fails to complete the
complaint and return it to the EEO Director within 15 days of the
complainant's receipt of the request for additional information, the
EEO Director shall dismiss the complaint with prejudice and shall
inform the complainant.
(4) Initial decision. Within 180 days of the receipt of a complete
complaint, the EEO Director shall notify the complainant of the results
of the investigation in an initial decision containing--
(i) Findings of fact and conclusions of law;
(ii) When applicable, a description of a remedy for each violation
found; and
(iii) A notice of the right to appeal.
(5) Appeals. Any appeal of the EEO Director's initial decision must
be filed with the Principal Deputy Special Counsel (PDSC), U.S. Office
of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036
by the complainant within 35 days of the date the EEO Director issues
the decision required by paragraph (b)(4) of this section. The agency
may extend this time for good cause when a complainant shows that
circumstances beyond the complainant's control prevented the filing of
an appeal within the prescribed time limit. An appeal filed by personal
delivery is considered filed on the date it is received by the PDSC.
The date of filing by facsimile is the date of the facsimile. The date
of filing by mail is determined by the postmark date; if no legible
postmark date appears on the mailing, the submission is presumed to
have been mailed five days (excluding days on which the agency is
closed for business) before its receipt. The date of filing by
commercial overnight delivery is the date the document was delivered to
the commercial overnight delivery service. The appeal should be clearly
marked ``Appeal of Section 504 Decision'' and must contain specific
objections explaining why the complainant believes the initial decision
was factually or legally wrong. A copy of the initial decision being
appealed should be attached to the appeal letter.
(6) Appeal decision. The PDSC shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the PDSC needs additional information from the complainant, the PDSC
shall have 60 days from the date the additional information is received
to make a determination on the appeal.
(7) Extension of time. The time limits cited in paragraphs (b)(2)
and (5) of this section may be extended for an individual case when the
PDSC determines there is good cause, based on the particular
circumstances of that case, for the extension.
(8) Delegation of authority. The agency may delegate its authority
for conducting complaint investigations to other Federal agencies or
may contract with a nongovernmental investigator to perform the
investigation, but the authority for making the final determination may
not be delegated to another entity.
(c) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with disabilities.
Sec. Sec. 1850.171-1850.999 [Reserved]
[FR Doc. 2022-01560 Filed 1-31-22; 8:45 am]
BILLING CODE P
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</html>Indexed from Federal Register on February 1, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.