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Rule2022-22155

Prohibited Personnel Practices, Disclosures of Information Evidencing Wrongdoing, FOIA, Production of Records or Testimony, Privacy Act, and Disability Regulations To Conform With Changes in Law and Filing Procedures and Other Technical Changes

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Published

October 19, 2022

Effective

October 19, 2022

Issuing agencies

Special Counsel Office

Abstract

The U.S. Office of Special Counsel (OSC) revised its regulations to update the information on 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 201 (Wednesday, October 19, 2022)</title>
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[Federal Register Volume 87, Number 201 (Wednesday, October 19, 2022)]
[Rules and Regulations]
[Pages 63401-63419]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22155]

========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

========================================================================

Federal Register / Vol. 87, No. 201 / Wednesday, October 19, 2022 /
Rules and Regulations

[[Page 63401]]

OFFICE OF SPECIAL COUNSEL

5 CFR Chapter 18

Prohibited Personnel Practices, Disclosures of Information
Evidencing Wrongdoing, FOIA, Production of Records or Testimony,
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: Final rule.

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

SUMMARY: The U.S. Office of Special Counsel (OSC) revised its
regulations to update the information on 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: This final rule is effective October 19, 2022.

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#5b3d2937323a322834351b342838753c342d">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

I. Background

OSC published proposed regulations on February 1, 2022. See 87 FR
5409. OSC solicited public comment on those proposed regulations, and
the 30-day comment period ended March 4, 2022. OSC has considered the
comments and is issuing this final rule.

II. Overview of Comments Received

In response to the proposed rule, OSC received five sets of
comments. Two were from individuals; two were from organizations; and
one was from a consortium of three organizations. One of the
organizations endorsed the consortium's comments. The consortium then
amended its comments to cross-endorse the endorsing organization's
comments. In this document OSC refers collectively to these cross-
endorsing organizations as ``the consortium.'' In the first section we
address general comments. In the sections that follow we address
comments related to specific sections of the rule. OSC did not receive
any comments concerning its Hatch Act program at Sec. 1800.4, its
regulations governing Production of Records or Testimony at subpart B
of part 1820, or its disability regulations at part 1850.

III. General Comments

Comment: An individual commenter noted that the proposed rule did
not cite to section 1097(m) of the National Defense Authorization Act
for Fiscal Year 2018, Public Law 115-91.
OSC Response: In the Proposed Rule, OSC set forth the statutory
authority for issuing the Rule. Under section 1097(m), OSC was ``to
prescribe regulations as may be necessary to perform'' the functions of
the office, including any functions that are required by changes in
section 1097. OSC determined that no new regulations were necessary to
perform the functions of the office.
Comment: The consortium asked that OSC convene a town hall to hear
from stakeholders to ``improve'' the rule and to ``develop regulations
reinforcing what has worked, and fixing what has not.''
OSC Response: The Administrative Procedure Act establishes the
process for commenting on proposed rules. Accordingly, OSC respectfully
declines the request to host a town hall meeting. OSC further notes
that it maintains continual contact with stakeholders.
Comment: The consortium suggested that OSC expand its regulations
to encompass its Alternate Dispute Resolution (ADR) program.
OSC Response: OSC has added Sec. 1800.2(d) about its ADR program.
OSC also refers interested persons to its public website--which
includes a detailed description of OSC's ADR program--linked here:
<a href="https://osc.gov/Services/Pages/ADR.aspx">https://osc.gov/Services/Pages/ADR.aspx</a>.
Comment: The consortium asked that the rule ``inform employees of
the nature of available relief and the criteria to grant it . . . [and]
include an assessment for damages caused by the pain and suffering of
whistleblower retaliation and the traumatic stress it causes.''
OSC Response: OSC declines to include in its regulations
information about remedies potentially available to employees who file
Prohibited Practices Personnel (PPP) complainants with OSC because OSC
does not have the authority to award relief--that authority rests with
the Merit Systems Protection Board (MSPB). See 5 U.S.C. 1221. The MSPB
has issued its own regulations that may be responsive to the
consortium's request. OSC's website does include information about
potentially available remedies. All agencies have an ongoing duty to
inform their employees of the rights and remedies available to the
employees under civil service and whistleblower protection laws. See 5
U.S.C. 2302(c).
Section IV below includes OSC's responses to comments targeted at
specific provisions in the proposed rule.

IV. Specific Comments

Comments on Part 1800--Filing of Complaints and Allegations

Comments on Sec. 1800.2(c)

Comment: The consortium objected to Sec. 1800.2(c)'s requirement
that filers use OSC's Form 14 to file complaints, alleging that this
rule might unduly burden certain filers, and suggesting that OSC look
to the Department of Labor's (DOL's) whistleblower complaint program
within the Occupational Safety and Health Administration (OSHA) process
as a model for accepting whistleblower complaints. It further argued
that filers ``need tools and guidance that is accessible and valuable
to them in a language that they can understand.''
OSC Response: OSC has successfully used Form 14 as its exclusive
online complaint form for PPPs since August 26, 2019. OSC published
Form 14 for public comment on October 15, 2019. See 84 FR 55188
(October 15, 2019). None of the commenters responding to this proposed
rule commented on the proposed Form 14 at that time or to the 30-Day
Notice and Request for Comments published at 85 FR 5725-26 (January 31,
2020). OSC prefers that individuals who file disclosures or Hatch Act
complaints use the online Form 14 but will accept submissions in other
formats. See Sec. Sec. 1800.3 and 1800.4.

[[Page 63402]]

The structured OSC Form benefits PPP filers by eliciting key
information and then guiding filers to organize facts and allegations
in a useful and readable way. Prior to the use of Form 14, and its
predecessor Form 11, OSC intake staff often found it inefficient and
time-consuming to determine the nature of the PPP claim(s) involved
leading to longer wait times before filers received a substantive
response. Form 14 has improved OSC's ability to efficiently and
effectively review PPP complaints at the intake stage because OSC's
intake unit spends less time requesting and waiting for filers to
provide additional information.
DOL's OSHA program is not analogous to OSC's process. OSHA handles
complaints from non-Federal employees from broad and varied
backgrounds/industries, investigates private and corporate entities,
and administers 24 separate whistleblower laws. In contrast, OSC has a
limited and unique mission to safeguard the merit system and to act as
a safe channel for certain disclosures of wrongdoing within the
Executive Branch. DOL's OSHA operations therefore should not be
considered ``similarly situated'' and do not provide a good point of
comparison for evaluating complaint filing systems.
As for any potential burden on non-professional or disabled
persons, OSC also already successfully processes complaints from
federal employees in or job applicants for ``nonprofessional'' jobs,
and from disabled persons. If OSC needs additional information or
clarification from the filer, OSC first opens a complaint file, and
then seeks supplemental information and clarification from the filer
once the file is opened.
Filers who prefer not to answer in the space provided on Form 14
itself may address the Form's questions and provide supplemental
information in a separate letter or document, but in any event the
complainant must include a signed Form 14 with their submission. OSC's
website contains detailed instructions on how to file a PPP complaint
along with ``Useful Tips'' if filers encounter difficulty accessing or
submitting the Form. See <a href="https://osc.gov/pages/file-complaint.aspx">https://osc.gov/pages/file-complaint.aspx</a>.
Also, Sec. 1800.2(c) includes contact details for OSC's intake
division. And, as OSC notes on the website and on Form 14, OSC's
program specialists, who staff the Complaints Review Division (CRD),
are available to answer inquiries and provide further assistance via
<a href="/cdn-cgi/l/email-protection#fd94939b92bd928e9ed39a928b">[email&#160;protected]</a> or CRD's telephone hotline, 202-804-7000. For example, CRD
specialists assist filers who need help completing or accessing Form
14; clearing any errors in accessing or submitting the form; obtaining
a PDF copy of the form; or submitting a completed form/attachments for
manual processing.
OSC's ongoing IT improvements should further allay the commenters'
concerns about challenges for some filers to use Form 14. OSC will be
introducing a web-based Form 14 to increase ease of access to Form 14.
OSC's web-based Form 14 will also comply with ADA/Rehabilitation Act
requirements.
Comment: The consortium asserts that Sec. 1800.2(c)(3) should
``tell complainants what is necessary for OSC to open a field
investigation and explain the level of evidence needed.'' An individual
commenter and the consortium also asked that the rule include greater
detail regarding how OSC exercises discretion in carrying out its
statutory authorities under 5 U.S.C. 1212.
OSC Response: By statute, OSC investigates all PPP complaints it
receives. The proposed regulation is not intended to delimit how OSC
exercises its discretion to determine when OSC's investigation has
uncovered sufficient evidence to make statutorily required
determinations. These decisions are inherently individualized and made
on a case-by-case basis. The 14 PPPs enumerated at 5 U.S.C. 2302
address an array of prohibited actions across the breadth of the civil
service. OSC cannot propose regulations that would capture all the
factors OSC may rely on to evaluate each prospective PPP complaint--
especially because many complainants include allegations of more than
one PPP in their complaint. Generally, though, OSC considers the same
factors as any law enforcement agency--namely, the statutory authority,
relevant case law, the recency of the alleged PPP, seriousness of harm,
impact on important government interest, likelihood for success,
potential for meaningful remedies, available resources, and any other
factors the Special Counsel deems pertinent.
Most importantly, though, these decisions are committed to the
discretion of the Special Counsel, who is entrusted to protect the
integrity of the merit system. A detailed, circumscribed regulation
limiting the Special Counsel in exercising prosecutorial discretion
would undermine the very independent judgment that the Special Counsel
is required to exercise.
Courts have consistently declined to question or interfere with
OSC's exercise of prosecutorial discretion. See Carson v. U.S. Office
of Special Counsel, 633 F.3d 487, 493 (6th Cir. 2011) (district court
has no jurisdiction to consider OSC's jurisdictional determinations or
merits of its investigations); DeLeonardis v. Weiseman, 986 F.2d 725,
727 (5th Cir. 1993) (``We agree with our colleagues of the D.C. Circuit
that when [OSC] decides to terminate an investigation that it began
pursuant to a complaint, the decision is not reviewable.''); and Wren
v. Merit Sys. Prot. Bd., 681 F.2d 867, 876 n. 9 (D.C. Cir. 1982) (``It
is also quite clear from the statutory language and corresponding
legislative history that Congress did not mean to make [OSC's]
decisions to terminate or conduct an investigation or bring a
proceeding before the Board reviewable on the merits.'').
Comment: The consortium also complained that the regulations do not
reflect what it describes as ``unpublished policies for case
disposition,'' including regarding closing cases at the end of certain
settlement negotiations.
OSC Response: OSC treats each PPP complaint individually and does
not have ``unpublished policies for case disposition.'' Before OSC
terminates any investigation, 5 U.S.C. 1214(a)(1)(D) requires OSC to
provide the filer with a written status report of the proposed findings
of fact and legal conclusions. The filer may then submit written
comments about the report to the Special Counsel within 10 days. After
the comment period passes and OSC terminates the investigation, section
1214(a)(2) requires that OSC provide the filer in writing: a notice
that the investigation has been terminated; a summary of the relevant
facts; the reasons for terminating the investigation; and a response to
any comments submitted by the filer. These statements explain OSC's
reasons for a case disposition, including when a complainant declined a
settlement proposal that OSC considers a reasonable offer from the
Agency that allegedly committed the PPP.
Comment: The comment alleging ``unpublished policies'' also asked
that the final rule require OSC to inform the surviving family of
deceased complainants of the survivors' ``rights as beneficiaries'' if
a complainant dies during settlement negotiations.
OSC Response: In the sad, unfortunate circumstance the comment
describes, OSC staff would not be able to inform survivors of their
rights as beneficiaries because OSC cannot provide legal advice, but
OSC has and will alert survivors to the possibility that they have
legal rights.

[[Page 63403]]

Comment: The consortium requested that the regulations include ``an
institutionalized right for complainants to testify and answer
questions from an OSC representative on the full scope of supporting
evidence'' for a PPP complaint, as well as to rebut agency responses,
noting that DOL's OSHA regulations for the 24 corporate whistleblower
laws provide this type of guidance.
OSC Response: As noted above, OSC considers the comparison to DOL's
OSHA whistleblower protection inapposite. OSC's Form 14 is a thorough
questionnaire that guides complainants to provide detailed information
and support for their claims. OSC staff are skilled in assessing the
need for additional information and, if necessary, soliciting relevant
information. A mandatory requirement such as the one the consortium
proposes would interfere with OSC's efficiency, effectiveness, and
discretion. As discussed above, before OSC terminates any
investigation, it provides ``a written status report to the person who
made the allegation of the proposed findings of fact and legal
conclusions'' and ``[t]he person may submit written comments about the
report.'' 5 U.S.C. 1214(a)(1)(D). If OSC terminates an investigation,
it explains to the complainant the reasons why. See 5 U.S.C.
1214(a)(2). OSC's case closure letters also inform PPP complainants
asserting whistleblower reprisal complaints based on violations of 5
U.S.C. 2302(b)(8) and (b)(9) that the complainants may further pursue
their claims at the MSPB as an Individual Right of Action (IRA) appeal.
See 5 U.S.C. 1214(a)(3)(A) and 1221(a). If OSC has not completed its
investigation within 120 days after the complainant filed with OSC, the
complainant may file an IRA appeal directly with the MSPB. See 5 U.S.C.
1214(a)(3)(B).
Comment: The consortium stated that Sec. 1800.2(c) allowing anyone
to file a PPP complaint is too broad and needs further definition.
OSC Response: Under 5 U.S.C. 1214(a)(1)(A), OSC cannot limit who
can file a PPP complaint. Instead, it requires the Special Counsel to
receive any allegation of a PPP and to investigate. Section 1800.2(c)
appropriately reflects this statutory provision. Further, the operative
analysis does not turn on the identity of the complainant or even
whether the complainant was harmed but rather on whether OSC has
jurisdiction to investigate the employing entity and whether the
complaint on its face states the elements of a PPP. OSC therefore
declines to change this section.

Comments on Sec. 1800.2

Comment: The consortium commented that the proposed rule ``does not
even inform employees'' of OSC's option to negotiate with an agency to
obtain a voluntary ``stay'' to temporarily halt an agency's proposed or
final determination on an adverse action, or of OSC's statutory option
to seek a formal stay.
OSC Response: As for formal stays, 5 U.S.C. 1214(b)(1)(A)(i)
provides the authority for OSC to seek a formal stay from the Merit
Systems Protection Board, so it is unnecessary to repeat it in the
regulations. The statute also grants the discretionary authority to the
Special Counsel in selecting cases appropriate for stays. In addition,
an employee seeking corrective action from OSC based on allegations of
whistleblower reprisal may request a stay directly from the MSPB
without waiting for OSC to act. See 5 U.S.C. 1221(c)(1).
With respect to informal stays from agencies, OSC believes it is
impractical to issue a regulation governing its use of informal stays.
OSC may request that an agency temporarily stay an adverse action
during the OSC investigation. This is one of many informal actions that
OSC may seek when OSC has reasonable grounds to believe that the facts
and circumstances warrant such a request.
OSC's website provides information about OSC's stay authority,
including the availability of informal stays. See, e.g., <a href="https://osc.gov/Documents/PPP/Policy%20Statements/Policy%20Statement%20on%20Stays%20of%20Personnel%20Actions.pdf">https://osc.gov/Documents/PPP/Policy%20Statements/Policy%20Statement%20on%20Stays%20of%20Personnel%20Actions.pdf</a>.
Comment: The consortium asked that the rule ``define standards for
determining what and who will be redacted from the public record, such
as agency reports, whistleblower comments, referral letters, etc.''
OSC Response: In determining how best to protect the privacy
interests of persons whose names and/or identities might otherwise be
exposed to unwarranted invasions of their personal privacy OSC follows:
the Privacy Act, 5 U.S.C. 552a; exceptions to the Privacy Act set forth
in OSC's Routine Uses, 82 FR 45076 (September 27, 2017); and OSC's
governing statutes, 5 U.S.C. 1212(g)(1) and 1213(h).

Comments on Sec. 1800.3

Comment: The consortium asked that Sec. 1800.3 be clarified to
identify who is eligible to file disclosures under 5 U.S.C. 1213.
OSC Response: OSC respectfully directs all commenters to the text
of 5 U.S.C. 1213, which states that OSC accepts disclosures from
federal employees, former federal employees, or applicants for federal
employment.
Comment: The organizational commenters asked that OSC's regulations
include a description of OSC's authority under 5 U.S.C. 1213(g) to
refer disclosures for ``preliminary review'' when supported by the
lesser standard of a ``reasonable belief'' and explain the difference
between the ``reasonable belief'' and ``substantial likelihood''
standards.
OSC Response: OSC respectfully notes that the comment is based on
an apparent misreading of the relevant statute. Section 1213(g) does
not refer to a ``reasonable belief'' standard.
Comment: An individual commenter and the consortium asked that the
rule include greater detail regarding how OSC exercises discretion in
carrying out its statutory authorities ``investigating cases where a
federal employee whistleblower discloses wrongdoing by the federal
agency employer'' under section 1213.
OSC Response: These comments appear to mis-read OSC's statutory
authorities. Section 1213 does not authorize OSC to investigate
disclosures of wrongdoing, only to refer allegations to the appropriate
agency head.
Comment: The organizational commenters asked that the regulations
provide ``OSC's decision-making criteria for acceptance of agency
reports'' and ``disclose all material Disclosure Unit procedures and
standards.''
OSC Response: The requirements for agency reports are set forth in
5 U.S.C. 1213(d). OSC does not currently have any written procedures or
standards that further define the statutory standard. OSC does have an
Appendix that sets forth requirements and guidance for the agency
creating the report, which is available on OSC's website and which OSC
sends to the agency head when OSC refers a matter for investigation.
When the Special Counsel receives a report, OSC forwards it to the
complainant so the complainant may submit comments to the Special
Counsel. The Special Counsel reviews the agency's report and determines
whether ``the findings of the head of the agency appear reasonable.'' 5
U.S.C. 1213(e)(2)(A). The Special Counsel may require the head of the
agency to submit a supplemental report if the Special Counsel concludes
that additional information or documentation is needed to determine
whether the report is ``reasonable and sufficient.'' 5 U.S.C.
1213(e)(5). Public examples of OSC referral letters with appendices,
agency reports, whistleblower comments, and

[[Page 63404]]

agency supplemental reports can be found in the Public Files section of
OSC's website at <a href="https://osc.gov">https://osc.gov</a>.
Comment: The consortium critiqued how agency Offices of Inspectors
General (OIG) conduct investigations of alleged wrongdoing, especially
regarding some OIG's alleged failures to interview ``key witnesses''
and ``alleged wrongdoers'' who have left their respective agencies. The
consortium then asked that OSC's proposed rule ``address both the
standards for investigating agencies more specifically and the
procedures for handling agency evasion of complete investigations and
reports that respond to the issues identified by Special Counsel's
referral letter.''
OSC Response: OSC, like OIGs, is limited by its statutory
authority. OSC has the statutory authority to refer a disclosure of
wrongdoing to the head of an Agency for investigation, but no authority
to mandate that Agencies pursue witnesses who have left federal
employment. Likewise, OIGs currently do not have statutory authority to
compel testimony from employees that have resigned or otherwise left
government service. OSC publishes its current investigation guidance
document to Agencies (Appendix) on its website. <a href="https://osc.gov/Documents/Public%20Files/1213%20Appendix.pdf">https://osc.gov/Documents/Public%20Files/1213%20Appendix.pdf</a>. This guidance directs
Agencies to interview the whistleblower if the whistleblower has
consented to disclosure of their identity.
Comment: The consortium also commented that the final regulation
``should disclose all OSC policies that are material for action on . .
. whistleblowing procedures.''
OSC Response: OSC has added Sec. 1800.3(a)(1) to the final rule to
reflect the Disclosure Unit's deferral policy when OSC and the Agency
receive overlapping information/disclosures.

Comments on Part 1820--Freedom of Information Act Requests; Production
of Records or Testimony

Comments on Sec. 1820.2
Comment: An organizational commenter objected to OSC's proposed
change to Sec. 1820.2(a)(2) and (b) to require the FOIA request letter
or email to use the terms ``FOIA Request'' or ``FOIA/Privacy Request.''
OSC Response: OSC works to achieve the goals of FOIA, including
promoting expeditious, efficient responses to requests for information.
OSC must therefore ensure that communications are quickly forwarded to
OSC's FOIA unit. This labeling requirement helps OSC achieve these aims
and does not appear to overly burden the filer. OSC therefore declines
to change Sec. 1820.2(a)(2) and (b).
Comment: An organizational commenter objects that proposed Sec.
1820.2(d) deems a FOIA requestor to have agreed to pay all applicable
fees up to $25 ``unless the Special Counsel waives fees, the requestor
is exempt, or the requestor otherwise qualifies for a waiver of fees.''
The organizational commenter argues that this proposed provision means
that a FOIA requestor would automatically be deemed to have agreed to
pay all applicable fees whenever OSC denies a fee waiver request.
Moreover, in that case a FOIA requestor would further be deemed to have
agreed to pay all applicable fees even if their FOIA request expressly
limited the amount of fees they were willing to pay.
The commenter suggested that, instead, the final rule should
require OSC to notify requestors of a fee waiver denial and provide the
requestor the opportunity to specify or limit the amount of fees they
are willing to pay before OSC begins processing the FOIA request--i.e.,
before any fees are incurred. OSC would also honor any fee limitation
the requestor specified in the FOIA request or in its response to OSC's
fee waiver denial.
OSC Response: OSC has revised Sec. 1820.7(d) to clarify its fee
waiver provisions.
Comment on Sec. 1820.4
Comment: A commenter wanted the rule to incorporate the statutory
language ``Multiple requests involving unrelated matters shall not be
aggregated.'' As stated in the General Provisions to part 1820, ``These
rules and procedures should be read together with the FOIA . . .'', and
the FOIA already precludes such aggregation of unrelated matters. OSC
accordingly respectfully declines to adopt the proposed change to Sec.
1820.4(d) and (f).
Comments on Sec. 1820.7
Comment on Sec. 1820.7(a): Two commenters puzzled over the
sentence: ``In exceptional circumstances, OSC may charge fees after
determining that unusual circumstances exist.''
OSC Response: OSC updated Sec. 1820.7(a) to read, ``In exceptional
circumstances, OSC may charge fees.''
Comment on Sec. 1820.7(b): A commenter asked that OSC include a
fee category included in the FOIA statute: ``All other requestors.''
OSC Response: OSC added a definition of ``all other requestors'' to
Sec. 1820.7(b).
Comment on Sec. 1820.7(e): An organizational commenter also
objects to the new 1820.7(e), which allows OSC to charge an additional
fee if it needs to provide a special service, such as shipping records
by other than ordinary mail. The commenter proposes that the new
section require OSC to seek advance approval before charging for the
special services if they ``are not necessary to respond to the
request.''
OSC Response: OSC adopted the suggested change and revised Sec.
1820.7(e) accordingly.
Comment: An organizational commenter objected to the provisions
regarding public interest fee waivers in proposed Sec.
1820.7(h)(2)(ii) and (h)(3)(ii) as overly narrow. The commenter argued
that the final rule should exclude the reference to the ``releasable
portions'' of the requested records in Sec. 1820.7(h)(2)(ii) on the
grounds that a requestor's entitlement to a public interest fee waiver
``should be evaluated based on the face of the request'' and should not
turn on whether the records are ultimately found to be ``exempt from
disclosure'' unless they are ``patently exempt documents. Carney v.
U.S. Dep't of Justice, 19 F.3d 807, 815 (2d Cir. 1994); see also, e.g.,
Citizens for Resp. & Ethics in Washington v. U.S. Dep't of Just., 602
F. Supp. 2d 121, 125-28 (D.D.C. 2009).''
OSC Response: OSC adopted the suggested change and revised Sec.
1820.7(h)(2)(ii) and (h)(3)(ii) accordingly.
Comment: An organizational commenter noted that the relevant
balancing test in Sec. 1820.7(h)(3)(ii) should be whether the
commercial interest outweighs the public interest, not whether the
public interest outweighs the commercial interest. The commenter noted
that, for disclosure to be ``not primarily in the commercial interest
of the requester,'' the public interest in disclosure needs to be only
equal to the commercial interest. The commenter asserted that the
public interest in disclosure does not need to be ``greater in
magnitude than'' the commercial interest and asked that OSC exclude
that test from the final rule.
OSC Response: OSC adopted the suggested change and revised Sec.
1820.7(h)(3)(ii) accordingly.

Comments on Part 1830--Privacy Act Regulations

Comment: An organizational commenter suggested changing
``physician'' to ``licensed health care professional'' in Sec. 1830.4.
OSC Response: OSC adopted the suggested change and revised Sec.
1830.4 accordingly.

[[Page 63405]]

Part 1850--Enforcement of Nondiscrimination on the Basis of Disability
in Programs or Activities Conducted by the Office of Special Counsel

OSC received no comments on this part but has made a non-
substantive change to Sec. 1850.170(b)(2) by updating the contact
information because OSC no longer accepts fax submissions.

Final Rule

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 rule is not a regulatory
action under Executive Order (E.O.) 13771 because OSC does not
anticipate that proposed rule will have significant economic impact,
raise novel issues, and/or have any other significant impacts. Thus,
this 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 rule
is not subject to the CRA because it falls under the exception provided
at 5 U.S.C. 804(3)(C).
Regulatory Flexibility Act (RFA): The RFA does not apply because
this 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 rule 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 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 Part 1811

Contracting with an inspector general.

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: October 6, 2022.
Travis G. Millsaps,
Deputy Special Counsel for Public Policy.

For the reasons stated in the preamble, OSC issues this final rule
to amend chapter 18 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. 301, 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 and should be read in
concert with these statutory provisions. 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> 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 prohibited personnel practices
enumerated at 5 U.S.C. 2302 were committed against current or former
Federal employees or applicants for Federal employment, including:
(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

[[Page 63406]]

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 covered by the Hatch Act at title 5 of the U.S. Code, chapter
15;
(3) Arbitrary and capricious withholding of information that should
be released pursuant to 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 (USERRA), 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. OSC will, however, accept material supplementing the contents
of Form 14, as long as the filer also submits a signed form. If a filer
does not use this form to submit a complaint, OSC will provide the
filer with information about the form and obtain a signature on 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 filer 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: U.S. 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#90f9fef6ffd0ffe3f3bef7ffe6">[email&#160;protected]</a>; or
(iii) By mail to: U.S. Office of Special Counsel, 1730 M Street NW,
Suite 218, Washington, DC 20036-4505.
(d) Alternate Dispute Resolution. For selected cases, OSC may offer
Alternative Dispute Resolution (ADR) pursuant to the voluntary
Alternative Dispute Resolution Act of 1998, 5 U.S.C. 571-573. OSC
provides information about its ADR program and process on its website
at <a href="https://osc.gov">https://osc.gov</a>.

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. Within 45 days of receipt of the disclosure, 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; and the agency head
must submit the report to the Special Counsel. OSC may not disclose the
identity of an individual who makes the disclosure unless the
individual consents or the Special Counsel determines that the
disclosure of the identity is necessary because of an imminent danger
to public health or safety or imminent violation of any criminal law.
The law does not authorize OSC to investigate any disclosure.
(1) Deferral policy for certain disclosures. When OSC determines
that a disclosure is being or has been investigated by an Agency, OSC
will usually defer to such investigation rather than make a substantial
likelihood determination.
(b) Procedures for filing disclosures. Current or former Federal
employees and applicants for Federal employment may file with OSC a
disclosure of the type of information described in 5 U.S.C. 1213(a)(1).
Such disclosures must be filed in writing.
(1) Filers are encouraged to use the OSC complaint form, which is
available online, to file a disclosure of the type of information
described in 5 U.S.C. 1213(a)(1). OSC's complaint 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> (may be completed online or printed
out and completed on paper);
(ii) By writing to OSC at: U.S. 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.

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 (Form
14) 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: U.S. Office of Special Counsel, 1730 M
Street NW, Suite 218, Washington, DC 20036-4505.
(2) Complaints alleging a violation of the Hatch Act not submitted
on Form 14 may also be submitted in any written form, and should
include:

[[Page 63407]]

(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) Written Hatch Act complaints including the information in
1800.4(a)(2) above may be filed with OSC:
(i) By email to: <a href="/cdn-cgi/l/email-protection#d7bfb6a3b4bfb6b4a397b8a4b4f9b0b8a1">[email&#160;protected]</a>; or
(ii) By mail to: U.S. 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 certain 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#4820293c2b20292b3c08273b2b662f273e">[email&#160;protected]</a>;
(2) By mail to: U.S. Office of Special Counsel, Hatch Act Unit,
1730 M Street 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. 301 and 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), 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. Add part 1811 to read as follows:

PART 1811--OUTSIDE INSPECTOR GENERAL

Authority: 5 U.S.C. 1212(i).

Sec. 1811.1 Requirement to contract with an outside inspector
general.

The Special Counsel shall enter into at least one agreement with
the Inspector General of an agency under which--
(1) the Inspector General shall--
(A) receive, review, and investigate allegations of prohibited
personnel practices or wrongdoing filed by employees of the Office of
Special Counsel; and
(B) develop a method for an employee of the Office of Special
Counsel to communicate directly with the Inspector General; and
(2) the Special Counsel--
(A) may not require an employee of the Office of Special Counsel to
seek authorization or approval before directly contacting the Inspector
General in accordance with the agreement; and
(B) may reimburse the Inspector General for services provided under
the agreement.

0
4. 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--Production of Records or Testimony
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.

[[Page 63408]]

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#1e7871777f6c7b6f6b7b6d6a5e716d7d30797168">[email&#160;protected]</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 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

[[Page 63409]]

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 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 5000 pages.
(b) 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
(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#d4b2bbbdb5b5a4a4b1b5b894bba7b7fab3bba2">[email&#160;protected]</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. 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 10,012, 10,017-18 (Mar. 27,
1987).
(b) Definitions. For purposes of this section:
All other requestors means all requestors who do not fall into the
categories of commercial use, educational institution, noncommercial
scientific institution, and representatives of the news media.
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.
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.
Duplication means the reasonable direct cost of making copies of
documents.
Educational institution means any school that operates a program of
scholarly research. See OMB Fee Guidelines, 52 FR at 10,019. To be in

[[Page 63410]]

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.
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.
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.
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.
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 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 or if OSC waived fees before undertaking the search.
OSC will not conduct a search or process responsive records until OSC
and the requestor reach an agreement on the fees. If a requestor wants
to pay a lower amount than $25.00, 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.
(e) Charges for other services. OSC will notify requestors in
advance if OSC intends to charge additional fees to provide special
services, 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 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

[[Page 63411]]

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 commercial interest in the disclosure,
is equal to or less than that of any identified public interest. OSC
ordinarily shall presume that a news media requestor has satisfied the
public interest standard. Release to data brokers or others who
primarily 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.

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:
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).
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 FOIA 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 FOIA Exemption 4; or
(2) OSC has reason to believe that the records or portions of
records may be protected from release under FOIA 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.
(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 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--Production of Records or Testimony

Sec. 1820.10 Scope and purpose.

(a) This part establishes policy, assigns responsibilities, and
prescribes procedures with respect to the production of official
information, records, or testimony by current and

[[Page 63412]]

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 part 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.
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.
General Counsel means OSC's General Counsel or an individual to
whom the General Counsel has delegated authority under this part.
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.
OSC employee or employee means any current or former OSC employee
or contractor, including but not limited to OSC: temporary employees,
interns, volunteers, consultants, and/or other advisors.
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.
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.
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.

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,
with the general proviso that OSC's release of information is subject
to the Privacy Act, 5 U.S.C. 552a, and applicable privileges including
but not limited to the attorney work product and deliberative process
privileges. See especially Sec. Sec. 1830.1(e)(2)(ii) and 1830.10(a)
below. The General Counsel may also consider whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice; 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#eb848c88ab849888c58c849d">[email&#160;protected]</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 part. 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.

[[Page 63413]]

(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
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 under
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 part may be subject to
disciplinary action.

Sec. 1820.24 Conformity with other laws and regulations; other
rights.

This regulation is not intended to conflict with 5 U.S.C.
2302(b)(13) or with any statutory or common law privilege against the
release of protected information. This part 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
5. 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 releases.
1830.10 Conditions of disclosure.

Authority: 5 U.S.C. 552a(f), 301, and 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>.

[[Page 63414]]

(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 of records 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, subjects of PPP
complaints, 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, and the
subjects of USERRA complaints.
(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 (``subject
individuals'');
(ii) individuals who can prove they have the consent of the 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:
Access means availability of a record to a subject individual.
Disclosure means the availability or release of a record.
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.''
Notification means communication to an individual whether or not
they are a subject individual.
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.
Release means making available all or part of the information or
records contained in an OSC system of records.
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.
Subject individual means that individual to whom a record pertains.
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#d0b6bfb9b1a2b5a1a5b5a3a490bfa3b3feb7bfa6">[email&#160;protected]</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 licensed health
care professional the individual designates in writing. Upon receipt of
the designation, the licensed health care professional 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#7a1c15131b081f0b0f1f090e3a150919541d150c">[email&#160;protected]</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

[[Page 63415]]

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 the requestor in writing of the reason why we refuse to amend
the record, the right to appeal the refusal, and the name and address
of the official to whom the appeal should be sent.
(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#63050c0a0211061216061017230c10004d040c15">[email&#160;protected]</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 requests to amend records. 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 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 releases.

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 an
accounting for releases:
(a) Of a subject individual's records record made with the subject
individual's consent;
(b) To employees of OSC who have a need for the record to perform
their duties; and
(c) Required under the Freedom of Information Act, 5 U.S.C. 552,
and part 1820 of this chapter.

Sec. 1830.10 Conditions of release.

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 employees and contractors of the Office of Special Counsel
who have a need for the record to perform their duties.
(2) As required by the Freedom of Information Act, 5 U.S.C. 552,
and part 1820 of this chapter.
(3) To the entities listed in in the Privacy Act at 5 U.S.C.
552a(b)(1) through (12).

0
6. 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 OSC,
except for programs or activities conducted outside the United States
that do not involve individuals with disabilities in the United States.

[[Page 63416]]

Sec. 1850.103 Definitions.

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 OSC. 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.
Complete complaint means a written statement that contains the
complainant's name and address and describes OSC's alleged
discriminatory action in sufficient detail to inform OSC 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.
Days means calendar days, unless otherwise stated.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with 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:
Physical or mental impairment includes--
(1) 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
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(3) 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.
Major life activities include functions such as--
(1) 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
(2) 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.
Qualified individual with a disability means--
(1) With respect to any OSC 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 OSC's
program or activity without modifications in the program or activity
that OSC 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.
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.
Is regarded as having an impairment means--
(1) 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;
(2) 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
(3) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Section 504 means Section 504 of the Rehabilitation Act of 1973
(Pub. L. No. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. No. 93-516, 88 Stat.
1617); the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. No. 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.

OSC shall make available to all interested individuals information
regarding the provisions of this part and its applicability to the
programs or activities conducted by OSC 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 OSC.
(b) OSC, in providing any aid, benefit, or service, may not,
directly or through contractual, licensing, or other arrangements, on
the basis of disability--
(1) Deny a qualified individual with a disability the opportunity
to participate in or benefit from the aid, benefit, or service;
(2) 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;
(3) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain

[[Page 63417]]

the same result, to gain the same benefit, or to reach the same level
of achievement as that provided to others;
(4) 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;
(5) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards;
(6) 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.
(7) OSC may not exclude a qualified individual with a disability
from participation in any of OSC's programs or activities, even though
permissibly separate or different programs or activities exist.
(c) OSC may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(1) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(2) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with disabilities.
(d) OSC may not, in determining the site or location of a facility,
make selections the purpose or effect of which would--
(1) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by OSC, or;
(2) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(e) OSC, in the selection of procurement contractors, may not use
criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability.
(f) OSC 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 OSC 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 OSC are not,
themselves, covered by this part.
(g) This part does not prohibit 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 class of
individuals with disabilities.
(h) OSC 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.

OSC shall not subject any qualified individual with a disability,
on the basis of such disability, to discrimination in employment under
any program or activity OSC conducts. 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 OSC'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
OSC.

Sec. Sec. 1850.141-1850.149 [Reserved]

Sec. 1850.150 Program accessibility: Existing facilities.

(a) General. OSC 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 OSC to make each of its existing facilities
accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require OSC to
take any action that would result in a substantial impairment of
significant historic features of an historic property; or
(3) Require OSC 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 OSC personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, OSC has the burden of
proving that compliance with this paragraph (a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Special Counsel or the
Special Counsel's designee after considering all OSC 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, OSC 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. OSC 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. OSC is not required to
make structural changes in existing facilities where other methods are
effective in achieving compliance with this section. OSC, 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, OSC 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
paragraph (a) of this section in historic preservation programs, OSC
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 paragraphs (a)(2) or
(3) of this section, alternative methods

[[Page 63418]]

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 OSC 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) OSC shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) OSC 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 OSC.
(i) In determining what type of auxiliary aid is necessary, OSC
shall give primary consideration to the requests of the individual with
a disability.
(ii) OSC need not provide individually prescribed devices, readers
for personal use or study, or other devices of a personal nature.
(2) Where OSC 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) OSC 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) OSC shall provide signage at a primary entrance to each of its
inaccessible facilities, if any, 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 OSC 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 OSC personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, OSC 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 Special Counsel or
the Special Counsel's designee after considering all OSC 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,
OSC 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) OSC shall process complaints alleging violations of section 504
with respect to employment according to the procedures established by
the Equal Employment Opportunity Commission in 29 CFR part 1614
pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791).
(b) All complaints of discrimination on the basis of disability in
programs and activities conducted by OSC 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 email is the
date the 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) OSC 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 OSC 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) 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) 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. OSC may extend
this time for good cause when a complainant shows that circumstances
beyond the

[[Page 63419]]

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 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) 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) 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.
(8) OSC 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) OSC 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. 2022-22155 Filed 10-18-22; 8:45 am]
BILLING CODE 7405-01-P

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Indexed from Federal Register on October 19, 2022.

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