Prohibited Personnel Practices, Disclosures of Information Evidencing Wrongdoing, FOIA, Privacy Act, and Disability Regulations To Conform With Changes in Law and Filing Procedures and Other Technical Changes, 5409-5423 [2022-01560]

Agencies

• Office of Special Counsel

[Federal Register Volume 87, Number 21 (Tuesday, February 1, 2022)]
[Proposed Rules]
[Pages 5409-5423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01560]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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


Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / 
Proposed Rules

[[Page 5409]]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF SPECIAL COUNSEL

5 CFR Chapter VIII


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

AGENCY: U.S. Office of Special Counsel.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The U.S. Office of Special Counsel (OSC) proposes to revise 
its regulations regarding the filing of complaints and disclosures with 
OSC, to update the prohibited personnel practice provisions, Freedom of 
Information Act (FOIA) provisions, Privacy Act provisions, provisions 
concerning nondiscrimination based on disability, and to make other 
technical revisions. These revisions are intended to streamline OSC's 
filing procedures and reflect changes in law.

DATES: Interested parties should submit comments to the Office of 
Special Counsel at one of the addresses shown below on or before March 
3, 2022 to be considered in the formulation of a final rule.

ADDRESSES: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include ``FY2022 Proposed Reg 
Comments'' in the subject line of the email.
    Comments received may be posted to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Susan Ullman, General Counsel, U.S. 
Office of Special Counsel, by telephone at 202-804-7000, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    OSC is proposing to revise its regulations pursuant to OSC's 
authority at 5 U.S.C. 1212(e).

I. Changes Concerning the Filing of Complaints and Disclosures of 
Information Evidencing Wrongdoing

    The proposed rulemaking adds a new scope and purpose section at 5 
CFR 1800.1 and redesignates the current Sec. Sec.  1800.1-1800.3 as 
Sec. Sec.  1800.2-1800.4 respectively. The proposed rule revises the 
language at the new Sec.  1800.2(c)(1) through (5) and (d), and Sec.  
1800.3(b)(1) and (2) by replacing references to various OSC complaint 
forms with references to a general complaint form established by OSC, 
currently ``Form 14,'' that OMB approved on March 6, 2020. The proposed 
rule also adds a paragraph at the new Sec.  1800.2(c)(3) to define when 
a complaint contains sufficient information for OSC to investigate the 
allegations.

II. Changes Concerning Prohibited Personnel Practices and Hatch Act

    The proposed rulemaking updates the prohibited personnel practice 
provisions to use more consistent terminology throughout. It also 
amends new Sec.  1800.2(a)(9) to conform with amendments made to 5 
U.S.C. 2302(b)(9)(D) by the Follow the Rules Act, Public Law 115-40, 
and sec. 1097(c)(1)(A) of Public Law 115-91. It also adds two new 
paragraphs at the new Sec.  1800.2(a)(13)-(14), based on amendments 
made to 5 U.S.C. 2302(b)(13)-(14) which concern the use of agency 
nondisclosure agreements and the access of employee medical files in 
furtherance of a different PPP. The proposed rulemaking also moves the 
procedures for filing a Hatch Act complaint and requesting a Hatch Act 
advisory opinion into the same section.

III. Changes Concerning Disclosures of Information Evidencing 
Wrongdoing

    The proposed rulemaking amends the new Sec.  1800.3(a) to add 
language from sec. 110 of the Whistleblower Protection Enhancement Act 
of 2012, which clarified that censorship of scientific or technical 
information could qualify as a type of agency wrongdoing under 5 U.S.C. 
2302(b)(8).

IV. Clarification of OSC's Investigative Authority

    Based on sec. 1097(a) of Public Law 115-91, the proposed rulemaking 
adds a new section at 5 CFR 1810.2 to clarify OSC's right to timely 
access to all agency records, even if those records contain privileged 
information. Providing privileged information to OSC does not waive the 
agency's privilege with respect to nongovernment third parties. OSC is 
required to submit a report to Congress if an agency fails to comply 
with a request for documents from OSC. The proposed rule adds a new 
section at 5 CFR 1810.3 based on sec. 1097(f) of Public Law 115-91, 
which delineates OSC's authority to promptly terminate investigations 
if certain criteria are met. Finally, the proposed rule adds a new 
section at 5 CFR 1810.4 that states that, to protect the integrity of 
an OSC investigation, agencies should use liaisons that do not have 
perceived or actual involvement with the personnel actions at issue.

V. Changes Concerning FOIA and Privacy Act Regulations

    The proposed rule revises OSC's FOIA regulations at part 1820 by 
updating the various methods for making a FOIA request, defining 
``unusual circumstances,'' and clarifying that no fees will be assessed 
if OSC fails to make a timely response. The proposed rule also revises 
OSC's Privacy Act regulations by creating several new sections at 5 CFR 
part 1830 to add a scope and purpose section, a definitions section, 
and other sections concerning the management of records at OSC.

VI. Changes Concerning the Enforcement of Nondiscrimination Provisions

    The proposed rule revises OSC's regulations implementing the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments to the Rehabilitation Act, codified at subchapter V of 
chapter 16 of title 29 of the U.S. Code, to update various definitions, 
processes, and procedures.

Procedural Determinations

    Administrative Procedure Act (APA): This action is taken under the 
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations 
in the Federal Register.
    Executive Orders 12866 and 13771: This proposed rule is not a 
regulatory action under Executive Order (E.O.) 13771 because OSC does 
not anticipate that this proposed rule will have significant economic 
impact, raise novel issues, and/or have any other significant

[[Page 5410]]

impacts. Thus, this proposed rule is not a significant regulatory 
action under section 3(f) of E.O. 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of the 
Order.
    Congressional Review Act (CRA): OSC has determined that this 
proposed rule is not a major rule under the Congressional Review Act, 
as it is unlikely to result in an annual effect on the economy of $100 
million or more; is unlikely to result in a major increase in costs or 
prices for consumers, individual industries, federal, state, or local 
government agencies or geographic regions; and is unlikely to have a 
significant adverse effect on competition, employment, investment, 
productivity, or innovation, or on the ability of U.S.-based 
enterprises to compete in domestic and export markets. Pursuant to 5 
U.S.C. 801(a), OSC will transmit a copy of the proposed rule to each 
House of the Congress and the Comptroller General.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply, even though this proposed rule is being offered for 
notice and comment procedures under the APA. This proposed rule will 
not directly regulate small entities. OSC therefore need not perform a 
regulatory flexibility analysis of small entity impacts.
    Unfunded Mandates Reform Act (UMRA): This proposed revision does 
not impose any federal mandates on state, local, or tribal governments, 
or on the private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This proposed rule will 
have no physical impact upon the environment and therefore will not 
require any further review under NEPA.
    Paperwork Reduction Act (PRA): This rule does not contain any 
information collection requirements that require the approval of the 
Office of Management and Budget under the PRA.

List of Subjects

5 CFR Parts 1800 and 1810

    Administrative practice and procedure.

5 CFR Parts 1820 and 1830

    Archives and records, Reporting and recordkeeping requirements.

5 CFR Part 1850

    Administrative practice and procedure, Buildings and facilities, 
Equal employment opportunity, Federal buildings and facilities, 
Individuals with disabilities.

    Approved: January 21, 2022.
Travis G. Millsaps,
Deputy Special Counsel for Public Policy.

    For the reasons stated in the preamble, the U.S. Office of Special 
Counsel proposes to amend chapter VIII of title 5 of the Code of 
Federal Regulations as follows:

0
1. Revise part 1800 to read as follows:

PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS

Sec.
1800.1 Scope and purpose.
1800.2 Filing complaints of prohibited personnel practices or other 
prohibited activities.
1800.3 Filing disclosures of information evidencing wrongdoing.
1800.4 Filing complaints of Hatch Act violations and requesting 
advisory opinions.

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


Sec.  1800.1  Scope and purpose.

    The purpose of this part is to implement the U.S. Office of Special 
Counsel's (OSC) authorities at 5 U.S.C. 1212-1216. This part does not 
create new individual rights but instead is intended to inform 
individuals of filing options they may be entitled to under 5 U.S.C. 
1212-1216, and 2302. Individuals are encouraged to go to OSC's website 
at https://osc.gov at for more information about the OSC complaint form 
that should be used when filing with OSC.


Sec.  1800.2   Filing complaints of prohibited personnel practices or 
other prohibited activities.

    (a) Prohibited personnel practices. Pursuant to 5 U.S.C. 1214 and 
1215, OSC has investigative and prosecutorial jurisdiction over 
allegations that one or more of the following prohibited personnel 
practices were committed against current or former Federal employees 
and applicants for Federal employment:
    (1) Discrimination, including discrimination based on marital 
status or political affiliation (see Sec.  1810.1 of this chapter for 
information about OSC's deferral policy for discrimination complaints);
    (2) Soliciting or considering improper recommendations or 
statements about any individual requesting, or under consideration for, 
a personnel action;
    (3) Coercing political activity, or engaging in retaliation for 
refusal to engage in political activity;
    (4) Deceiving or obstructing any individual with respect to 
competition for employment;
    (5) Influencing any individual to withdraw from competition to 
improve or injure the employment prospects of another individual;
    (6) Granting an unauthorized preference or advantage to any 
individual to improve or injure the employment prospects of another 
individual;
    (7) Nepotism involving a covered relative as defined at 5 U.S.C. 
3110(a)(3);
    (8) Retaliation for whistleblowing (whistleblowing is generally 
defined as the disclosure of information by an individual who 
reasonably believes that the information evidences a violation of any 
law, rule, or regulation; gross mismanagement; a gross waste of funds; 
an abuse of authority; a substantial and specific danger to public 
health or safety; or censorship related to scientific research or the 
integrity of the scientific process if the censorship will cause one of 
the aforementioned categories of wrongdoing);
    (9) Retaliation for:
    (i) Exercising certain grievance, complaint, or appeal rights;
    (ii) Providing testimony or other assistance to any individual 
exercising such grievance, complaint, or appeal rights;
    (iii) Cooperating with the Special Counsel, an Inspector General, 
or any other agency component responsible for internal investigation or 
review; or
    (iv) Refusing to obey an order that would require the violation of 
law, rule, or regulation;
    (10) Discrimination based on conduct that would not adversely 
affect job performance;
    (11) Violating a veterans' preference requirement;
    (12) Taking or failing to take a personnel action in violation of 
any law, rule, or regulation implementing or directly concerning merit 
system principles at 5 U.S.C. 2301(b);
    (13) Implementing or enforcing any nondisclosure policy, form, or 
agreement that fails to include the statement found at 5 U.S.C. 
2302(b)(13) or fails to inform any individual that they retain their 
whistleblowing rights; and
    (14) Accessing the medical record of any individual as part of, or 
otherwise in furtherance of, any other prohibited personnel practice.
    (b) Other prohibited activities. Pursuant to 5 U.S.C. 1216, OSC 
also has investigative and prosecutorial jurisdiction over any 
allegation concerning the following:
    (1) Prohibited political activity by Federal employees covered by 
the Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;
    (2) Prohibited political activity by State and local officers and 
employees

[[Page 5411]]

covered by the Hatch Act at title 5 of the U.S. Code, chapter 15;
    (3) Arbitrary and capricious withholding of information prohibited 
under the Freedom of Information Act at 5 U.S.C. 552 (except for 
certain foreign and counterintelligence information);
    (4) Activities prohibited by any civil service law, rule, or 
regulation, including any activity relating to political intrusion in 
personnel decision-making;
    (5) Involvement by any employee in any prohibited discrimination 
found by any court or appropriate administrative authority to have 
occurred in the course of any personnel action (unless OSC determines 
that the allegation may be resolved more appropriately under an 
administrative appeals procedure); and
    (6) Pursuant to 38 U.S.C. 4324, violations of the Uniformed 
Services Employment and Reemployment Rights Act, codified at 38 U.S.C. 
4301, et seq.
    (c) Procedures for filing complaints alleging prohibited personnel 
practices or other prohibited activities (other than the Hatch Act). 
(1) Anyone may file a complaint with OSC alleging one or more 
prohibited personnel practices, or other prohibited activities within 
OSC's investigative jurisdiction. The OSC complaint form must be used 
to file all such complaints.
    (2) OSC will not process a complaint filed in any format other than 
the completed OSC complaint form designated in paragraph (c)(1) of this 
section. If a complainant does not use this form to submit a complaint, 
OSC will provide the complainant with information about the form. The 
OSC complaint form will be considered to be filed on the date on which 
OSC receives a completed form.
    (3) The OSC complaint form requests that the complainant provide 
basic information about the alleged prohibited personnel practices or 
other prohibited activities. A complaint may be amended to clarify or 
include additional allegations. A complaint is sufficient for 
investigation when OSC receives information identifying the parties, 
identifying any relevant personnel action(s), and describing generally 
the practices or activities at issue.
    (4) The OSC complaint form is available:
    (i) Online at: https://osc.gov (to print out and complete on paper, 
or to complete online);
    (ii) By writing to OSC at: Office of Special Counsel, 1730 M Street 
NW, Suite 218, Washington, DC 20036-4505; or
    (iii) By calling OSC at: (800) 872-9855 (toll-free), or (202) 804-
7000 (in the Washington, DC area).
    (5) A complainant can file a completed OSC complaint form:
    (i) Electronically at: https://osc.gov;
    (ii) By email to: [email protected]; or
    (iii) By mail to: Office of Special Counsel, 1730 M Street NW, 
Suite 218, Washington, DC 20036-4505.


Sec.  1800.3   Filing disclosures of information evidencing wrongdoing.

    (a) General. Pursuant to 5 U.S.C. 1213, OSC is authorized to 
provide an independent and secure channel for use by current or former 
Federal employees and applicants for Federal employment to disclose 
information that they reasonably believe evidences wrongdoing by a 
Federal agency. OSC must determine whether there is a substantial 
likelihood that the information discloses a violation of any law, rule, 
or regulation; gross mismanagement; a gross waste of funds; an abuse of 
authority; a substantial and specific danger to public health or 
safety; or censorship related to scientific research or the integrity 
of the scientific process if the censorship will cause one of the 
aforementioned categories of wrongdoing. If it does, the law requires 
OSC to refer the information to the appropriate agency head for an 
investigation and a written report on the findings to the Special 
Counsel. It is OSC's policy to maintain the anonymity of individual 
filers throughout the disclosure process, unless they consent to their 
identity being revealed. The law does not authorize OSC to investigate 
any disclosure.
    (b) Procedures for filing disclosures. Current or former Federal 
employees and applicants for Federal employment may file a disclosure 
of the type of information described in paragraph (a) of this section 
with OSC. Such disclosures must be filed in writing.
    (1) Filers are encouraged to use the OSC complaint form to file a 
disclosure of the type of information described in paragraph (a) of 
this section with OSC. This form provides more information about OSC 
jurisdiction, and procedures for processing whistleblower disclosures. 
The OSC complaint form is available:
    (i) Online at: https://osc.gov (to print out and complete on paper, 
or to complete online);
    (ii) By writing to OSC at: Office of Special Counsel, 1730 M Street 
NW, Suite 218, Washington, DC 20036-4505; or
    (iii) By calling OSC at: (800) 572-2249 (toll-free), or (202) 804-
7004 (in the Washington, DC area).
    (2) Filers may use another written format to submit a disclosure to 
OSC, but the submission should include:
    (i) The name, mailing address, and telephone number(s) of the 
individual(s) making the disclosure(s);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A statement as to whether the filer consents to disclosure of 
the filer's identity by OSC to the agency involved, in connection with 
any OSC referral to that agency.
    (3) An individual can file a disclosure with OSC:
    (i) Electronically at: https://osc.gov;
    (ii) By email at [email protected]; or
    (iii) By mail to: Office of Special Counsel, Disclosure Unit, 1730 
M Street NW, Suite 218, Washington, DC 20036-4505.


Sec.  1800.4   Filing complaints of Hatch Act violations and requesting 
advisory opinions.

    (a) Procedures for filing complaints alleging Hatch Act violations. 
(1) Complainants are encouraged to use the OSC complaint form to file 
Hatch Act complaints. The OSC complaint form is available:
    (i) Online at: https://osc.gov (to print out and complete on paper, 
or to complete online); or
    (ii) By writing to OSC at: Office of Special Counsel, 1730 M Street 
NW, Suite 218, Washington, DC 20036-4505.
    (2) Complaints alleging a violation of the Hatch Act may be 
submitted in any written form, and should include:
    (i) The complainant's name, mailing address, and telephone number 
(unless the matter is submitted anonymously);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A concise description of the actions complained about, names 
and positions of employees who took the actions, if known to the 
complainant, and dates of the actions, preferably in chronological 
order, together with any documentary evidence that the complainant can 
provide.
    (3) A written Hatch Act complaint can also be filed with OSC:
    (i) By email to: [email protected]; or
    (ii) By mail to: Office of Special Counsel, 1730 M Street NW, Suite 
218, Washington, DC 20036-4505.
    (b) Procedures for requesting Hatch Act advisory opinions. Pursuant 
to 5 U.S.C. 1212(f), OSC is authorized to issue advisory opinions only 
about political activity of Federal officers and employees, and 
political activity of State or local officers and employees. An 
individual can seek an advisory opinion from OSC:
    (1) By email to: [email protected];
    (2) By mail to: Office of Special Counsel, Hatch Act Unit, 1730 M 
Street

[[Page 5412]]

NW, Suite 218, Washington, DC 20036-4505; or
    (3) By phone at: (800) 854-2824 (toll-free), or (202) 804-7002 (in 
the Washington, DC area).
0
2. Revise part 1810 to read as follows:

PART 1810--INVESTIGATIVE AUTHORITY OF THE SPECIAL COUNSEL

Sec.
1810.1 Investigative policy in certain discrimination and 
retaliation complaints.
1810.2 Access to agency information in investigations.
1810.3 Termination of certain OSC investigations.
1810.4 Investigative policy regarding agency liaisons.

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


Sec.  1810.1   Investigative policy in certain discrimination and 
retaliation complaints.

    OSC is authorized to investigate allegations of discrimination and 
retaliation prohibited by law, as defined in 5 U.S.C. 2302(b)(1) and 
(b)(9)(A)(ii). Because procedures for investigating discrimination and 
retaliation complaints have already been established in the agencies 
and the Equal Employment Opportunity Commission, OSC will usually avoid 
duplicating those procedures and will defer to those procedures rather 
than initiating an independent investigation.


Sec.  1810.2   Access to agency information in investigations.

    (a) Pursuant to 5 U.S.C. 1212(b)(5), OSC is authorized to have 
timely access to all agency records, data, reports, audits, reviews, 
documents, papers, recommendations, information, or other material that 
relate to an OSC investigation, review, or inquiry.
    (b) A claim of common law privilege, such as the attorney-client 
privilege, may not be used by any agency, or officer or employee of any 
agency, to withhold information from OSC. By providing such information 
to OSC, an agency will not be deemed to have waived the common law 
privilege against a non-Federal entity or against any individual in any 
other proceeding.
    (c) In the event of contumacy or failure of an agency to comply 
with any request under this section, the Special Counsel shall submit a 
report to the committees of Congress with jurisdiction over OSC and the 
applicable agency.


Sec.  1810.3   Termination of certain OSC investigations.

    (a) Pursuant to 5 U.S.C. 1214(a)(6), within 30 days of receiving a 
complaint alleging that a prohibited personnel practice occurred, OSC 
may terminate an investigation of the allegation without further 
inquiry if:
    (1) The same allegation, based on the same set of facts and 
circumstances, had previously been:
    (i) Made by the individual and investigated by OSC; or
    (ii) Filed by the individual with the Merit Systems Protection 
Board;
    (2) OSC does not have jurisdiction to investigate the allegation; 
or
    (3) The individual knew or should have known of the alleged 
prohibited personnel practice more than 3 years before the allegation 
was received by OSC.
    (b) Within 30 days of terminating an investigation described in 
paragraph (a) of this section, OSC shall notify the individual, in 
writing, of the basis for terminating the investigation.


Sec.  1810.4   Investigative policy regarding agency liaisons.

    Agency liaisons facilitate their agency's cooperation with OSC's 
investigations by ensuring that agencies timely and accurately respond 
to OSC's requests for information and witness testimony, as well as by 
assisting with the resolution of complaints. To maintain the integrity 
of OSC's investigations and to avoid actual or perceived conflicts, 
agency liaisons should not have current or past involvement in the 
personnel actions at issue in the assigned case.
0
3. Revise part 1820 to read as follows:

PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF 
RECORDS OR TESTIMONY

Sec.
1820.1 General provisions.
Subpart A--FOIA Regulations
1820.2 Requirements for making FOIA requests.
1820.3 Consultations and referrals.
1820.4 Timing of responses to requests.
1820.5 Responses to requests.
1820.6 Appeals.
1820.7 Fees.
1820.8 Business information.
1820.9 Other rights and services.
Subpart B--Touhy Regulations
1820.10 Scope and purpose.
1820.11 Applicability.
1820.12 Definitions.
1820.13 General prohibition.
1820.14 Factors OSC will consider.
1820.15 Service of requests or demands.
1820.16 Requirements for litigants seeking documents or testimony.
1820.17 Processing requests or demands.
1820.18 Restrictions that apply to testimony.
1820.19 Restrictions that apply to released records.
1820.20 Procedure when a decision is not made prior to the time a 
response is required.
1820.21 Fees.
1820.22 Final determination.
1820.23 Penalties.
1820.24 Conformity with other laws.

    Authority:  5 U.S.C. 552, 301, and 1212(e).


Sec.  1820.1   General provisions.

    This part contains rules and procedures followed by the U.S. Office 
of Special Counsel (OSC) in processing requests for records under the 
Freedom of Information Act (FOIA), codified at 5 U.S.C. 552. These 
rules and procedures should be read together with the FOIA and the FOIA 
page of OSC's website (https://osc.gov/FOIA), 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: [email protected] or other electronic means 
described on the FOIA page of OSC's website (https://osc.gov/FOIA);
    (ii) Electronically to: The National FOIA Portal for the entire 
federal government at www.foia.gov; or
    (iii) By mail to: U.S. Office of Special Counsel, FOIA Officer, 
1730 M Street NW, Suite 218, Washington, DC 20036-4505.
    (2) Both the request letter and envelope or email subject line 
should be clearly marked ``FOIA Request.''
    (3) A FOIA request will not be considered to have been received by 
OSC until it reaches the FOIA Officer.
    (b) Description of records sought. Requests must state in the 
letter, email, or other prescribed electronic method the words ``FOIA 
Request'' or ``FOIA/Privacy Request.'' The request must also describe 
the records sought in enough detail for them to be located with a 
reasonable amount of effort. When requesting records about an OSC case 
file, the case file number, name, and

[[Page 5413]]

type (for example, prohibited personnel practice (PPP), Hatch Act, 
USERRA, Hatch Act advisory opinion, or whistleblower disclosure) should 
be provided, if known. Whenever possible, requests should describe any 
particular record sought, such as the date, title or name, author, 
recipient, and subject matter. OSC requires proof of identification 
from requestors seeking their own case files. OSC requires a signed 
release of information from requestors seeking another individual's 
case file.
    (c) Agreement to pay fees. By making a FOIA request the requestor 
agrees to pay all applicable fees chargeable under Sec.  1820.7 unless 
the Special Counsel waives fees, the requestor is exempt, or the 
requestor otherwise qualifies for a waiver of fees.


Sec.  1820.3   Consultations and referrals.

    When OSC receives a FOIA request for a record in its possession, it 
may determine that another Federal agency or entity is better able to 
decide whether the record is exempt from disclosure under the FOIA. If 
so, OSC will either respond to the request for the record after 
consulting with the other Federal agency or entity or refer the 
responsibility for responding to the request to the other Federal 
agency or entity deemed better able to determine whether to release it. 
OSC will ordinarily respond promptly to consultations and referrals 
from other Federal agencies or entities.


Sec.  1820.4   Timing of responses to requests.

    (a) In general. OSC ordinarily will respond to FOIA requests in 
order of receipt. In determining which records are responsive to a 
request, OSC ordinarily will include only records in its possession on 
the date that it begins its search. OSC will inform the requestor if it 
uses any other date.
    (b) Multitrack processing. (1) OSC may use two or more processing 
tracks to distinguish between simple and more complex requests based on 
the amount of work and/or time estimated to process the request.
    (2) When using multitrack processing, OSC may provide requestors in 
its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the faster track(s).
    (c) Expedited processing. (1) OSC will take requests and appeals 
out of order and provide expedited treatment whenever OSC has 
established to its satisfaction that:
    (i) Failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency exists to inform the public about an actual or 
alleged federal government activity and the requestor is primarily 
engaged in disseminating information; or
    (iii) The requestor with a personal interest in a case for which 
they face an imminent filing deadline with the Merit Systems Protection 
Board or other administrative tribunal or court of law in an individual 
right of action, or in a USERRA case referred to OSC under title 38 of 
the U.S. Code. Expedited status granted under this provision will apply 
only to the following requested records: PPP case closure and notice of 
appeal rights letters sent to the complainant by OSC, and the official 
complaint form submitted to OSC by a USERRA complainant or the original 
referred USERRA complaint if referred to OSC under title 38 of the U.S. 
Code.
    (2) A request for expedited processing must be made in writing and 
sent to OSC's FOIA Officer. The expedited request is deemed received 
when it reaches the FOIA Officer.
    (3) A requestor who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
individual's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. OSC may waive a certification as a 
matter of administrative discretion.
    (4) OSC shall decide whether to grant a request for expedited 
processing and notify the requestor of its decision within ten (10) 
calendar days of the FOIA Officer's receipt of the request. If OSC 
grants the request for expedited processing, it will process the 
request as soon as practicable. If OSC denies the request for expedited 
processing, OSC shall rule expeditiously on any administrative appeal 
of that decision.
    (d) Aggregated requests. OSC may aggregate multiple requests by the 
same requestor, or by a group of requestors acting in concert, if it 
reasonably believes that such requests actually constitute a single 
request that would otherwise create ``unusual circumstances'' as 
defined in Sec.  1820.5, and that the requests involve clearly related 
matters.


Sec.  1820.5   Responses to requests.

    (a) General. Ordinarily, OSC has twenty (20) business days from 
receipt to determine whether to grant or deny a FOIA request.
    (1) In unusual circumstances, OSC may extend the twenty (20) 
business-day deadline by written notice to the requestor setting forth 
the unusual circumstances justifying the extension. OSC shall notify 
the requestor if OSC cannot process the request in 20 days and provide 
the requestor an opportunity to modify the request so that OSC can 
process the request within the 20-day time limit. OSC and the requestor 
can also negotiate an alternative time frame for processing the request 
or modified request. OSC's FOIA Public Liaison is available to assist 
in the resolution of any disputes between the requestor and OSC. OSC 
must also advise the requestor of the requestor's right to seek dispute 
resolution services from the National Archives and Records 
Administration's (NARA) Office of Government Information Services 
(OGIS). OSC may consider a requestor's refusal to reasonably modify the 
request or to negotiate an alternative time frame as a factor in 
determining whether unusual and/or exceptional circumstances exist.
    (2) Unusual circumstances means--
    (i) The need to search for and collect the requested records from 
OSC field offices, NARA storage facilities, or other locations away 
from OSC's FOIA office;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (iii) The need for consultation and/or referral with another OSC 
unit where the information also concerns two or more components of OSC 
or with a Federal entity that has an interest in the information 
requested.
    (3) Exceptional circumstances means--
    (i) OSC has a backlog of pending requests and is making reasonable 
progress in reducing the backlog; and
    (ii) OSC estimates a search yield of more than 5,000 pages.
    (b) Denial of request. OSC will notify the requestor in writing of 
its determination to grant or deny in full or in part a FOIA request.
    (c) Adverse determinations. Adverse determinations, or denials of 
requests, consist of: A determination to withhold any requested record 
in whole or in part; that a requested record does not exist or cannot 
be located; that a record is not readily reproducible in the form or 
format sought by the requestor; that the request does not seek a record 
subject to the FOIA; a determination on any disputed fee matter; or a 
denial of a request for expedited treatment. A notification to a 
requestor of an adverse determination on a request shall include:
    (1) A brief statement of the reason(s) for the denial of the 
request, including any FOIA exemption applied by OSC in denying the 
request; and

[[Page 5414]]

    (2) A statement that the denial may be appealed under Sec.  
1820.6(a), with a description of the requirements of that subsection.
    (d) Dispute resolution program. OSC shall inform FOIA requestors at 
all stages of the FOIA process of the availability of dispute 
resolution services provided by the FOIA Public Liaison or by NARA's 
OGIS.


Sec.  1820.6   Appeals.

    (a) Appeals of adverse determinations. A requestor may appeal an 
adverse determination to OSC's Office of General Counsel. The appeal 
must be in writing, and must be submitted either:
    (1) By email to: [email protected], or other electronic means as 
described on the FOIA page of OSC's website (https://osc.gov/FOIA); or
    (2) By mail to: U.S. Office of Special Counsel, Office of General 
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
    (b) Submission and content. The Office of General Counsel must 
receive the appeal within ninety (90) calendar days of the date of the 
adverse determination letter. The appeal letter and envelope or email 
subject line should be clearly marked ``FOIA Appeal.'' The appeal must 
clearly identify the OSC determination (including the assigned FOIA 
request number, if known) being appealed. OSC will not ordinarily act 
on a FOIA appeal if the request becomes a matter of FOIA litigation.
    (c) Responses to appeals. Ordinarily, OSC must issue a written 
appeal decision within twenty (20) business days from receipt of the 
appeal. A decision affirming a denial in whole or in part shall inform 
the requestor of the provisions for judicial review of that decision, 
and of the availability of dispute resolution services. If OSC's appeal 
decision reverses or modifies its denial, OSC's notice will state that 
OSC will reprocess the request in accordance with that appeal decision.


Sec.  1820.7  Fees.

    (a) In general. OSC provides the first two hours of search time and 
the first 100 pages of duplication free of charge to all requestors. In 
exceptional circumstances, OSC may charge fees after determining that 
unusual circumstances exist. At the discretion of the Special Counsel, 
OSC may exempt certain requestors from search and duplication fees, 
including PPP complainants and subjects; Hatch Act complainants and 
subjects; Hatch Act advisory opinion requestors; whistleblowers; and 
USERRA complainants. OSC charges commercial users for search, review, 
and duplication fees under the FOIA in accordance with paragraph (c) of 
this section, except where a waiver or reduction of fees is granted 
under paragraph (h) of this section. OSC charges duplication fees, but 
not search fees, to educational or non-commercial scientific 
institutions; and to representative of the news media or news media 
requestors. OSC charges both search fees and duplication fees to all 
other requestors. If an exempted requestor abuses its exempt fee status 
to file numerous, duplicative, and/or voluminous FOIA requests, OSC may 
suspend the requestor's exempt status and charge search and duplication 
fees. OSC may require up-front payment of fees before sending copies of 
requested records to a requestor. Requestors must pay fees by 
submitting to OSC's FOIA Officer a check or money order made payable to 
the Treasury of the United States. See generally Uniform Freedom of 
Information Act Fee Schedule and Guidelines (hereinafter OMB Fee 
Guidelines), 52 FR 10012 (Mar. 27, 1987).
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of an 
individual who seeks information for a use or purpose that furthers 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. If OSC determines that the 
requestor seeks to put the records to a commercial use, either because 
of the nature of the request or because OSC has reasonable cause to 
doubt a requestor's stated use, OSC shall provide the requestor with a 
reasonable opportunity to clarify.
    (2) Direct costs mean those expenses that OSC incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records to respond to a FOIA request. Direct costs include, 
for example, the salary of the employee performing the work (the basic 
rate of pay for the employee plus 16 percent of that rate to cover 
benefits) and the cost of operating duplicating equipment. Direct costs 
do not include overhead expenses such as rent, heating, or lighting the 
record storage facility.
    (3) Duplication means the reasonable direct cost of making copies 
of documents.
    (4) Educational institution means any school that operates a 
program of scholarly research. See OMB Fee Guidelines, 52 FR 10019. To 
be in this category, a requestor must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scholarly research.
    (5) Non-commercial scientific institution means an entity that is 
operated solely for the purpose of conducting scientific research the 
results of which are not intended to promote any particular product or 
industry and are not for commercial use.
    (6) Representative of the news media or news media requestor means 
any individual or entity that gathers information of potential interest 
to a segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. A non-exhaustive list of news media entities includes print 
newspapers, electronic outlets for print newspapers, broadcast and 
cable television networks and stations, broadcast and satellite radio 
networks and stations, internet-only outlets, and other alternative 
media as methods of news delivery evolve. For ``freelance'' journalists 
to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization, whether print or electronic. A requestor seeking to 
qualify as a news media requestor must not be seeking the requested 
records for a commercial use. The requestor's news-dissemination 
function is not considered to be a commercial use.
    (7) Review means the process of examining a record located in 
response to a request in order to determine whether any portion of the 
record is exempt from release. Review includes redacting exempt 
material, and otherwise evaluating and preparing the records for 
release. Review includes time spent obtaining and considering any 
formal objection to release made by a business submitter under Sec.  
1820.8(f). Review does not include time spent resolving general legal 
or policy issues about the application of exemptions. OSC may charge 
for review costs in connection with commercial use requests even if a 
record ultimately is not released.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a FOIA request, as well as page-by-page or 
line-by-line identification of responsive information within records.
    (c) Fees. OSC charges the following fees for responding to FOIA 
requests:
    (1) Search. (i) The first two hours of search are free. OSC may 
charge for time spent searching even if it fails to locate responsive 
records, or even if OSC

[[Page 5415]]

determines that located records are exempt from release.
    (ii) OSC charges $5.50 per quarter hour spent by clerical personnel 
in searching for and retrieving a requested record; $9.00 per quarter 
hour of search time spent by professional personnel; and $17.50 per 
quarter hour for search assistance from managerial personnel.
    (iii) OSC charges the direct costs of conducting electronic 
searches, including the costs of operator or programmer staff time 
apportionable to the search.
    (iv) OSC may charge additional costs in accordance with the 
applicable billing schedule established by NARA for requests requiring 
the retrieval of records from any Federal Records Center.
    (2) Duplication. OSC charges all non-exempt requestors duplication 
fees after the first 100 pages. OSC's duplication fee for a standard 
paper photocopy of a record will be 25 cents per page. For copies 
produced by computer, such as discs or printouts, OSC will charge the 
direct costs, including staff time, of producing the copy. For other 
forms of duplication, OSC will charge the direct costs of that 
duplication.
    (3) Review. OSC charges review fees to commercial use requestors. 
OSC will not charge for review at the administrative appeal level.
    (d) Notice of anticipated fees in excess of $25.00. OSC shall 
notify the requestor of the actual or estimated fees when OSC 
determines or estimates that fees charged under this section would 
exceed $25.00, unless the requestor has indicated a willingness to pay 
fees at that level. The fee notice will offer the requestor an 
opportunity to work with OSC to reformulate or narrow the request to 
try to lower the anticipated fees. OSC will not conduct a search or 
process responsive records until the requestor agrees to pay the 
anticipated total fee in excess of $25.00.
    (e) Charges for other services. OSC will ordinarily charge an 
additional fee when OSC chooses as a matter of administrative 
discretion to provide a special service, such as shipping records by 
other than ordinary mail.
    (f) Aggregating separate requests. OSC may aggregate requests and 
charge appropriate fees where OSC reasonably believes that a requestor 
or a group of requestors seek to avoid fees by dividing a request into 
a series of requests. OSC may presume that multiple such requests made 
within a 30-day period were divided in order to avoid fees. OSC will 
aggregate requests separated by more than 30 days only where a 
reasonable basis exists for determining that aggregation is warranted 
under the circumstances involved.
    (g) Advance payments. (1) For requests other than those described 
in paragraphs (g)(2) and (3) of this section, OSC will not require the 
requestor to make an advance payment before work is begun or continued 
on a request. Payment owed for work already completed (that is, pre-
payment after processing a request but before copies are sent to the 
requestor) is not an advance payment.
    (2) OSC may require advance payment up to the amount of the entire 
anticipated fee before beginning to process the request if OSC 
determines or estimates that a total fee to be charged under this 
section will exceed $250.00.
    (3) OSC may require the requestor to make an advance payment in 
full of the anticipated fee where a requestor has previously failed to 
pay a properly charged FOIA fee within 30 business days of the date of 
billing.
    (h) Requirements for waiver or reduction of fees. (1) OSC will 
furnish records responsive to a request without charge or at a charge 
reduced below that established under paragraph (c) of this section 
where OSC determines, based on all available information, that the 
requestor has demonstrated that:
    (i) Release of the requested records is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (ii) Release of the records is not primarily in the commercial 
interest of the requestor.
    (2) To determine whether the first fee waiver requirement is met, 
OSC will consider the following factors:
    (i) Whether the subject of the requested records concerns a direct 
and clear connection to ``the operations or activities of the 
government,'' not remote or attenuated.
    (ii) Whether the release is ``likely to contribute''' to an 
understanding of government operations or activities. The releasable 
portions of the requested records must be meaningfully informative 
about government operations or activities in order to be ``likely to 
contribute'' to an increased public understanding of those operations 
or activities. The release of records already in the public domain is 
unlikely to contribute to such understanding.
    (iii) Whether release of the requested records will contribute to 
``public understanding.'' The release must contribute to the 
understanding of a reasonably broad audience of individuals interested 
in the subject. OSC shall consider a requestor's expertise in the 
subject area and ability and intention to effectively convey 
information to the public. A representative of the news media 
presumptively satisfies this consideration.
    (iv) Whether the release is likely to contribute ``significantly'' 
to public understanding of government operations or activities. The 
requestor must demonstrate that the release would significantly enhance 
the public's understanding of the subject in question.
    (3) To determine whether the second fee waiver requirement is met, 
OSC will consider the following factors:
    (i) Whether the requestor has a commercial interest that would be 
furthered by the requested release. OSC shall consider any commercial 
interest of the requestor (with reference to the definition of 
``commercial use'' in paragraph (b)(1) of this section), or of any 
individual on whose behalf the requestor may be acting, that would be 
furthered by the requested release. Requestors shall be given an 
opportunity to provide explanatory information about this 
consideration.
    (ii) Whether any identified public interest is greater in magnitude 
than that of any identified commercial interest in release. OSC 
ordinarily shall presume that a news media requestor has satisfied the 
public interest standard. Release to data brokers or others who merely 
compile and market government information for direct economic return 
shall be presumed not to primarily serve the public interest.
    (4) Where only a portion of the records to be released satisfies 
the requirements for a waiver of fees, a waiver shall be granted for 
that portion.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (h)(1), (2), and (3) of this section, 
insofar as they apply to each request. OSC fee reduction or waiver 
decisions may consider the cost-effectiveness of its allocation of 
administrative resources.
    (i) No assessment of fees. OSC may not assess any search fees if it 
misses the statutory 20 business-day deadline to respond to the 
request, except under paragraphs (i)(1) and (2) of this section.
    (1) If OSC determined that unusual circumstances apply and OSC 
provided a timely written notice to the requestor, OSC may extend the 
20-day deadline by 10 business days. OSC may not assess any search 
fees, however, if it misses the extended deadline.
    (2) OSC may charge search fees if the search yield would exceed 
5,000 pages, and if OSC provides a timely written notice to the 
requestor.

[[Page 5416]]

Sec.  1820.8  Business information.

    (a) In general. Business information obtained by OSC from a 
submitter may be released only pursuant to this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means trade secrets and commercial or 
financial information obtained by OSC from a submitter that may be 
protected from release under FOIA Exemption 4. 5 U.S.C. 552(b)(4).
    (2) Submitter means any individual or entity from whom OSC obtains 
business information, directly or indirectly.
    (c) Designation of business information. A submitter of business 
information must use good-faith efforts to designate, by appropriate 
markings, any portion of its submission that it considers to be 
protected from release under exemption 4.
    (d) Notice to submitters. OSC shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that appears 
to seek confidential business information wherever required under 
paragraph (e) of this section, except as provided in paragraph (h) of 
this section, in order to give the submitter an opportunity to object 
to release of any specified portion of those records under paragraph 
(f) of this section. The notice shall either describe the confidential 
business information requested or include copies of the requested 
records or record portions containing the information.
    (e) When notice is required. Notice shall be given to a submitter 
whenever:
    (1) The submitter designated the records in good faith as 
considered protected from release under exemption 4; or
    (2) OSC has reason to believe that the records or portions of 
records may be protected from release under exemption 4.
    (f) Opportunity to object to release. OSC will allow a submitter a 
reasonable time to respond to the notice described in paragraph (d) of 
this section and will specify that time period within the notice. The 
submitter must submit any objections to release in a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the records under any exemption of the FOIA and, in the case 
of exemption 4, it must show why the information contained in the 
record is privileged or confidential. Submitters who fail to respond 
timely to the notice are deemed to have consented to release of the 
records. Information provided by a submitter under this paragraph may 
itself be subject to release under FOIA.
    (1) Notice of intent to release. OSC shall consider a submitter's 
objections and specific grounds for non-release in deciding whether to 
release business information. If OSC decides to release business 
information over the objection of a submitter, OSC shall provide 
written notice including the reason(s) why OSC overruled the 
submitter's objections; a description of the business information to be 
released; and a reasonable specified release date.
    (2) [Reserved]
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (e) of this section shall not apply if:
    (1) OSC determines that the information should not be released;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Release of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
OSC shall, within a reasonable time prior to a specified release date, 
give the submitter written notice of any final decision to release the 
information.
    (h) Notice of FOIA lawsuit. OSC shall promptly notify a submitter 
if a requestor files a lawsuit seeking to compel the release of the 
submitter's business information.
    (i) Corresponding notice to requestors. OSC shall notify 
requestor(s): That it provided business submitters the opportunity to 
object to release under paragraph (d) of this section; if OSC 
subsequently releases the requested records under paragraph (g) of this 
section; and whenever a submitter files a lawsuit seeking to prevent 
OSC's release of business information.


Sec.  1820.9   Other rights and services.

    This subpart does not create a right or entitlement for any 
individual to any service or to the release of any record other than 
those available under FOIA.

Subpart B--Touhy Regulations


Sec.  1820.10   Scope and purpose.

    (a) This subpart establishes policy, assigns responsibilities, and 
prescribes procedures with respect to the production of official 
information, records, or testimony by current and former OSC employees, 
contractors, advisors, and consultants in connection with Federal or 
State litigation or administrative proceedings in which OSC is not a 
party.
    (b) OSC intends this part to:
    (1) Conserve OSC employee time for conducting official business;
    (2) Minimize OSC employee involvement in issues unrelated to OSC's 
mission;
    (3) Maintain OSC employee impartiality in disputes between non-OSC 
litigants; and
    (4) Protect OSC's sensitive, confidential information and 
deliberative processes.
    (c) OSC does not waive the sovereign immunity of the United States 
when allowing OSC employees to provide testimony or records under this 
part.


Sec.  1820.11  Applicability.

    This subpart applies to demands and requests from non-OSC litigants 
for testimony from current and former OSC employees, contractors, 
advisors, and consultants relating to official OSC information and/or 
for production of official OSC records or information in legal 
proceedings in which OSC is not a party.


Sec.  1820.12   Definitions.

    The following definitions apply to this part.
    (a) Demand means an order, subpoena, or other command of a court or 
other competent authority for OSC's production or release of records or 
for an OSC employee's appearance and testimony in a legal proceeding.
    (b) Request means any request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court or other competent authority.
    (c) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, and 
interviews made by an individual in connection with a legal proceeding.
    (d) Records or official records and information means all 
information in OSC's custody and control, relating to information in 
OSC's custody and control, or acquired by an OSC employee in the 
performance of official duties.
    (e) Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, or other body that conducts a legal or administrative 
proceeding.
    (f) General Counsel means OSC's General Counsel or an individual to 
whom the General Counsel has delegated authority under this part.
    (g) OSC employee or employee means any current or former OSC 
employee or contractor, including but not limited to OSC: Temporary 
employees, interns,

[[Page 5417]]

volunteers, consultants, and/or other advisors.


Sec.  1820.13   General prohibition.

    No OSC employee may testify or produce official records or 
information in response to a demand or request without the General 
Counsel's prior written approval.


Sec.  1820.14   Factors OSC will consider.

    The General Counsel has discretion to grant an employee permission 
to testify on matters relating to official information or produce 
official records and information, in response to a demand or request. 
The General Counsel may consider whether:
    (a) The purposes of this subpart are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice; would assist or hinder 
OSC in performing its statutory duties; or would be in the best 
interest of OSC or the United States;
    (c) The records or testimony can be obtained from other sources;
    (d) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (e) Release would violate a statute, Executive Order, or 
regulation; would reveal trade secrets, confidential, sensitive, or 
privileged information, or information that would otherwise be 
inappropriate for release; or would impede or interfere with an ongoing 
law enforcement investigation or proceeding, or compromise 
constitutional rights or national security interests;
    (f) Allowing such testimony or production of records would result 
in OSC appearing to favor one litigant over another;
    (g) A substantial government interest is implicated;
    (h) The demand or request is within the authority of the party 
making it; and/or
    (i) The demand or request is sufficiently specific to be answered.


Sec.  1820.15   Service of requests or demands.

    Requests or demands for official records or information or 
testimony under this subpart must be served by mail to the U.S. Office 
of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 
218, Washington, DC 20036-4505; or by email to [email protected]. The subject 
line should read ``Touhy Request.''


Sec.  1820.16   Requirements for litigants seeking documents or 
testimony.

    A litigant must comply with the following requirements when 
submitting a request for testimony or official records and information 
under this subpart. A request should be submitted before a demand is 
issued.
    (a) The request must be in writing (email suffices) and must be 
submitted to the General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal or administrative proceeding, docket 
number, and name and address of the court or other administrative or 
regulatory authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal or 
administrative proceeding, and a specific description of the substance 
of the testimony or records sought;
    (4) A statement addressing the factors set out in Sec.  1820.14;
    (5) A statement indicating that the information sought is not 
available from another source;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requestor and other 
parties will require of each OSC employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) OSC reserves the right to require additional information to 
complete the request where appropriate.
    (d) The request should be submitted at least 14 days before the 
date that records or testimony is required.
    (e) The General Counsel may deny a request for records or testimony 
based on a requestor's failure to cooperate in good faith to enable the 
General Counsel to make an informed decision.
    (f) The request should state that the requestor will provide a copy 
of the OSC employee's testimony free of charge and that the requestor 
will permit OSC to have a representative present during the employee's 
testimony.


Sec.  1820.17   Processing requests or demands.

    (a) Absent exigent circumstances, OSC will issue a determination 
within 10 business days after the General Counsel received the request 
or demand.
    (b) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of OSC or the United States, or for 
other good cause.
    (c) On request, OSC may certify that records are true copies in 
order to facilitate their use as evidence.


Sec.  1820.18   Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
OSC employee testimony including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requestor and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only in the particular legal proceeding for which testimony was 
requested.
    (b) OSC may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify under this part, employees may testify 
as to facts within their personal knowledge, but, unless specifically 
authorized to do so by the General Counsel, the employee shall not;
    (1) Reveal confidential or privileged information; or
    (2) For a current OSC employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or the functions of OSC unless testimony is being given 
on behalf of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to OSC's approval.


Sec.  1820.19   Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official OSC records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure.
    (b) If the General Counsel so determines, original OSC records may 
be presented for examination in response to a request, but they may not

[[Page 5418]]

be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official OSC records, nor may they be 
marked or altered.


Sec.  1820.20   Procedure in the event a decision is not made prior to 
the time a response is required.

    If a requestor needs a response to a demand or request before the 
General Counsel makes a determination whether to grant the demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the General Counsel, will appear, if necessary, at 
the stated time and place, produce a copy of this part, state that the 
employee has been advised by counsel not to provide the requested 
testimony or produce documents at this time, and respectfully decline 
to comply with the demand or request, citing United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).


Sec.  1820.21   Fees.

    (a) Witness fees. OSC may assess fees for attendance by a witness. 
Such fees will include fees, expenses, and allowances prescribed by the 
court's rules. If no such fees are prescribed, witness fees will be 
determined based on 28 U.S.C. 1821, and upon the rule of the federal 
district closest to the location where the witness will appear. Such 
fees will include the costs of time spent by the witness to prepare for 
testimony, in travel, and for attendance in the legal proceeding, plus 
travel costs.
    (b) Payment of fees. A requestor must pay witness fees for current 
OSC employees and any record certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the United States Department of Treasury.


Sec.  1820.22   Final determination.

    The General Counsel will notify the requestor and, when 
appropriate, the court or other body of the final determination, the 
reasons for the response to the request or demand, and any conditions 
that the General Counsel may impose on the testimony of an OSC employee 
or the release of OSC records or information. The General Counsel has 
the sole discretion to make the final determination regarding requests 
to employees for testimony or production of official records and 
information in litigation in which OSC is not a party. The General 
Counsel's decision exhausts administrative remedies for purposes of 
release of the information.


Sec.  1820.23   Penalties.

    (a) An employee who releases official records or information or 
gives testimony relating to official information, except as expressly 
authorized by OSC, or as ordered by a court after OSC has had the 
opportunity to be heard, may face the penalties provided in 18 U.S.C. 
641 and other applicable laws. Additionally, former OSC employees are 
subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
    (b) A current OSC employee who testifies or produces official 
records and information in violation of this subpart may be subject to 
disciplinary action.


Sec.  1820.24   Conformity with other laws; other rights.

    This regulation is not intended to conflict with 5 U.S.C. 
2302(b)(13). This subpart does not create any right, entitlement, or 
benefit, substantive or procedural, that a party may rely upon in any 
legal proceeding against the United States.
0
4. Revise part 1830 to read as follows:

PART 1830--PRIVACY ACT REGULATIONS

Sec.
1830.1 Scope and purpose.
1830.2 Definitions.
1830.3 Requirements for making Privacy Act requests.
1830.4 Medical records.
1830.5 Requirements for requesting amendment of records.
1830.6 Appeals.
1830.7 Exemptions.
1830.8 Fees.
1830.9 Accounting for disclosures.
1830.10 Conditions of disclosure.

    Authority:  5 U.S.C. 552a(f),1212(e).


Sec.  1830.1   Scope and purpose.

    (a) This part contains rules and procedures followed by OSC in 
processing requests for records under the Privacy Act. Further 
information about access to OSC records generally is available on OSC's 
website at https://osc.gov/Privacy.
    (b) This part implements the Privacy Act of 1974, codified at 5 
U.S.C. 552a, by establishing OSC policies and procedures for the 
release and maintenance of certain systems of records. See 5 U.S.C. 
552a(f). This part also establishes policies and procedures for an 
individual to correct or amend their record if they believe it is not 
accurate, timely, complete, or relevant or necessary to accomplish an 
OSC function.
    (c) OSC personnel protected by the Privacy Act include all staff, 
experts, contractors, consultants, volunteers, interns, and temporary 
employees.
    (d) Other individuals engaging with OSC protected by the Privacy 
Act include, but are not limited to, PPP complainants, Hatch Act 
complainants, subjects of Hatch Act complaints, Hatch Act advisory 
opinion requesters, whistleblowers filing disclosures under 5 U.S.C. 
1213, and USERRA complainants
    (e) This part does not:
    (1) Apply to OSC record systems that are not Privacy Act Record 
Systems.
    (2) Make any records available to individuals other than:
    (i) Individuals who are the subjects of the records;
    (ii) individuals who can prove they have consent of subject 
individual; or
    (iii) individuals acting as legal representatives on behalf of such 
subject individuals.
    (3) Make available information compiled by OSC in reasonable 
anticipation of court litigation or formal administrative proceedings. 
The availability of such information, including to any subject 
individual or party to such litigation or proceeding, shall be governed 
by applicable constitutional principles, rules of discovery, 
privileges, and part 1820 of this chapter; or
    (4) Apply to personnel records maintained by the Human Capital 
Office of OSC. Those records are subject to regulations of the Office 
of Personnel Management in 5 CFR parts 293, 294, and 297.


Sec.  1830.2   Definitions.

    As used in this part:
    (a) Access means availability of a record to a subject individual.
    (b) Disclosure means the availability or release of a record.
    (c) Maintain means to maintain, collect, use, or disseminate when 
used in connection with the term ``record;'' and to have control over 
or responsibility for a system of records when used in connection with 
the term ``system of records.''
    (d) Notification means communication to an individual whether or 
not they are a subject individual.
    (e) Record means any item, collection, or grouping of information 
about an individual that is maintained by OSC, including but not 
limited to the individual's education, financial transactions, medical 
history, criminal, or employment history, that contains a name or an 
identifying number, symbol, or other identifying particular assigned to 
the individual. When used in this part, record means only a record that 
is in a system of records.

[[Page 5419]]

    (f) Release means making available all or part of the information 
or records contained in an OSC system of records.
    (g) Responsible OSC official means the officer listed in a notice 
of a system of records as the system manager or another individual 
listed in the notice of a system of records to whom requests may be 
made, or the designee of either such officer or individual.
    (h) Subject individual means that individual to whom a record 
pertains.
    (i) System of records means any group of records under the control 
of OSC from which a record is retrieved by personal identifier such as 
the name of the individual, number, symbol or other unique retriever 
assigned to the individual. Single records or groups of records which 
are not retrieved by a personal identifier are not part of a system of 
records. See 5 U.S.C. 552a(a)(5).


Sec.  1830.3   Requirements for making Privacy Act requests.

    (a) Submission of requests. A request for OSC records under the 
Privacy Act must be made in writing. The request must be sent:
    (1) By email to: [email protected]; or
    (2) By mail to: U.S. Office of Special Counsel, Chief Privacy 
Officer, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
    (3) Both the request letter and envelope or email should clearly be 
marked ``Privacy Act Request.'' A Privacy Act request is deemed 
received by OSC when it reaches the Chief Privacy Officer.
    (b) Description of records sought. Requestors must describe the 
records sought in enough detail for OSC to locate them with a 
reasonable amount of effort, including, where known, data such as the 
date, title or name, author, recipient, and subject matter of the 
requested record.
    (c) Proof of identity. OSC requires proof of identity from 
requestors seeking their own files, preferably a government-issued 
document bearing the subject individual's photograph. OSC requires a 
signed consent from the subject individual to release records to an 
individual's representative.
    (d) Freedom of Information Act processing. OSC also processes all 
Privacy Act requests for access to records under the Freedom of 
Information Act, 5 U.S.C. 552, by following the rules contained in part 
1820 of this chapter.


Sec.  1830.4   Medical records.

    When a request for access involves medical records that are not 
otherwise exempt from disclosure, OSC may advise the requesting 
individual that OSC will only provide the records to a physician the 
individual designates in writing. Upon receipt of the designation, the 
physician will be permitted to review the records or to receive copies 
by mail upon proper verification of identity.


Sec.  1830.5   Requirements for requesting amendment of records.

    (a) Submission of requests. Individuals may request amendment of 
records pertaining to them that are subject to amendment under the 
Privacy Act and this part. The request must be sent:
    (1) By email to: [email protected]; or
    (2) By mail to: Chief Privacy Officer, U.S. Office of Special 
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
    (3) Both the request letter and envelope or email should be clearly 
marked ``Privacy Act Amendment Request.'' Whether sent by mail or 
email, a Privacy Act amendment request is considered received by OSC 
when it reaches the Chief Privacy Officer.
    (b) Description of amendment sought. Requests for amendment should 
include the identification of the records together with a statement of 
the basis for the requested amendment and all available supporting 
documents and materials. The request needs to articulate whether 
information should be added, deleted, or substituted with another 
record and clearly articulate the reason for believing that the record 
should be corrected or amended.
    (c) Proof of identity. Rules and procedures set forth in Sec.  
1830.3 apply to requests made under this section.
    (d) Acknowledgement and response. Requests for amendment shall be 
acknowledged by OSC no later than ten (10) business days after receipt 
by the Chief Privacy Officer and a determination on the request shall 
be made promptly.
    (e) What will not change. The Privacy Act amendment or correction 
process will not be used to alter, delete, or amend information which 
is part of a determination of fact or which is evidence received in the 
record of a claim in any form of an administrative appeal process. 
Disagreements with these determinations are to be resolved through the 
assigned OSC Program Office.
    (f) Notice of error. If the record is wrong, OSC will correct it 
promptly. If wrong information was disclosed from the record, we will 
tell those of whom we are aware received that information that it was 
wrong and will give them the correct information. This will not be 
necessary if the change is not due to an error--e.g., a change of name 
or address.
    (g) Record found to be correct. If the record is correct, OSC will 
inform you in writing of the reason why we refuse to amend your record 
and we will also inform you of your right to appeal the refusal and the 
name and address of the official to whom you should send your appeal.
    (h) Record of another government agency. If you request OSC to 
correct or amend a record governed by the regulation of another 
government agency, we will forward your request to such government 
agency for processing and we will inform you in writing of the 
referral.


Sec.  1830.6   Appeals.

    (a) Appeals of adverse determinations. A requestor may appeal a 
denial of a Privacy Act request for access to or amendment of records 
to OSC's Office of General Counsel. The appeal must be in writing, and 
be sent:
    (1) By email to: [email protected]; or
    (2) By mail to: U.S. Office of Special Counsel, Office of General 
Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036-4505.
    (3) The appeal must be received by the Office of General Counsel 
within 45 calendar days of the date of the letter denying the request. 
Both the appeal letter and envelope or email should be clearly marked 
``Privacy Act Appeal.'' An appeal is considered received by OSC when it 
reaches the Office of General Counsel. The appeal letter may include as 
much or as little related information as the requestor wishes, as long 
as it clearly identifies OSC's determination (including the assigned 
request number, if known) being appealed. An appeal ordinarily will not 
be acted on if the request becomes a matter of litigation.
    (b) Responses to appeals. OSC's decision on an appeal will be made 
in writing. A final determination will be issued within 20 business 
days--unless OSC shows good cause to extend the 20-day period.


Sec.  1830.7   Exemptions.

    OSC exempts investigatory material from records subject to Privacy 
Act record requests or amendment of records requests. This exemption 
aims to prevent interference with OSC's inquiries into matters under 
its jurisdiction, and to protect identities of confidential sources of 
information. OSC also reserves the right to assert exemptions for 
records received from another agency that could be properly claimed by 
that agency. OSC may

[[Page 5420]]

exempt any information compiled in reasonable anticipation of a legal 
action or proceeding.


Sec.  1830.8   Fees.

    Requests for records under this section shall be subject to the 
fees set forth in part 1820 of this chapter.


Sec.  1830.9   Accounting for disclosures.

    OSC will maintain an accounting of all releases of a record for six 
(6) years or for the life of the record in accordance with the General 
Records Schedule, whichever is longer--except that, we will not make 
accounting for:
    (a) Releases of your record made with your consent;
    (b) To those officers and employees of the Office of Special 
Counsel who have a need for the record to perform their duties; and
    (c) To those required to be released under the Freedom of 
Information Act, 5 U.S.C. 552, and part 1820 of this chapter.


Sec.  1830.10   Conditions of disclosure.

    OSC shall not release any record that is contained in a system of 
records to any individual or to another agency, except as follows:
    (a) Consent to release by the subject individual. Except as 
provided in paragraphs (b) and (c) of this section authorizing releases 
of records without consent, no release of a record will be made without 
the consent of the subject individual. The consent shall be in writing 
and signed by the subject individual. The consent shall specify the 
individual, agency, or other entity to whom the record may be released, 
which record may be released and, where applicable, during which time 
frame the record may be released. The subject individual's identity 
and, where applicable, the identity of the individual to whom the 
record is to be released shall be verified as set forth in Sec.  
1830.3(c).
    (b) Releases without the consent of the subject individual. The 
releases listed in this paragraph may be made without the consent of 
the subject individual, including:
    (1) To those officers and employees of the Office of Special 
Counsel who have a need for the record to perform their duties.
    (2) To those required to be released under the Freedom of 
Information Act, 5 U.S.C. 552, and part 1820 of this title.
    (3) To the entities listed in in the Privacy Act at 5 U.S.C. 
552a(b)(1) through (12).
0
5. Revise part 1850 to read as follows:

PART 1850--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF 
SPECIAL COUNSEL

Sec.
1850.101 Purpose.
1850.102 Application.
1850.103 Definitions.
1850.104-1850.109 [Reserved]
1850.110 Notice.
1850.111-1850.119 [Reserved]
1850.120 General prohibitions against discrimination against 
individuals with disabilities.
1850.121-1850.129 [Reserved]
1850.130 Employment of qualified individuals with disabilities.
1850.131-1850.139 [Reserved]
1850.140 Program accessibility: Discrimination against qualified 
individuals with disabilities prohibited.
1850.141-1850.149 [Reserved]
1850.150 Program accessibility: Existing facilities.
1850.151 Program accessibility: New construction and alterations.
1850.152-1850.159 [Reserved]
1850.160 Communications.
1850.161-1850.169 [Reserved]
1850.170 Compliance procedures.
1850.171-1850.999 [Reserved]

    Authority:  29 U.S.C. 794.


Sec.  1850.101   Purpose.

    The purpose of this part is to implement section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.


Sec.  1850.102   Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with disabilities in the United 
States.


Sec.  1850.103   Definitions.

    (a) Auxiliary aids means services or devices that enable 
individuals with impaired sensory, manual, or speaking skills to have 
an equal opportunity to participate in, and enjoy the benefits of, 
programs or activities conducted by the agency. For example, auxiliary 
aids useful for individuals with impaired vision include readers, 
Braille materials, audio recordings, and other similar services and 
devices. Auxiliary aids useful for individuals with impaired hearing 
include telephone handset amplifiers, telephones compatible with 
hearing aids, telecommunication devices for deaf individuals (TDDs), 
interpreters, notetakers, written materials, and other similar services 
and devices.
    (b) Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on the 
complainant's behalf. Complaints filed on behalf of classes or third 
parties shall describe or identify (by name, if possible) the alleged 
victims of discrimination.
    (c) Days means calendar days, unless otherwise stated.
    (d) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (e) Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    (f) Individual with a disability means any individual who has a 
physical or mental impairment that substantially limits one or more 
major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. The following phrases used in 
this definition are further defined as follows:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (iii) Also, physical and mental impairment includes, but is not 
limited to, such diseases and conditions as orthopedic, visual, speech, 
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental 
retardation, emotional illness, and drug addiction and alcoholism.
    (2) Major life activities include functions such as--

[[Page 5421]]

    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (ii) The operation of a major bodily function, such as the 
functions of the immune system, special sense organs and skin, normal 
cell growth, and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. 
The operation of a major bodily function includes the operation of an 
individual organ within a body system.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (i) of this 
definition but is treated by the agency as having such an impairment.
    (g) Qualified individual with a disability means--
    (1) With respect to any agency program or activity under which an 
individual is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or 
activity; and
    (3) Qualified individuals with disabilities as that term is defined 
for purposes of employment in 29 CFR 1614.203, which is made applicable 
to this part by Sec.  1850.130.
    (h) Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and 
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 
1810). As used in this part, Section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally 
assisted programs.


Sec. Sec.  1850.104-1850.109   [Reserved]


Sec.  1850.110   Notice.

    The agency shall make available to all interested individuals 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency as necessary to 
apprise such individuals of the protections assured them by Section 504 
and this part.


Sec. Sec.  1850.111-1850.119   [Reserved]


Sec.  1850.120   General prohibitions against discrimination against 
individuals with disabilities.

    (a) No qualified individual with a disability shall, on the basis 
of such disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the aid, benefit, or service.
    (2) A qualified individual with a disability may not be excluded 
from participation in any of the agency's programs or activities, even 
though permissibly separate or different programs or activities exist.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the agency, or;
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (5) The agency, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities 
to discrimination on the basis of disability.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
agency establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by 
the agency are not, themselves, covered by this part.
    (c) The exclusion of nondisabled individuals from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with disabilities or the exclusion of a specific class of individuals 
with disabilities from a program limited by Federal statute or 
Executive order to a different

[[Page 5422]]

class of individuals with disabilities is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.


Sec. Sec.  1850.121-1850.129   [Reserved]


Sec.  1850.130   Employment of qualified individuals with disabilities.

    No qualified individual with a disability shall, on the basis of 
such disability, be subject to discrimination in employment under any 
program or activity conducted by the agency. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act 
of 1973 (29 U.S.C. 791), as established by the Equal Employment 
Opportunity Commission in 29 CFR part 1614, shall apply to employment 
in federally conducted programs or activities.


Sec. Sec.  1850.131-1850.139   [Reserved]


Sec.  1850.140   Program accessibility: Discrimination against 
qualified individuals with disabilities prohibited.

    Except as otherwise provided in Sec.  1850.150, no qualified 
individual with disabilities shall, because the agency's facilities are 
inaccessible to or unusable by individuals with disabilities, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.


Sec. Sec.  1850.141-1850.149  [Reserved]


Sec.  1850.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities. This 
paragraph does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden 
of proving that compliance with Sec.  1850.150(a) would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head or the 
agency head's designee after considering all agency resources available 
for use in the funding and operation of the conducted program or 
activity and must be accompanied by a written statement of the reasons 
for reaching that conclusion. If an action would result in such an 
alteration or such burdens, the agency shall take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with disabilities. The agency 
is not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give 
priority to those methods that offer programs and activities to 
qualified individuals with disabilities in the most integrated setting 
appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec.  1850.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of Sec.  1850.150(a)(2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning individuals to guide individuals with disabilities 
into or through portions of historic properties that cannot otherwise 
be made accessible; or
    (iii) Adopting other innovative methods.


Sec.  1850.151   Program accessibility: New construction and 
alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings 
covered by this section.


Sec. Sec.  1850.152-1850.159   [Reserved]


Sec.  1850.160   Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a disability an equal 
opportunity to participate in, and enjoy the benefits of, a program or 
activity conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with parties by telephone, 
telecommunication devices for deaf individuals or equally effective 
telecommunication systems shall be used to communicate with individuals 
with impaired hearing.
    (b) The agency shall ensure that interested individuals, including 
individuals with impaired vision or hearing, can obtain information as 
to the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action 
that it can demonstrate would result in a

[[Page 5423]]

fundamental alteration in the nature of a program or activity or in 
undue financial and administrative burdens. In those circumstances 
where agency personnel believe that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the agency has the burden of 
proving that compliance with this section would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head or the 
agency head's designee after considering all agency resources available 
for use in the funding and operation of the conducted program or 
activity and must be accompanied by a written statement of the reasons 
for reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, individuals with disabilities receive the benefits and 
services of the program or activity.


Sec. Sec.  1850.161-1850.169  [Reserved]


Sec.  1850.170  Compliance procedures.

    (a) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791). See Directive No. 51, Equal Employment Opportunity, Non-
Discrimination Policy, for procedural information.
    (b) All complaints of discrimination on the basis of disability in 
programs and activities conducted by the agency shall be filed under 
the procedures described in this paragraph.
    (1) Who may file. Any individual who believes that they have been 
subjected to discrimination prohibited by this part, or an authorized 
representative of such individual, may file a complaint. Any individual 
who believes that any specific class of individuals has been subjected 
to discrimination prohibited by this part and who is a member of that 
class or the authorized representative of a member of that class may 
file a complaint. A charge on behalf of an individual or member of a 
class of individuals claiming to be aggrieved may be made by any 
individual, agency, or organization.
    (2) Where and when to file. Complaints shall be filed with the 
Director, Office of Equal Employment Opportunity (EEO Director), U.S. 
Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 
20036 within 35-calendar days of the alleged act of discrimination. A 
complaint filed by personal delivery is considered filed on the date it 
is received by the EEO Director. The date of filing by facsimile or 
email is the date the facsimile or email is sent. The date of filing by 
mail is determined by the postmark date; if no legible postmark date 
appears on the mailing, the submission is presumed to have been mailed 
five days (excluding days on which the agency is closed for business) 
before its receipt. The date of filing by commercial overnight delivery 
is the date the document was delivered to the commercial overnight 
delivery service.
    (3) Acceptance of complaint. (i) The agency shall accept a complete 
complaint that is filed in accordance with paragraph (b) of this 
section and over which it has jurisdiction. The EEO Director shall 
notify the complainant of receipt and acceptance of the complaint.
    (ii) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate entity.
    (iii) If the EEO Director receives a complaint that is not 
complete, the Director shall notify the complainant that additional 
information is needed. If the complainant fails to complete the 
complaint and return it to the EEO Director within 15 days of the 
complainant's receipt of the request for additional information, the 
EEO Director shall dismiss the complaint with prejudice and shall 
inform the complainant.
    (4) Initial decision. Within 180 days of the receipt of a complete 
complaint, the EEO Director shall notify the complainant of the results 
of the investigation in an initial decision containing--
    (i) Findings of fact and conclusions of law;
    (ii) When applicable, a description of a remedy for each violation 
found; and
    (iii) A notice of the right to appeal.
    (5) Appeals. Any appeal of the EEO Director's initial decision must 
be filed with the Principal Deputy Special Counsel (PDSC), U.S. Office 
of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036 
by the complainant within 35 days of the date the EEO Director issues 
the decision required by paragraph (b)(4) of this section. The agency 
may extend this time for good cause when a complainant shows that 
circumstances beyond the complainant's control prevented the filing of 
an appeal within the prescribed time limit. An appeal filed by personal 
delivery is considered filed on the date it is received by the PDSC. 
The date of filing by facsimile is the date of the facsimile. The date 
of filing by mail is determined by the postmark date; if no legible 
postmark date appears on the mailing, the submission is presumed to 
have been mailed five days (excluding days on which the agency is 
closed for business) before its receipt. The date of filing by 
commercial overnight delivery is the date the document was delivered to 
the commercial overnight delivery service. The appeal should be clearly 
marked ``Appeal of Section 504 Decision'' and must contain specific 
objections explaining why the complainant believes the initial decision 
was factually or legally wrong. A copy of the initial decision being 
appealed should be attached to the appeal letter.
    (6) Appeal decision. The PDSC shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the PDSC needs additional information from the complainant, the PDSC 
shall have 60 days from the date the additional information is received 
to make a determination on the appeal.
    (7) Extension of time. The time limits cited in paragraphs (b)(2) 
and (5) of this section may be extended for an individual case when the 
PDSC determines there is good cause, based on the particular 
circumstances of that case, for the extension.
    (8) Delegation of authority. The agency may delegate its authority 
for conducting complaint investigations to other Federal agencies or 
may contract with a nongovernmental investigator to perform the 
investigation, but the authority for making the final determination may 
not be delegated to another entity.
    (c) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with disabilities.


Sec. Sec.  1850.171-1850.999  [Reserved]

[FR Doc. 2022-01560 Filed 1-31-22; 8:45 am]
BILLING CODE P