Prohibited Personnel Practices, Disclosures of Information Evidencing Wrongdoing, FOIA, Production of Records or Testimony, Privacy Act, and Disability Regulations To Conform With Changes in Law and Filing Procedures and Other Technical Changes, 63401-63419 [2022-22155]

Agencies

• Office of Special Counsel

[Federal Register Volume 87, Number 201 (Wednesday, October 19, 2022)]
[Rules and Regulations]
[Pages 63401-63419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22155]



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

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

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

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


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

[[Page 63401]]



OFFICE OF SPECIAL COUNSEL

5 CFR Chapter 18


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

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

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

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

DATES: This final rule is effective October 19, 2022.

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

SUPPLEMENTARY INFORMATION: 

I. Background

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

II. Overview of Comments Received

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

III. General Comments

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

IV. Specific Comments

Comments on Part 1800--Filing of Complaints and Allegations

Comments on Sec.  1800.2(c)

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

[[Page 63402]]

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

[[Page 63403]]

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

Comments on Sec.  1800.2

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

Comments on Sec.  1800.3

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

[[Page 63404]]

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

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

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

Comments on Part 1830--Privacy Act Regulations

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

[[Page 63405]]

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

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

Final Rule

    Administrative Procedure Act (APA): This action is taken under the 
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations 
in the Federal Register.
    Executive Orders 12866 and 13771: This rule is not a regulatory 
action under Executive Order (E.O.) 13771 because OSC does not 
anticipate that proposed rule will have significant economic impact, 
raise novel issues, and/or have any other significant impacts. Thus, 
this rule is not a significant regulatory action under section 3(f) of 
E.O. 12866 and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of the Order.
    Congressional Review Act (CRA): OSC has determined that this rule 
is not subject to the CRA because it falls under the exception provided 
at 5 U.S.C. 804(3)(C).
    Regulatory Flexibility Act (RFA): The RFA does not apply because 
this rule will not directly regulate small entities. OSC therefore need 
not perform a regulatory flexibility analysis of small entity impacts.
    Unfunded Mandates Reform Act (UMRA): This rule does not impose any 
federal mandates on state, local, or tribal governments, or on the 
private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This rule will have no 
physical impact upon the environment and therefore will not require any 
further review under NEPA.
    Paperwork Reduction Act (PRA): This rule does not contain any 
information collection requirements that require the approval of the 
Office of Management and Budget under the PRA.

List of Subjects

5 CFR Parts 1800 and 1810

    Administrative practice and procedure.

5 CFR Part 1811

    Contracting with an inspector general.

5 CFR Parts 1820 and 1830

    Archives and records, Reporting and recordkeeping requirements.

5 CFR Part 1850

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

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

    For the reasons stated in the preamble, OSC issues this final rule 
to amend chapter 18 of title 5 of the Code of Federal Regulations as 
follows:

0
1. Revise part 1800 to read as follows:

PART 1800--FILING OF COMPLAINTS AND ALLEGATIONS

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

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


Sec.  1800.1   Scope and purpose.

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


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

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

[[Page 63406]]

investigative and prosecutorial jurisdiction over any allegation 
concerning the following:
    (1) Prohibited political activity by Federal employees covered by 
the Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;
    (2) Prohibited political activity by State and local officers and 
employees covered by the Hatch Act at title 5 of the U.S. Code, chapter 
15;
    (3) Arbitrary and capricious withholding of information that should 
be released pursuant to the Freedom of Information Act at 5 U.S.C. 552 
(except for certain foreign and counterintelligence information);
    (4) Activities prohibited by any civil service law, rule, or 
regulation, including any activity relating to political intrusion in 
personnel decision-making;
    (5) Involvement by any employee in any prohibited discrimination 
found by any court or appropriate administrative authority to have 
occurred in the course of any personnel action (unless OSC determines 
that the allegation may be resolved more appropriately under an 
administrative appeals procedure); and
    (6) Pursuant to 38 U.S.C. 4324, violations of the Uniformed 
Services Employment and Reemployment Rights Act (USERRA), codified at 
38 U.S.C. 4301, et seq.
    (c) Procedures for filing complaints alleging prohibited personnel 
practices or other prohibited activities (other than the Hatch Act). 
(1) Anyone may file a complaint with OSC alleging one or more 
prohibited personnel practices, or other prohibited activities within 
OSC's investigative jurisdiction. The OSC complaint form must be used 
to file all such complaints.
    (2) OSC will not process a complaint filed in any format other than 
the completed OSC complaint form designated in paragraph (c)(1) of this 
section. OSC will, however, accept material supplementing the contents 
of Form 14, as long as the filer also submits a signed form. If a filer 
does not use this form to submit a complaint, OSC will provide the 
filer with information about the form and obtain a signature on the 
form. The OSC complaint form will be considered to be filed on the date 
on which OSC receives a completed form.
    (3) The OSC complaint form requests that the filer provide basic 
information about the alleged prohibited personnel practices or other 
prohibited activities. A complaint may be amended to clarify or include 
additional allegations. A complaint is sufficient for investigation 
when OSC receives information identifying the parties, identifying any 
relevant personnel action(s), and describing generally the practices or 
activities at issue.
    (4) The OSC complaint form is available:
    (i) Online at: https://osc.gov (to print out and complete on paper, 
or to complete online);
    (ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M 
Street NW, Suite 218, Washington, DC 20036-4505; or
    (iii) By calling OSC at: (800) 872-9855 (toll-free), or (202) 804-
7000 (in the Washington, DC area).
    (5) A complainant can file a completed OSC complaint form:
    (i) Electronically at: https://osc.gov;
    (ii) By email to: [email protected]; or
    (iii) By mail to: U.S. Office of Special Counsel, 1730 M Street NW, 
Suite 218, Washington, DC 20036-4505.
    (d) Alternate Dispute Resolution. For selected cases, OSC may offer 
Alternative Dispute Resolution (ADR) pursuant to the voluntary 
Alternative Dispute Resolution Act of 1998, 5 U.S.C. 571-573. OSC 
provides information about its ADR program and process on its website 
at https://osc.gov.


Sec.  1800.3   Filing disclosures of information evidencing wrongdoing.

    (a) General. Pursuant to 5 U.S.C. 1213, OSC is authorized to 
provide an independent and secure channel for use by current or former 
Federal employees and applicants for Federal employment to disclose 
information that they reasonably believe evidences wrongdoing by a 
Federal agency. Within 45 days of receipt of the disclosure, OSC must 
determine whether there is a substantial likelihood that the 
information discloses a violation of any law, rule, or regulation; 
gross mismanagement; a gross waste of funds; an abuse of authority; a 
substantial and specific danger to public health or safety; or 
censorship related to scientific research or the integrity of the 
scientific process if the censorship will cause one of the 
aforementioned categories of wrongdoing. If it does, the law requires 
OSC to refer the information to the appropriate agency head for an 
investigation and a written report on the findings; and the agency head 
must submit the report to the Special Counsel. OSC may not disclose the 
identity of an individual who makes the disclosure unless the 
individual consents or the Special Counsel determines that the 
disclosure of the identity is necessary because of an imminent danger 
to public health or safety or imminent violation of any criminal law. 
The law does not authorize OSC to investigate any disclosure.
    (1) Deferral policy for certain disclosures. When OSC determines 
that a disclosure is being or has been investigated by an Agency, OSC 
will usually defer to such investigation rather than make a substantial 
likelihood determination.
    (b) Procedures for filing disclosures. Current or former Federal 
employees and applicants for Federal employment may file with OSC a 
disclosure of the type of information described in 5 U.S.C. 1213(a)(1). 
Such disclosures must be filed in writing.
    (1) Filers are encouraged to use the OSC complaint form, which is 
available online, to file a disclosure of the type of information 
described in 5 U.S.C. 1213(a)(1). OSC's complaint form provides more 
information about OSC jurisdiction and procedures for processing 
whistleblower disclosures. The OSC complaint form is available:
    (i) Online at: https://osc.gov (may be completed online or printed 
out and completed on paper);
    (ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M 
Street NW, Suite 218, Washington, DC 20036-4505; or
    (iii) By calling OSC at: (800) 572-2249 (toll-free), or (202) 804-
7004 (in the Washington, DC area).
    (2) Filers may use another written format to submit a disclosure to 
OSC, but the submission should include:
    (i) The name, mailing address, and telephone number(s) of the 
individual(s) making the disclosure(s);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A statement as to whether the filer consents to disclosure of 
the filer's identity by OSC to the agency involved, in connection with 
any OSC referral to that agency.


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

    (a) Procedures for filing complaints alleging Hatch Act violations.
    (1) Complainants are encouraged to use the OSC complaint form (Form 
14) to file Hatch Act complaints. The OSC complaint form is available:
    (i) Online at: https://osc.gov (to print out and complete on paper, 
or to complete online); or
    (ii) By writing to OSC at: U.S. Office of Special Counsel, 1730 M 
Street NW, Suite 218, Washington, DC 20036-4505.
    (2) Complaints alleging a violation of the Hatch Act not submitted 
on Form 14 may also be submitted in any written form, and should 
include:

[[Page 63407]]

    (i) The complainant's name, mailing address, and telephone number 
(unless the matter is submitted anonymously);
    (ii) The department or agency, location, and organizational unit 
complained of; and
    (iii) A concise description of the actions complained about, names 
and positions of employees who took the actions, if known to the 
complainant, and dates of the actions, preferably in chronological 
order, together with any documentary evidence that the complainant can 
provide.
    (3) Written Hatch Act complaints including the information in 
1800.4(a)(2) above may be filed with OSC:
    (i) By email to: [email protected]; or
    (ii) By mail to: U.S. Office of Special Counsel, 1730 M Street NW, 
Suite 218, Washington, DC 20036-4505.
    (b) Procedures for requesting Hatch Act advisory opinions. Pursuant 
to 5 U.S.C. 1212(f), OSC is authorized to issue advisory opinions only 
about political activity of Federal officers and employees, and 
political activity of certain State or local officers and employees. An 
individual can seek an advisory opinion from OSC:
    (1) By email to: [email protected];
    (2) By mail to: U.S. Office of Special Counsel, Hatch Act Unit, 
1730 M Street NW, Suite 218, Washington, DC 20036-4505; or
    (3) By phone at: (800) 854-2824 (toll-free), or (202) 804-7002 (in 
the Washington, DC area).

0
2. Revise part 1810 to read as follows:

PART 1810--INVESTIGATIVE AUTHORITY OF THE SPECIAL COUNSEL

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

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


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

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


Sec.  1810.2   Access to agency information in investigations.

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


Sec.  1810.3   Termination of certain OSC investigations.

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


Sec.  1810.4   Investigative policy regarding agency liaisons.

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

0
3. Add part 1811 to read as follows:

PART 1811--OUTSIDE INSPECTOR GENERAL

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


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

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

0
4. Revise part 1820 to read as follows:

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

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

[[Page 63408]]

1820.21 Fees.
1820.22 Final determination.
1820.23 Penalties.
1820.24 Conformity with other laws.

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


Sec.  1820.1   General provisions.

    This part contains rules and procedures followed by the U.S. Office 
of Special Counsel (OSC) in processing requests for records under the 
Freedom of Information Act (FOIA), codified at 5 U.S.C. 552. These 
rules and procedures should be read together with the FOIA and the FOIA 
page of OSC's website (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 type (for example, prohibited 
personnel practice (PPP), Hatch Act, USERRA, Hatch Act advisory 
opinion, or whistleblower disclosure) should be provided, if known. 
Whenever possible, requests should describe any particular record 
sought, such as the date, title or name, author, recipient, and subject 
matter. OSC requires proof of identification from requestors seeking 
their own case files. OSC requires a signed release of information from 
requestors seeking another individual's case file.
    (c) Agreement to pay fees. By making a FOIA request the requestor 
agrees to pay all applicable fees chargeable under Sec.  1820.7 unless 
the Special Counsel waives fees, the requestor is exempt, or the 
requestor otherwise qualifies for a waiver of fees.


Sec.  1820.3   Consultations and referrals.

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


Sec.  1820.4   Timing of responses to requests.

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


Sec.  1820.5   Responses to requests.

    (a) General. Ordinarily, OSC has twenty (20) business days from 
receipt to determine whether to grant or deny a FOIA request.
    (1) In unusual circumstances, OSC may extend the twenty (20) 
business-day deadline by written notice to the requestor setting forth 
the unusual circumstances justifying the extension. OSC shall notify 
the requestor if OSC cannot process the request in 20 days

[[Page 63409]]

and provide the requestor an opportunity to modify the request so that 
OSC can process the request within the 20-day time limit. OSC and the 
requestor can also negotiate an alternative time frame for processing 
the request or modified request. OSC's FOIA Public Liaison is available 
to assist in the resolution of any disputes between the requestor and 
OSC. OSC must also advise the requestor of the requestor's right to 
seek dispute resolution services from the National Archives and Records 
Administration's (NARA) Office of Government Information Services 
(OGIS). OSC may consider a requestor's refusal to reasonably modify the 
request or to negotiate an alternative time frame as a factor in 
determining whether unusual and/or exceptional circumstances exist.
    (2) Unusual circumstances means--
    (i) The need to search for and collect the requested records from 
OSC field offices, NARA storage facilities, or other locations away 
from OSC's FOIA office;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (iii) The need for consultation and/or referral with another OSC 
unit where the information concerns two or more components of OSC or 
with a Federal entity that has an interest in the information 
requested.
    (3) Exceptional circumstances means--
    (i) OSC has a backlog of pending requests and is making reasonable 
progress in reducing the backlog; and
    (ii) OSC estimates a search yield of more than 5000 pages.
    (b) OSC will notify the requestor in writing of its determination 
to grant or deny in full or in part a FOIA request.
    (c) Adverse determinations. Adverse determinations, or denials of 
requests, consist of: A determination to withhold any requested record 
in whole or in part; that a requested record does not exist or cannot 
be located; that a record is not readily reproducible in the form or 
format sought by the requestor; that the request does not seek a record 
subject to the FOIA; a determination on any disputed fee matter; or a 
denial of a request for expedited treatment. A notification to a 
requestor of an adverse determination on a request shall include:
    (1) A brief statement of the reason(s) for the denial of the 
request, including any FOIA exemption applied by OSC in denying the 
request; and
    (2) A statement that the denial may be appealed under Sec.  
1820.6(a), with a description of the requirements of that subsection.
    (d) Dispute resolution program. OSC shall inform FOIA requestors at 
all stages of the FOIA process of the availability of dispute 
resolution services provided by the FOIA Public Liaison or by NARA's 
OGIS.


Sec.  1820.6   Appeals.

    (a) Appeals of adverse determinations. A requestor may appeal an 
adverse determination to OSC's Office of General Counsel. The appeal 
must be in writing, and must be submitted either:
    (1) By email to: [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. At the discretion of 
the Special Counsel, OSC may exempt certain requestors from search and 
duplication fees, including PPP complainants and subjects; Hatch Act 
complainants and subjects; Hatch Act advisory opinion requestors; 
whistleblowers; and USERRA complainants. OSC charges commercial users 
for search, review, and duplication fees under the FOIA in accordance 
with paragraph (c) of this section, except where a waiver or reduction 
of fees is granted under paragraph (h) of this section. OSC charges 
duplication fees, but not search fees, to educational or non-commercial 
scientific institutions; and to representative of the news media or 
news media requestors. OSC charges both search fees and duplication 
fees to all other requestors. If an exempted requestor abuses its 
exempt fee status to file numerous, duplicative, and/or voluminous FOIA 
requests, OSC may suspend the requestor's exempt status and charge 
search and duplication fees. OSC may require up-front payment of fees 
before sending copies of requested records to a requestor. Requestors 
must pay fees by submitting to OSC's FOIA Officer a check or money 
order made payable to the Treasury of the United States. See generally 
Uniform Freedom of Information Act Fee Schedule and Guidelines 
(hereinafter OMB Fee Guidelines), 52 FR 10,012, 10,017-18 (Mar. 27, 
1987).
    (b) Definitions. For purposes of this section:
    All other requestors means all requestors who do not fall into the 
categories of commercial use, educational institution, noncommercial 
scientific institution, and representatives of the news media.
    Commercial use request means a request from or on behalf of an 
individual who seeks information for a use or purpose that furthers 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. If OSC determines that the 
requestor seeks to put the records to a commercial use, either because 
of the nature of the request or because OSC has reasonable cause to 
doubt a requestor's stated use, OSC shall provide the requestor with a 
reasonable opportunity to clarify.
    Direct costs mean those expenses that OSC incurs in searching for 
and duplicating (and, in the case of commercial use requests, 
reviewing) records to respond to a FOIA request. Direct costs include, 
for example, the salary of the employee performing the work (the basic 
rate of pay for the employee plus 16 percent of that rate to cover 
benefits) and the cost of operating duplicating equipment. Direct costs 
do not include overhead expenses such as rent, heating, or lighting the 
record storage facility.
    Duplication means the reasonable direct cost of making copies of 
documents.
    Educational institution means any school that operates a program of 
scholarly research. See OMB Fee Guidelines, 52 FR at 10,019. To be in

[[Page 63410]]

this category, a requestor must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scholarly research.
    Non-commercial scientific institution means an entity that is 
operated solely for the purpose of conducting scientific research the 
results of which are not intended to promote any particular product or 
industry and are not for commercial use.
    Representative of the news media or news media requestor means any 
individual or entity that gathers information of potential interest to 
a segment of the public, uses its editorial skills to turn the raw 
materials into a distinct work, and distributes that work to an 
audience. A non-exhaustive list of news media entities includes print 
newspapers, electronic outlets for print newspapers, broadcast and 
cable television networks and stations, broadcast and satellite radio 
networks and stations, internet-only outlets, and other alternative 
media as methods of news delivery evolve. For ``freelance'' journalists 
to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization, whether print or electronic. A requestor seeking to 
qualify as a news media requestor must not be seeking the requested 
records for a commercial use. The requestor's news-dissemination 
function is not considered to be a commercial use.
    Review means the process of examining a record located in response 
to a request in order to determine whether any portion of the record is 
exempt from release. Review includes redacting exempt material, and 
otherwise evaluating and preparing the records for release. Review 
includes time spent obtaining and considering any formal objection to 
release made by a business submitter under Sec.  1820.8(f). Review does 
not include time spent resolving general legal or policy issues about 
the application of exemptions. OSC may charge for review costs in 
connection with commercial use requests even if a record ultimately is 
not released.
    Search means the process of looking for and retrieving records or 
information responsive to a FOIA request, as well as page-by-page or 
line-by-line identification of responsive information within records.
    (c) Fees. OSC charges the following fees for responding to FOIA 
requests:
    (1) Search. (i) The first two hours of search are free. OSC may 
charge for time spent searching even if it fails to locate responsive 
records, or even if OSC determines that located records are exempt from 
release.
    (ii) OSC charges $5.50 per quarter hour spent by clerical personnel 
in searching for and retrieving a requested record; $9.00 per quarter 
hour of search time spent by professional personnel; and $17.50 per 
quarter hour for search assistance from managerial personnel.
    (iii) OSC charges the direct costs of conducting electronic 
searches, including the costs of operator or programmer staff time 
apportionable to the search.
    (iv) OSC may charge additional costs in accordance with the 
applicable billing schedule established by NARA for requests requiring 
the retrieval of records from any Federal Records Center.
    (2) Duplication. OSC charges all non-exempt requestors duplication 
fees after the first 100 pages. OSC's duplication fee for a standard 
paper photocopy of a record will be 25 cents per page. For copies 
produced by computer, such as discs or printouts, OSC will charge the 
direct costs, including staff time, of producing the copy. For other 
forms of duplication, OSC will charge the direct costs of that 
duplication.
    (3) Review. OSC charges review fees to commercial use requestors. 
OSC will not charge for review at the administrative appeal level.
    (d) Notice of anticipated fees in excess of $25.00. OSC shall 
notify the requestor of the actual or estimated fees when OSC 
determines or estimates that fees charged under this section would 
exceed $25.00, unless the requestor has indicated a willingness to pay 
fees at that level or if OSC waived fees before undertaking the search. 
OSC will not conduct a search or process responsive records until OSC 
and the requestor reach an agreement on the fees. If a requestor wants 
to pay a lower amount than $25.00, the fee notice will offer the 
requestor an opportunity to work with OSC to reformulate or narrow the 
request to try to lower the anticipated fees.
    (e) Charges for other services. OSC will notify requestors in 
advance if OSC intends to charge additional fees to provide special 
services, such as shipping records by other than ordinary mail.
    (f) Aggregating separate requests. OSC may aggregate requests and 
charge appropriate fees where OSC reasonably believes that a requestor 
or a group of requestors seek to avoid fees by dividing a request into 
a series of requests. OSC may presume that multiple such requests made 
within a 30-day period were divided in order to avoid fees. OSC will 
aggregate requests separated by more than 30 days only where a 
reasonable basis exists for determining that aggregation is warranted 
under the circumstances involved.
    (g) Advance payments. (1) For requests other than those described 
in paragraphs (g)(2) and (3) of this section, OSC will not require the 
requestor to make an advance payment before work is begun or continued 
on a request. Payment owed for work already completed (that is, pre-
payment after processing a request but before copies are sent to the 
requestor) is not an advance payment.
    (2) OSC may require advance payment up to the amount of the entire 
anticipated fee before beginning to process the request if OSC 
determines or estimates that a total fee to be charged under this 
section will exceed $250.00.
    (3) OSC may require the requestor to make an advance payment in 
full of the anticipated fee where a requestor has previously failed to 
pay a properly charged FOIA fee within 30 business days of the date of 
billing.
    (h) Requirements for waiver or reduction of fees. (1) OSC will 
furnish records responsive to a request without charge or at a charge 
reduced below that established under paragraph (c) of this section 
where OSC determines, based on all available information, that the 
requestor has demonstrated that:
    (i) Release of the requested records is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (ii) Release of the records is not primarily in the commercial 
interest of the requestor.
    (2) To determine whether the first fee waiver requirement is met, 
OSC will consider the following factors:
    (i) Whether the subject of the requested records concerns a direct 
and clear connection to ``the operations or activities of the 
government,'' not remote or attenuated.
    (ii) Whether the release is ``likely to contribute'' to an 
understanding of government operations or activities. The requested 
records must be meaningfully informative about government operations or 
activities in order to be ``likely to contribute'' to an increased 
public understanding of those operations or activities. The release of 
records already in the public domain is unlikely to contribute to such 
understanding.
    (iii) Whether release of the requested records will contribute to 
``public understanding.'' The release must contribute to the 
understanding of a reasonably broad audience of

[[Page 63411]]

individuals interested in the subject. OSC shall consider a requestor's 
expertise in the subject area and ability and intention to effectively 
convey information to the public. A representative of the news media 
presumptively satisfies this consideration.
    (iv) Whether the release is likely to contribute ``significantly'' 
to public understanding of government operations or activities. The 
requestor must demonstrate that the release would significantly enhance 
the public's understanding of the subject in question.
    (3) To determine whether the second fee waiver requirement is met, 
OSC will consider the following factors:
    (i) Whether the requestor has a commercial interest that would be 
furthered by the requested release. OSC shall consider any commercial 
interest of the requestor (with reference to the definition of 
``commercial use'' in paragraph (b)(1) of this section), or of any 
individual on whose behalf the requestor may be acting, that would be 
furthered by the requested release. Requestors shall be given an 
opportunity to provide explanatory information about this 
consideration.
    (ii) Whether any identified commercial interest in the disclosure, 
is equal to or less than that of any identified public interest. OSC 
ordinarily shall presume that a news media requestor has satisfied the 
public interest standard. Release to data brokers or others who 
primarily compile and market government information for direct economic 
return shall be presumed not to primarily serve the public interest.
    (4) Where only a portion of the records to be released satisfies 
the requirements for a waiver of fees, a waiver shall be granted for 
that portion.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (h)(1), (2), and (3) of this section, 
insofar as they apply to each request. OSC fee reduction or waiver 
decisions may consider the cost-effectiveness of its allocation of 
administrative resources.
    (i) No assessment of fees. OSC may not assess any search fees if it 
misses the statutory 20-business-day deadline to respond to the 
request, except under paragraphs (i)(1) and (2) of this section.
    (1) If OSC determined that unusual circumstances apply and OSC 
provided a timely written notice to the requestor, OSC may extend the 
20-day deadline by 10 business days. OSC may not assess any search 
fees, however, if it misses the extended deadline.
    (2) OSC may charge search fees if the search yield would exceed 
5,000 pages, and if OSC provides a timely written notice to the 
requestor.


Sec.  1820.8   Business information.

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


Sec.  1820.9   Other rights and services.

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

Subpart B--Production of Records or Testimony


Sec.  1820.10   Scope and purpose.

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

[[Page 63412]]

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


Sec.  1820.11   Applicability.

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


Sec.  1820.12   Definitions.

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


Sec.  1820.13   General prohibition.

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


Sec.  1820.14   Factors OSC will consider.

    The General Counsel has discretion to grant an employee permission 
to testify on matters relating to official information or produce 
official records and information, in response to a demand or request, 
with the general proviso that OSC's release of information is subject 
to the Privacy Act, 5 U.S.C. 552a, and applicable privileges including 
but not limited to the attorney work product and deliberative process 
privileges. See especially Sec. Sec.  1830.1(e)(2)(ii) and 1830.10(a) 
below. The General Counsel may also consider whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice; would assist or hinder 
OSC in performing its statutory duties; or would be in the best 
interest of OSC or the United States;
    (c) The records or testimony can be obtained from other sources;
    (d) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (e) Release would violate a statute, Executive Order, or 
regulation; would reveal trade secrets, confidential, sensitive, or 
privileged information, or information that would otherwise be 
inappropriate for release; or would impede or interfere with an ongoing 
law enforcement investigation or proceeding, or compromise 
constitutional rights or national security interests;
    (f) Allowing such testimony or production of records would result 
in OSC appearing to favor one litigant over another;
    (g) A substantial government interest is implicated;
    (h) The demand or request is within the authority of the party 
making it; and/or
    (i) The demand or request is sufficiently specific to be answered.


Sec.  1820.15   Service of requests or demands.

    Requests or demands for official records or information or 
testimony under this subpart must be served by mail to the U.S. Office 
of Special Counsel, Office of General Counsel, 1730 M Street NW, Suite 
218, Washington, DC 20036-4505; or by email to [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 part. A request should be submitted before a demand is 
issued.
    (a) The request must be in writing (email suffices) and must be 
submitted to the General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal or administrative proceeding, docket 
number, and name and address of the court or other administrative or 
regulatory authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal or 
administrative proceeding, and a specific description of the substance 
of the testimony or records sought;
    (4) A statement addressing the factors set out in Sec.  1820.14;
    (5) A statement indicating that the information sought is not 
available from another source;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requestor and other 
parties will require of each OSC employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) OSC reserves the right to require additional information to 
complete the request where appropriate.
    (d) The request should be submitted at least 14 days before the 
date that records or testimony is required.

[[Page 63413]]

    (e) The General Counsel may deny a request for records or testimony 
based on a requestor's failure to cooperate in good faith to enable the 
General Counsel to make an informed decision.
    (f) The request should state that the requestor will provide a copy 
of the OSC employee's testimony free of charge and that the requestor 
will permit OSC to have a representative present during the employee's 
testimony.


Sec.  1820.17   Processing requests or demands.

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


Sec.  1820.18   Restrictions that apply to testimony.

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


Sec.  1820.19   Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official OSC records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure.
    (b) If the General Counsel so determines, original OSC records may 
be presented for examination in response to a request, but they may not 
be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official OSC records, nor may they be 
marked or altered.


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

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


Sec.  1820.21   Fees.

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


Sec.  1820.22   Final determination.

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


Sec.  1820.23   Penalties.

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


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

    This regulation is not intended to conflict with 5 U.S.C. 
2302(b)(13) or with any statutory or common law privilege against the 
release of protected information. This part does not create any right, 
entitlement, or benefit, substantive or procedural, that a party may 
rely upon in any legal proceeding against the United States.

0
5. Revise part 1830 to read as follows:

PART 1830--PRIVACY ACT REGULATIONS

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

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


Sec.  1830.1   Scope and purpose.

    (a) This part contains rules and procedures followed by OSC in 
processing requests for records under the Privacy Act. Further 
information about access to OSC records generally is available on OSC's 
website at https://osc.gov/Privacy.

[[Page 63414]]

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


Sec.  1830.2   Definitions.

    As used in this part:
    Access means availability of a record to a subject individual.
    Disclosure means the availability or release of a record.
    Maintain means to maintain, collect, use, or disseminate when used 
in connection with the term ``record;'' and to have control over or 
responsibility for a system of records when used in connection with the 
term ``system of records.''
    Notification means communication to an individual whether or not 
they are a subject individual.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by OSC, including, but not limited to, 
the individual's education, financial transactions, medical history, 
criminal, or employment history, that contains a name or an identifying 
number, symbol, or other identifying particular assigned to the 
individual. When used in this part, record means only a record that is 
in a system of records.
    Release means making available all or part of the information or 
records contained in an OSC system of records.
    Responsible OSC official means the officer listed in a notice of a 
system of records as the system manager or another individual listed in 
the notice of a system of records to whom requests may be made, or the 
designee of either such officer or individual.
    Subject individual means that individual to whom a record pertains.
    System of records means any group of records under the control of 
OSC from which a record is retrieved by personal identifier such as the 
name of the individual, number, symbol or other unique retriever 
assigned to the individual. Single records or groups of records which 
are not retrieved by a personal identifier are not part of a system of 
records. See 5 U.S.C. 552a(a)(5).


Sec.  1830.3   Requirements for making Privacy Act requests.

    (a) Submission of requests. A request for OSC records under the 
Privacy Act must be made in writing. The request must be sent:
    (1) By email to: [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 licensed health 
care professional the individual designates in writing. Upon receipt of 
the designation, the licensed health care professional will be 
permitted to review the records or to receive copies by mail upon 
proper verification of identity.


Sec.  1830.5   Requirements for requesting amendment of records.

    (a) Submission of requests. Individuals may request amendment of 
records pertaining to them that are subject to amendment under the 
Privacy Act and this part. The request must be sent:
    (1) By email to: [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

[[Page 63415]]

determination on the request shall be made promptly.
    (e) What will not change. The Privacy Act amendment or correction 
process will not be used to alter, delete, or amend information which 
is part of a determination of fact or which is evidence received in the 
record of a claim in any form of an administrative appeal process. 
Disagreements with these determinations are to be resolved through the 
assigned OSC Program Office.
    (f) Notice of error. If the record is wrong, OSC will correct it 
promptly. If wrong information was disclosed from the record, we will 
tell those of whom we are aware received that information that it was 
wrong and will give them the correct information. This will not be 
necessary if the change is not due to an error--e.g., a change of name 
or address.
    (g) Record found to be correct. If the record is correct, OSC will 
inform the requestor in writing of the reason why we refuse to amend 
the record, the right to appeal the refusal, and the name and address 
of the official to whom the appeal should be sent.
    (h) Record of another government agency. If you request OSC to 
correct or amend a record governed by the regulation of another 
government agency, we will forward your request to such government 
agency for processing and we will inform you in writing of the 
referral.


Sec.  1830.6   Appeals.

    (a) Appeals of adverse determinations. A requestor may appeal a 
denial of a Privacy Act request for access to or amendment of records 
to OSC's Office of General Counsel. The appeal must be in writing and 
be sent:
    (1) By email to: [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 requests to amend records. This exemption aims 
to prevent interference with OSC's inquiries into matters under its 
jurisdiction, and to protect identities of confidential sources of 
information. OSC also reserves the right to assert exemptions for 
records received from another agency that could be properly claimed by 
that agency. OSC may exempt any information compiled in reasonable 
anticipation of a legal action or proceeding.


Sec.  1830.8   Fees.

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


Sec.  1830.9   Accounting for releases.

    OSC will maintain an accounting of all releases of a record for six 
(6) years or for the life of the record in accordance with the General 
Records Schedule, whichever is longer--except that, we will not make an 
accounting for releases:
    (a) Of a subject individual's records record made with the subject 
individual's consent;
    (b) To employees of OSC who have a need for the record to perform 
their duties; and
    (c) Required under the Freedom of Information Act, 5 U.S.C. 552, 
and part 1820 of this chapter.


Sec.  1830.10   Conditions of release.

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

0
6. Revise part 1850 to read as follows:

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

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

    Authority: 29 U.S.C. 794.


Sec.  1850.101   Purpose.

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


Sec.  1850.102   Application.

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

[[Page 63416]]

Sec.  1850.103   Definitions.

    Auxiliary aids means services or devices that enable individuals 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by OSC. For example, auxiliary aids useful for 
individuals with impaired vision include readers, Braille materials, 
audio recordings, and other similar services and devices. Auxiliary 
aids useful for individuals with impaired hearing include telephone 
handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf individuals (TDDs), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes OSC's alleged 
discriminatory action in sufficient detail to inform OSC of the nature 
and date of the alleged violation of Section 504. It shall be signed by 
the complainant or by someone authorized to do so on the complainant's 
behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Days means calendar days, unless otherwise stated.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with a disability means any individual who has a 
physical or mental impairment that substantially limits one or more 
major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. The following phrases used in 
this definition are further defined as follows:
    Physical or mental impairment includes--
    (1) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (2) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (3) Also, physical and mental impairment includes, but is not 
limited to, such diseases and conditions as orthopedic, visual, speech, 
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental 
retardation, emotional illness, and drug addiction and alcoholism.
    Major life activities include functions such as--
    (1) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (2) The operation of a major bodily function, such as the functions 
of the immune system, special sense organs and skin, normal cell 
growth, and digestive, genitourinary, bowel, bladder, neurological, 
brain, respiratory, circulatory, cardiovascular, endocrine, hemic, 
lymphatic, musculoskeletal, and reproductive systems. The operation of 
a major bodily function includes the operation of an individual organ 
within a body system.
    Qualified individual with a disability means--
    (1) With respect to any OSC program or activity under which an 
individual is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of OSC's 
program or activity without modifications in the program or activity 
that OSC can demonstrate would result in a fundamental alteration in 
its nature;
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or 
activity; and
    (3) Qualified individuals with disabilities as that term is defined 
for purposes of employment in 29 CFR 1614.203, which is made applicable 
to this part by Sec.  1850.130.
    Has a record of such an impairment means has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    Is regarded as having an impairment means--
    (1) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as 
constituting such a limitation;
    (2) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (3) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Section 504 means Section 504 of the Rehabilitation Act of 1973 
(Pub. L. No. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. No. 93-516, 88 Stat. 
1617); the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. No. 95-602, 92 Stat. 2955); 
and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 
Stat. 1810). As used in this part, Section 504 applies only to programs 
or activities conducted by Executive agencies and not to federally 
assisted programs.


Sec.  Sec.  1850.104-1850.109  [Reserved]


Sec.  1850.110  Notice.

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


Sec.  Sec.  1850.111-1850.119  [Reserved]


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

    (a) No qualified individual with a disability shall, on the basis 
of such disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity conducted by OSC.
    (b) OSC, in providing any aid, benefit, or service, may not, 
directly or through contractual, licensing, or other arrangements, on 
the basis of disability--
    (1) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, or service;
    (2) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (3) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain

[[Page 63417]]

the same result, to gain the same benefit, or to reach the same level 
of achievement as that provided to others;
    (4) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (5) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (6) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (7) OSC may not exclude a qualified individual with a disability 
from participation in any of OSC's programs or activities, even though 
permissibly separate or different programs or activities exist.
    (c) OSC may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (1) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (2) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with disabilities.
    (d) OSC may not, in determining the site or location of a facility, 
make selections the purpose or effect of which would--
    (1) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by OSC, or;
    (2) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (e) OSC, in the selection of procurement contractors, may not use 
criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (f) OSC may not administer a licensing or certification program in 
a manner that subjects qualified individuals with disabilities to 
discrimination on the basis of disability, nor may OSC establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with disabilities to 
discrimination on the basis of disability. However, the programs or 
activities of entities that are licensed or certified by OSC are not, 
themselves, covered by this part.
    (g) This part does not prohibit the exclusion of nondisabled 
individuals from the benefits of a program limited by Federal statute 
or Executive order to individuals with disabilities or the exclusion of 
a specific class of individuals with disabilities from a program 
limited by Federal statute or Executive order to a different class of 
individuals with disabilities.
    (h) OSC shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.


Sec.  Sec.  1850.121-1850.129  [Reserved]


Sec.  1850.130   Employment of qualified individuals with disabilities.

    OSC shall not subject any qualified individual with a disability, 
on the basis of such disability, to discrimination in employment under 
any program or activity OSC conducts. The definitions, requirements, 
and procedures of Section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791), as established by the Equal Employment Opportunity 
Commission in 29 CFR part 1614, shall apply to employment in federally 
conducted programs or activities.


Sec.  Sec.  1850.131-1850.139  [Reserved]


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

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


Sec.  Sec.  1850.141-1850.149  [Reserved]


Sec.  1850.150   Program accessibility: Existing facilities.

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

[[Page 63418]]

of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning individuals to guide individuals with disabilities 
into or through portions of historic properties that cannot otherwise 
be made accessible; or
    (iii) Adopting other innovative methods.


Sec.  1850.151   Program accessibility: New construction and 
alterations.

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


Sec.  Sec.  1850.152-1850.159  [Reserved]


Sec.  1850.160  Communications.

    (a) OSC shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) OSC shall furnish appropriate auxiliary aids where necessary to 
afford an individual with a disability an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by OSC.
    (i) In determining what type of auxiliary aid is necessary, OSC 
shall give primary consideration to the requests of the individual with 
a disability.
    (ii) OSC need not provide individually prescribed devices, readers 
for personal use or study, or other devices of a personal nature.
    (2) Where OSC communicates with parties by telephone, 
telecommunication devices for deaf individuals or equally effective 
telecommunication systems shall be used to communicate with individuals 
with impaired hearing.
    (b) OSC shall ensure that interested individuals, including 
individuals with impaired vision or hearing, can obtain information as 
to the existence and location of accessible services, activities, and 
facilities.
    (c) OSC shall provide signage at a primary entrance to each of its 
inaccessible facilities, if any, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require OSC to take any action that it 
can demonstrate would result in a fundamental alteration in the nature 
of a program or activity or in undue financial and administrative 
burdens. In those circumstances where OSC personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, OSC has the 
burden of proving that compliance with this section would result in 
such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Special Counsel or 
the Special Counsel's designee after considering all OSC resources 
available for use in the funding and operation of the conducted program 
or activity and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action required to comply 
with this section would result in such an alteration or such burdens, 
OSC shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that, to the 
maximum extent possible, individuals with disabilities receive the 
benefits and services of the program or activity.


Sec.  Sec.  1850.161-1850.169  [Reserved]


Sec.  1850.170   Compliance procedures.

    (a) OSC shall process complaints alleging violations of section 504 
with respect to employment according to the procedures established by 
the Equal Employment Opportunity Commission in 29 CFR part 1614 
pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791).
    (b) All complaints of discrimination on the basis of disability in 
programs and activities conducted by OSC shall be filed under the 
procedures described in this paragraph.
    (1) Who may file. Any individual who believes that they have been 
subjected to discrimination prohibited by this part, or an authorized 
representative of such individual, may file a complaint. Any individual 
who believes that any specific class of individuals has been subjected 
to discrimination prohibited by this part and who is a member of that 
class or the authorized representative of a member of that class may 
file a complaint. A charge on behalf of an individual or member of a 
class of individuals claiming to be aggrieved may be made by any 
individual, agency, or organization.
    (2) Where and when to file. Complaints shall be filed with the 
Director, Office of Equal Employment Opportunity (EEO Director), U.S. 
Office of Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 
20036 within 35-calendar days of the alleged act of discrimination. A 
complaint filed by personal delivery is considered filed on the date it 
is received by the EEO Director. The date of filing by email is the 
date the email is sent. The date of filing by mail is determined by the 
postmark date; if no legible postmark date appears on the mailing, the 
submission is presumed to have been mailed five days (excluding days on 
which the agency is closed for business) before its receipt. The date 
of filing by commercial overnight delivery is the date the document was 
delivered to the commercial overnight delivery service.
    (3) Acceptance of complaint. (i) OSC shall accept a complete 
complaint that is filed in accordance with paragraph (b) of this 
section and over which it has jurisdiction. The EEO Director shall 
notify the complainant of receipt and acceptance of the complaint.
    (ii) If OSC receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate entity.
    (iii) If the EEO Director receives a complaint that is not 
complete, the Director shall notify the complainant that additional 
information is needed. If the complainant fails to complete the 
complaint and return it to the EEO Director within 15 days of the 
complainant's receipt of the request for additional information, the 
EEO Director shall dismiss the complaint with prejudice and shall 
inform the complainant.
    (4) Within 180 days of the receipt of a complete complaint, the EEO 
Director shall notify the complainant of the results of the 
investigation in an initial decision containing--
    (i) Findings of fact and conclusions of law;
    (ii) When applicable, a description of a remedy for each violation 
found; and
    (iii) A notice of the right to appeal.
    (5) Any appeal of the EEO Director's initial decision must be filed 
with the Principal Deputy Special Counsel (PDSC), U.S. Office of 
Special Counsel, 1730 M Street NW, Suite 218, Washington, DC 20036 by 
the complainant within 35 days of the date the EEO Director issues the 
decision required by paragraph (b)(4) of this section. OSC may extend 
this time for good cause when a complainant shows that circumstances 
beyond the

[[Page 63419]]

complainant's control prevented the filing of an appeal within the 
prescribed time limit. An appeal filed by personal delivery is 
considered filed on the date it is received by the PDSC. The date of 
filing by mail is determined by the postmark date; if no legible 
postmark date appears on the mailing, the submission is presumed to 
have been mailed five days (excluding days on which the agency is 
closed for business) before its receipt. The date of filing by 
commercial overnight delivery is the date the document was delivered to 
the commercial overnight delivery service. The appeal should be clearly 
marked ``Appeal of Section 504 Decision'' and must contain specific 
objections explaining why the complainant believes the initial decision 
was factually or legally wrong. A copy of the initial decision being 
appealed should be attached to the appeal letter.
    (6) The PDSC shall notify the complainant of the results of the 
appeal within 60 days of the receipt of the request. If the PDSC needs 
additional information from the complainant, the PDSC shall have 60 
days from the date the additional information is received to make a 
determination on the appeal.
    (7) The time limits cited in paragraphs (b)(2) and (5) of this 
section may be extended for an individual case when the PDSC determines 
there is good cause, based on the particular circumstances of that 
case.
    (8) OSC may delegate its authority for conducting complaint 
investigations to other Federal agencies or may contract with a 
nongovernmental investigator to perform the investigation, but the 
authority for making the final determination may not be delegated to 
another entity.
    (c) OSC shall notify the Architectural and Transportation Barriers 
Compliance Board upon receipt of any complaint alleging that a building 
or facility that is subject to the Architectural Barriers Act of 1968, 
as amended (42 U.S.C. 4151-4157), is not readily accessible to and 
usable by individuals with disabilities.


Sec.  Sec.  1850.171-1850.999  [Reserved]

[FR Doc. 2022-22155 Filed 10-18-22; 8:45 am]
BILLING CODE 7405-01-P