[Federal Register Volume 67, Number 69 (Wednesday, April 10, 2002)]
[Proposed Rules]
[Pages 17528-17554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7925]
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Part III
Commission on Civil Rights
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45 CFR Part 701 et al.
Operations, Functions, and Structure of Civil Rights Commission;
Proposed Rule
Federal Register / Vol. 67, No. 69 / Wednesday, April 10, 2002 /
Proposed Rules
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COMMISSION ON CIVIL RIGHTS
45 CFR Parts 701, 702, 703, 704, 705, 706, 707, and 708
Operations, Functions, and Structure of Civil Rights Commission
AGENCY: Commission on Civil Rights.
ACTION: Proposed rule with request for comments.
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SUMMARY: The United States Commission on Civil Rights proposes to
revise its regulations to provide the organizational structure,
procedures, and program processes of the Commission.
DATES: Comments should be submitted on or before June 10, 2002 to be
considered in the formulation of final rules.
ADDRESSES: Interested parties should submit written comments to: U.S.
Commission on Civil Rights, Office of General Counsel, Attn: Debra A.
Carr, Esq., 624 Ninth Street, NW., Washington, DC, 20425. E-mail
comments should be addressed to [email protected]. Please cite 45
CFR in all correspondence related to these proposed revisions.
FOR FURTHER INFORMATION CONTACT: Contact Debra A. Carr, Deptuy General
Counsel, U.S. Commission on Civil Rights, 624 Ninth Street, NW.,
Washington, DC 20425, (202) 376-8351.
SUPPLEMENTARY INFORMATION: The General Accounting Office (GAO)
recommended the U.S. Commission on Civil Rights develop and document
policies and procedures that (1) assign responsibility for management
functions to the staff director and other Commission employees and (2)
provide mechanisms to hold these personnel accountable for properly
managing the Commission's day-to-day operations. These revisions update
the agency's regulations consistent with GAO's recommendations and
updates the Commission's regulations to reflect the procedures and
practices of the agency.
List of Subjects
45 CFR Part 701
Organization and functions (Government agencies).
45 CFR Part 702
Administrative practice and procedure, Sunshine Act.
45 CFR Part 703
Advisory committees, Organization and functions (Government
agencies).
45 CFR Part 704
Freedom of information.
45 CFR Part 705
Privacy.
45 CFR Part 706
Conflict of interests.
45 CFR Part 707
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Individuals
with disabilities.
45 CFR Part 708
Claims, Government employees.
For the reasons set forth in the preamble, the Commission on Civil
Rights proposes to revise 45 CFR chapter VII to read as follows:
PART 701--ORGANIZATION AND FUNCTIONS OF THE COMMISSION
Subpart A--Organizations and Functions
Sec.
701.1 Establishment.
701.2 Responsibilities.
Subpart B--Organization Statement
701.10 Membership of the Commission.
701.11 Commission meetings--duties of the Chairperson.
701.12 Staff Director.
701.13 Staff organization and functions.
Authority: 42 U.S.C. 1975, 1975a, 1975b.
Subpart A--Organizations and Functions
Sec. 701.1 Establishment.
The United States Commission on Civil Rights (hereinafter referred
to as the ``Commission'') is a bipartisan agency of the executive
branch of the Government. The predecessor agency to the present
Commission was established by the Civil Rights Act of 1957, 71 Stat.
634. This Act was amended by the Civil Rights Act of 1960, 74 Stat. 86;
the Civil Rights Act of 1964, 78 Stat. 241; by 81 Stat. 582 (1967); by
84 Stat. 1356 (1970); by 86 Stat. 813 (1972); and by the Civil Rights
Act of 1978, 92 Stat. 1067. The present Commission was established by
the United States Commission on Civil Rights Act of 1983, 97 Stat.
1301, as amended by the Civil Rights Commission Amendments Act of 1994,
108 Stat. 4339. The statutes are codified in 42 U.S.C. 1975 through
1975d. (Hereinafter, the 1994 Act will be referred to as ``the Act.'')
Sec. 701.2 Responsibilities.
(a) The Commission's authority under 42 U.S.C. 1975a(a) may be
summarized as follows:
(1) To investigate allegations in writing under oath or affirmation
that citizens of the United States are being deprived of their right to
vote and have that vote counted by reason of color, race, religion,
sex, age, disability, or national origin;
(2) To study and collect information relating to discrimination or
a denial of equal protection of the laws under the Constitution because
of color, race, religion, sex, age, disability or national origin or in
the administration of justice;
(3) To appraise the laws and policies of the Federal Government
relating to discrimination or denials of equal protection of the laws
under the Constitution because of, color, race, religion, sex, age,
disability, or national origin or in the administration of justice;
(4) To serve as a national clearinghouse for information relating
to discrimination or denials of equal protection of the laws because of
color, race, religion, sex, age, disability, or national origin;
(5) To prepare public service announcements and advertising
campaigns to discourage discrimination or denials of equal protection
of the laws because of color, race, religion, sex, age, disability, or
national origin.
(b) Under 42 U.S.C. 1975a(c), the Commission is required to submit
at least one report annually that monitors Federal civil rights
enforcement efforts in the United States and other such reports to the
President and to the Congress at such times as the Commission, the
Congress, or the President shall deem appropriate.
(c) In fulfilling these responsibilities the Commission is
authorized by the Act to hold hearings and to issue subpoenas for the
attendance of witnesses; to consult with governors, attorneys general;
and other representatives of State and local governments, and private
organizations; and is required to establish an advisory committee in
each State. The Act also provides that all Federal agencies shall
cooperate fully with the Commission so that it may effectively carry
out its functions and duties.
Subpart B--Organization Statement
Sec. 701.10 Membership of the Commission.
(a) The Commission is composed of eight members (or
``Commissioners''), not more than four of whom may be of the same
political party. The President shall appoint four members, the
President pro tempore of the Senate shall appoint two, and the Speaker
of the House of Representatives shall appoint two.
(b) The Chairperson and Vice Chairperson of the Commission are
designated by the President with the concurrence of a majority of the
[[Page 17529]]
Commissioners. The Vice Chairperson acts as Chairperson in the absence
or disability of the Chairperson or in the event of a vacancy in that
office.
(c) No vacancy in the Commission affects its powers and any vacancy
is filled in the same manner and is subject to the same limitations
with respect to party affiliations as previous appointments.
(d) Five members of the Commission constitute a quorum.
Sec. 701.11 Commission meetings--duties of the Chairperson.
(a) At a meeting of the Commission in each calendar year, the
Commission shall, by vote of the majority, adopt a schedule of
Commission meetings for the following calendar year.
(b) In addition to the regularly scheduled meetings, it is the
responsibility of the Chairperson to call the Commission to meet in a
special open meeting at such time and place as he or she shall deem
appropriate; provided however, that upon the motion of a member, and a
favorable vote by a majority of Commission members, a special meeting
of the Commission may be held in the absence of a call by the
Chairperson.
(c) The Chairperson, after consulting with the Staff Director,
shall establish the agenda for each meeting. The agenda at the meeting
of the Commission may be modified by the addition or deletion of
specific items upon the motion of a Commissioner and a favorable vote
by a majority of the members.
(d) In the event that after consulting with the members of the
Commission and consideration of the views of the members the
Chairperson determines that there are insufficient substantive items on
a proposed meeting agenda to warrant holding a scheduled meeting, the
Chairperson may cancel such meeting.
Sec. 701.12 Staff Director.
A Staff Director for the Commission is appointed by the President
with the concurrence of a majority of the Commissioners. The Staff
Director is the administrative head of the agency.
Sec. 701.13 Staff organization and functions.
The Commission staff organization and function are as follows:
(a) Office of the Staff Director. Under the direction of the Staff
Director, this Office defines and disseminates to staff the policies
established by the Commissioners; develops program plans for
presentation to the Commissioners; evaluates program results;
supervises and coordinates the work of other agency offices; manages
the administrative affairs of the agency; appoints an Equal Employment
Opportunity Officer for the agency's in-house Equal Employment
Opportunity Program; and conducts agency liaison with the Executive
Office of the President, the Congress, and other Federal agencies.
(b) Office of the Deputy Staff Director. Under the direction of the
Deputy Staff Director, this Office is responsible for the day-to-day
administration of the agency; evaluation of quantity and quality of
program efforts; personnel administration; and the supervision of
Office Directors who do not report directly to the Staff Director.
(c) Office of the General Counsel. Under the direction of the
General Counsel, who reports directly to the Staff Director, this
office serves as legal counsel to the Commissioners and to the agency;
legal aspects of agency-related personnel actions, employment issues,
and labor relations issues; plans and conducts hearings and
consultations for the Commission; conducts legal studies; prepares
reports of legal studies and hearings; drafts or reviews proposals for
legislative and executive action; receives and responds to requests for
material under the Freedom of Information Act, Federal Advisory
Committee Act, Administrative Procedures Act, and the Sunshine Act;
serves as the agency's ethics office and responds to requests for
advice and guidance on questions of ethical conduct, conflicts of
interest, and reporting financial interest; and reviews all agency
publications and congressional testimony for legal sufficiency.
(d) Office of Management. This Office is responsible for all
administrative, management, and facilitative services necessary for the
operation of the agency, including financial management, personnel,
publications, and the National Clearinghouse Library. This office
consists of three divisions reporting directly to the Staff Director.
(1) Administrative Services and Clearinghouse Division. Under the
direction of the Chief of Administrative Services, this Division is
responsible for the identification and acquisition of Commission
hearing facilities; oversight of the Rankin Library and the
distribution of publications; procurement; information and resources
management; security; telecommunications; transportation; space
management; repair and maintenance services; supplies; central mailing
lists; and assorted other administrative duties and functions;
(2) Budget and Finance Division. Under the direction of the Chief
of Budget and Finance, this Division is responsible for budget
preparation, formulation, justification, and execution; financial
management; and accounting, including travel for Commissioners and
staff; and
(3) Human Resources Division. Under the direction of the Director
of Human Resources, this Division is responsible for human resources
development, including career staffing, classification, benefits, time
and attendance, training, and compensation.
(e) Office of Federal Civil Rights Evaluation. Under the direction
of an Assistant Staff Director, this Office is responsible for
monitoring, evaluating and reporting on the civil rights enforcement
effort of the Federal Government; developing concepts for programs,
projects, and policies directed toward the achievement of Commission
goals; preparing documents that articulate the Commission's views and
concerns regarding Federal civil rights to Federal agencies having
appropriate jurisdiction; and receiving complaints alleging denial of
civil rights because of color, race, religion, sex, age, disability, or
national origin and referring these complaints to the appropriate
government agency for investigation and resolution.
(f) Congressional Affairs Unit. This Unit is responsible for
liaison with committees and members of Congress or their staffs,
monitoring legislative activities relating to civil rights, and
preparing testimony for presentation before committees of Congress when
such testimony has been requested by a committee.
(g) Public Affairs Unit. Under the direction of the Chief of Public
Affairs, this Unit is responsible for planning and managing briefings
at which the Commission receives information regarding civil rights
issues; developing plans for community outreach activities; managing
the Commission's public service announcements; media releases and press
conferences; preparing for publication periodic updates of Commission
activities and a Commission civil rights magazine; and keeping the
Commission and Commission staff apprised of civil rights conferences
and activities.
(h) Regional Programs Coordination Unit. Under the direction of the
Chief of the Regional Programs Coordination Unit, this Unit is
responsible for directing and coordinating the programs and work of the
regional offices and 51 State Advisory Committees to the Commission and
maintaining liaison between the regional offices and the various
headquarters' offices of the Commission.
[[Page 17530]]
(i) Regional Offices. The Commission has six regional offices, each
headed by a Director, that coordinate studies and fact-finding
activities on a variety of civil rights issues addressed by the State
Advisory Committees (SAC) in their regions and approved by the Staff
Director; report to the Commission on the results of SAC activities;
submit SAC reports to the Commission for action; and assist with
follow-up on recommendations included in SAC or Commission reports. The
name of the Director, the address, and telephone and facsimile numbers
for each regional office are published annually in the ``United States
Government Manual''. The regions and the SACs that they serve are:
Region I: Eastern Regional Office, Washington, D.C.
Connecticut, Delaware, District of Columbia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Rhode Island, and Vermont, Virginia, West Virginia.
Region II: Southern Regional Office, Atlanta, Georgia.
Florida, Georgia, Kentucky, North Carolina, South Carolina, and
Tennessee.
Region III: Midwestern Regional Office, Chicago, Illinois
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Region IV: Central Regional Office, Kansas City, Kansas
Alabama, Arkansas, Iowa, Kansas, Louisiana, Mississippi,
Missouri, Nebraska, and Oklahoma.
Region V: Rocky Mountain Regional Office, Denver, Colorado
Colorado, Montana, New Mexico North Dakota, South Dakota, Utah,
and Wyoming.
Region VI: Western Regional Office, Los Angeles, California
Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon,
Texas, and Washington.
PART 702--RULES ON HEARINGS, REPORTS AND MEETINGS OF THE COMMISSION
Subpart A--Hearings and Reports
Sec.
702.1 Definitions.
702.2 Authorization for hearing.
702.3 Notice of hearing.
702.4 Subpoenas.
702.5 Conduct of proceedings.
702.6 Executive session.
702.7 Counsel.
702.8 Evidence at Commission proceedings.
702.9 Cross-examination at public session.
702.10 Voluntary witnesses at public session of a hearing.
702.11 Special executive session.
702.12 Contempt of the Commission.
702.13 Intimidation of witnesses.
702.14 Transcript of Commission proceedings.
702.15 Witness fees.
702.16 Attendance of news media at public sessions.
702.17 Communications with respect to Commission proceedings.
702.18 Commission reports.
Subpart B--Meetings
702.50 Purpose and scope.
702.51 Definitions.
702.52 Open meeting requirements.
702.53 Closed meetings.
702.54 Closed meeting procedures.
702.55 Public announcement of meetings.
702.56 Records.
702.57 Administrative review.
Authority: 42 U.S.C. 1975, 1975a, 1975b.
Subpart A--Hearings and Reports
Sec. 702.1 Definitions.
For purposes of this part, the following definitions shall apply
unless otherwise provided:
(a) The Act means the United States Commission on Civil Rights Act
of 1983, 97 Stat. 1301, as amended by the Civil Rights Commission
Amendments Act of 1994, 108 Stat. 4339, codified in 42 U.S.C. 1975
through 1975d.
(b) The Commission means the United States Commission on Civil
Rights or, as provided in Sec. 702.2, to any authorized subcommittee
thereof.
(c) The Chairperson means the Chairperson of the Commission or
authorized subcommittee thereof or to any acting Chairperson of the
Commission or of such subcommittee.
(d) Proceeding means collectively to any public session of the
Commission and executive session held in connection therewith.
(e) Hearing means collectively to a public session of the
Commission and any executive session held in connection therewith,
including the attendance of witnesses or the production of written or
other matters for which subpoenas have been issued.
(f) Witnesses are persons subpoenaed to attend and testify or
produce written or other matter.
(g) The rules in this part means the Rules on Hearings of the
Commission.
(h) Report means statutory reports or portions thereof issued
pursuant to 42 U.S.C. 1975a(c).
(i) Verified answer means an answer the truth of which is
substantiated by oath or affirmation attested to by a notary public or
other person who has legal authority to administer oaths.
Sec. 702.2 Authorization for hearing.
Under 42 U.S.C. 1975a(e)(1) the Commission or, on the authorization
of the Commission, any subcommittee of two or more members, at least
one of whom shall be of each major political party, may, for the
purpose of carrying out the provisions of the Act, hold such hearings
and act at such times and locations as the Commission or such
authorized subcommittee may deem advisable. The holding of hearings by
the Commission or the appointment of a subcommittee to hold hearings
pursuant to this section must be approved by a majority of the
Commission or by a majority of the members present at a meeting at
which at least a quorum of five members is present.
Sec. 702.3 Notice of hearing.
At least 30 days prior to the commencement of any hearing, the
Commission shall publish in the Federal Register notice of the date on
which such hearing is to commence, the location at which it is to be
held, and the subject of the hearing.
Sec. 702.4 Subpoenas.
(a) Subpoenas for the attendance and testimony of witnesses or the
production of written or other matter may be issued by the Commission
over the signature of the Chairperson and may be served by any person
designated by the Chairperson.
(b) A witness compelled to appear before the Commission or required
to produce written or other matter shall be served with a copy of the
rules in this part at the time of service of the subpoena.
(c) The Commission may issue subpoenas for the attendance and
testimony of witnesses or for the production of written or other
matter. Such a subpoena may not require the presence of a witness more
than 100 miles outside the location wherein the witness is found or
resides or is domiciled or transacts business or has appointed an agent
for receipt of service of process.
(d) The Chairperson shall receive and the Commission shall dispose
of requests to subpoena additional witnesses except as otherwise
provided in Sec. 702.6(e).
(e) Requests for subpoenas shall be in writing, supported by a
showing of the general relevance and materiality of the evidence
sought. Witness fees and mileage shall be computed and paid pursuant to
Sec. 702.15.
(f) Subpoenas shall be issued at a reasonably sufficient time in
advance of their scheduled return, in order to give subpoenaed persons
an opportunity to prepare for their appearance and to employ counsel,
should they so desire.
(g) No subpoenaed document or information contained therein shall
be made public unless it is introduced into
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and received as part of the official record of the hearing.
Sec. 702.5 Conduct of proceedings.
(a) The Chairperson shall announce in an opening statement the
subject of the proceedings.
(b) Following the opening statement, the Commission shall first
convene in executive session if one is required pursuant to the
provisions of Sec. 702.6.
(c) The Chairperson, subject to the approval of the Commission,
shall:
(1) Set the order of presentation of evidence and appearance of
witnesses;
(2) Rule on objections and motions;
(3) Administer oaths and affirmations;
(4) Make all rulings with respect to the introduction into or
exclusion from the record of documentary or other evidence;
(5) Regulate the course and decorum of the proceedings and the
conduct of the parties and their counsel to ensure that the proceedings
are conducted in a fair and impartial manner.
(d) Proceedings shall be conducted with reasonable dispatch and due
regard shall be had for the convenience and necessity of witnesses.
(e) The questioning of witnesses shall be conducted only by Members
of the Commission, by authorized Commission staff personnel, or by
counsel to the extent provided in Sec. 702.7.
(f) In addition to persons served with a copy of the rules in this
part pursuant to Secs. 702.4 and 702.6, a copy of the rules in this
part will be made available to all witnesses.
(g) The Chairperson may punish breaches of order and decorum by
censure and exclusion from the proceedings.
Sec. 702.6 Executive session.
(a) If the Commission determines that evidence or testimony at any
hearing may tend to defame, degrade, or incriminate any person, it
shall receive such evidence or testimony or summary of such evidence or
testimony in executive session.
(b) The Commission shall afford any persons defamed, degraded, or
incriminated by such evidence or testimony an opportunity to appear and
be heard in executive session, with a reasonable number of additional
witnesses requested by them, before deciding to use such evidence or
testimony.
(1) Such person shall be served with notice, in writing, at least
10 days prior to the date, time, and location for the appearance of
witnesses at executive session or where service is by mail at least 14
days prior to such date. This notice shall be accompanied by a copy of
the rules in this part and by a brief summary of the information that
the Commission has determined may tend to defame, degrade, or
incriminate such person;
(2) The notice, summary, and rules in this part shall be served by
certified mail or by leaving a copy thereof at the last known residence
or business address of such person; and
(3) The date of service, for purposes of this section, shall be the
day when the material is deposited in the mail or is delivered in
person, whichever is applicable. When service is made by mail, the
return post office receipt shall be proof of service; in all other
cases, the acknowledgment of the party served or the verified return of
the one making service shall be proof of the same.
(c) If a person receiving notice under this section notifies the
Commission within five days of service of such notice or where service
is by mail within eight days of service of such notice that the
scheduled appearance constitutes a hardship, the Commission may, in its
discretion, set a new date or time for such person's appearance at the
executive session.
(d) In the event such persons fail to appear at executive session
at the time and location scheduled under paragraph (b) or (c) of this
section, they shall not be entitled to another opportunity to appear at
executive session, except as provided in Sec. 702.11.
(e) If such persons intend to submit sworn statements of themselves
or others, or if they intend that witnesses appear in their behalf at
executive session, they shall, no later than 48 hours prior to the time
set under paragraph (b) or (c) of this section, submit to the
Commission all such statements and a list of all witnesses. The
Commission will inform such persons whether the number of witnesses
requested is reasonable within the meaning of paragraph (b) of this
section. In addition, the Commission will receive and dispose of
requests from such persons to subpoena other witnesses. Requests for
subpoenas shall be made sufficiently in advance of the scheduled
executive session to afford subpoenaed persons reasonable notice of
their obligation to appear at that session. Subpoenas returnable at
executive session shall be governed by the provisions of Sec. 702.4.
(f) Persons for whom an executive session has been scheduled, and
persons compelled to appear at such session, may be represented by
counsel at such session to the extent provided by Sec. 702.7.
(g) Attendance at executive session shall be limited to
Commissioners; authorized Commission staff personnel; witnesses, and
their counsel at the time scheduled for their appearance; and such
other persons whose presence is requested or consented to by the
Commission.
(h) In the event the Commission determines to release or to use
evidence or testimony that it has determined may tend to defame,
degrade, or incriminate any persons in such a manner as to reveal
publicly their identity, such evidence or testimony, prior to such
public release or use, will be presented at a public session, and the
Commission will afford them an opportunity to appear as voluntary
witnesses or to file a sworn statement in their own behalf and to
submit brief and pertinent sworn statements of others.
Sec. 702.7 Counsel.
(a) Persons compelled to appear in person before the Commission and
any witness appearing at a public session of the Commission will be
accorded the right to be accompanied and advised by counsel, who will
have the right to subject their clients to reasonable examination, make
objections on the record, and briefly argue the basis for such
objections.
(b) For the purpose of this section, counsel shall mean an attorney
at law admitted to practice before the Supreme Court of the United
States or the highest court of any State or Territory of the United
States.
(c) Failure of any persons to obtain counsel shall not excuse them
from attendance in response to a subpoena, nor shall any persons be
excused in the event their counsel is excluded from the proceeding
pursuant to Sec. 702.6(g). In the latter case, however, such persons
shall be afforded a reasonable time to obtain other counsel, said time
to be determined by the Commission.
Sec. 702.8 Evidence at Commission proceedings.
(a) The rules of evidence prevailing in courts of law or equity
shall not control proceedings of the Commission.
(b) Where a witness testifying at a public session of a hearing or
a session for return of subpoenaed documents offers the sworn
statements of other persons, such statements, in the discretion of the
Commission, may be included in the record, provided they are received
by the Commission 24 hours in advance of the witness' appearance.
(c) The prepared statement of a witness testifying at a public
session of a hearing, in the discretion of the Commission, may be
placed into the record, provided that such statement is
[[Page 17532]]
received by the Commission 24 hours in advance of the witness'
appearance.
(d) In the discretion of the Commission, evidence may be included
in the record after the close of a public session of a hearing provided
the Commission determines that such evidence does not tend to defame,
degrade, or incriminate any person.
(e) The Commission will determine the pertinence of testimony and
evidence adduced at its proceedings and may refuse to include in the
record of a proceeding or may strike from the record any evidence it
considers to be cumulative, immaterial, or not pertinent.
Sec. 702.9 Cross-examination at public session.
If the Commission determines that oral testimony of a witness at a
public session tends to defame, degrade, or incriminate any person,
such person, or through counsel, shall be permitted to submit questions
to the Commission in writing, which, in the discretion of the
Commission, may be put to such witness by the Chairperson or by
authorized Commission staff personnel.
Sec. 702.10 Voluntary witnesses at public session of a hearing.
A person who has not been subpoenaed and who has not been afforded
an opportunity to appear pursuant to Sec. 702.6 may be permitted, in
the discretion of the Commission, to make an oral or written statement
at a public session of a hearing. Such person may be questioned to the
same extent and in the same manner as other witnesses before the
Commission.
Sec. 702.11 Special executive session.
If, during the course of a public session, evidence is submitted
that was not previously presented at executive session and that the
Commission determines may defame, degrade, or incriminate any person,
the provisions of Sec. 702.6 shall apply and such extensions, recesses
or continuances of the public session shall be ordered by the
Commission, as it deems necessary. The time and notice requirements of
Sec. 702.6 may be modified by the Commission provided reasonable notice
of a scheduled executive session is afforded such person; the
Commission may, in its discretion, strike such evidence from the
record, in which case the provisions of Sec. 702.6 shall not apply.
Sec. 702.12 Contempt of the Commission.
Proceedings and process of the Commission are governed by 42 U.S.C.
1975a(e)(2), which provides that in case of contumacy or refusal to
obey a subpoena, the Attorney General may in a Federal court of
appropriate jurisdiction obtain an appropriate order to enforce the
subpoena.
Sec. 702.13 Intimidation of witnesses.
Witnesses at Commission proceedings are protected by the provisions
of 18 U.S.C. 1505, which provide that whoever, with intent to avoid,
evade, prevent, or obstruct compliance, in whole or in part, with any
civil investigative demand duly and properly made under the Antitrust
Civil Process Act, willfully withholds, misrepresents, removes from any
place, conceals, covers up, destroys, mutilates, alters, or by other
means falsifies any documentary material, answers to written
interrogatories, or oral testimony, which is the subject of such
demand; or attempts to do so or solicits another to do so; or whoever
corruptly, or by threats or force, or by any threatening letter or
communication influences, obstructs, or impedes or endeavors to
influence, obstruct, or impede the due and proper administration of the
law under which any pending proceeding is being had before any
department or agency of the United States, or the due and proper
exercise of the power of inquiry under which any inquiry or
investigation is being had by either House, or any committee of either
House or any joint committee of the Congress shall be fined under this
title or imprisoned not more than five years, or both.
Sec. 702.14 Transcript of Commission proceedings.
(a) An accurate transcript shall be made of the testimony of all
witnesses at all proceedings of the Commission. Transcripts shall be
recorded solely by the official reporter or by any other person or
means designated by the Commission.
(b) Every person who submits data or evidence shall be entitled to
retain or, on payment of lawfully prescribed costs, procure a copy or
transcript thereof, except that witnesses in a hearing held in
executive session may be limited, for good cause, to inspection of the
official transcript of their testimony. Transcript copies of public
sessions may be obtained by the public upon the payment of the cost
thereof.
(c) Persons who have presented testimony at a proceeding may ask
within 60 days after the close of the proceeding to correct errors in
the transcript of their testimony. Such requests shall be granted only
to make the transcript conform to their testimony as presented at the
proceeding.
Sec. 702.15 Witness fees.
A witness attending any session of the Commission shall be paid the
same fees and mileage that are paid witnesses in the courts of the
United States. Mileage payments must be tendered at the witness'
request upon service of a subpoena issued on behalf of the Commission
or any subcommittee thereof.
Sec. 702.16 Attendance of news media at public sessions.
Reasonable access for coverage of public sessions shall be provided
to the various communications media, including newspapers, magazines,
radio, newsreels, and television, subject to the physical limitations
of the room in which the session is held and consideration of the
physical comfort of Commission members, staff, and witnesses. However,
no witnesses shall be televised, filmed, or photographed during the
session nor shall the testimony of any witness be broadcast or recorded
for broadcasting if the witness objects.
Sec. 702.17 Communications with respect to Commission proceedings.
During any proceeding held outside Washington, DC, communications
to the Commission with respect to such proceeding must be made to the
Chairperson or authorized Commission staff personnel in attendance. All
requests for subpoenas returnable at a hearing, requests for appearance
of witnesses at a hearing, and statements or other documents for
inclusion in the record of a proceeding, required to be submitted in
advance, must be submitted to the Chairperson, or such authorized
person as the Chairperson may appoint, at an office located in the
community where such hearing or proceeding is scheduled to be held. The
location of such office will be set forth in all subpoenas issued under
the rules in this part and in all notices prepared pursuant to
Sec. 706.2.
Sec. 702.18 Commission reports.
(a) If a Commission report tends to defame, degrade, or incriminate
any person, the report or relevant portions thereof shall be delivered
to such person at least 30 days before the report is made public to
allow such person to make a timely verified answer to the report. The
Commission shall afford such person an opportunity to file with the
Commission a verified answer to the report or relevant portions thereof
not later than 20 days after service as provided by the regulations in
this part.
(1) Such person shall be served with a copy of the report or
relevant portions
[[Page 17533]]
thereof, with an indication of the section(s) that the Commission has
determined tend to defame, degrade, or incriminate such person, a copy
of the Act, and a copy of the regulations in this part.
(2) The report or relevant portions thereof, the Act, and
regulations in this part shall be served by certified mail, return
receipt requested, or by leaving a copy thereof at the last known
residence or business address or the agent of such person.
(3) The date of service for the purposes of this section shall be
the day the material is delivered either by the post office or
otherwise, to such person or the agent of such person or at the last
known residence or business address of such person. The acknowledgement
of the party served or the verified return of the one making service
shall be proof of service except that when service is made by mail, the
return post office receipt shall also constitute proof of same.
(b) If a person receiving a Commission report or relevant portions
thereof under this part requests an extension of time from the
Commission within seven days of service of such report, the Commission
may, upon a showing of good cause, grant the person additional time
within which to file a verified answer.
(c) A verified answer shall plainly and concisely state the facts
and law constituting the person's reply or defense to the charges or
allegations contained in the report.
(d) Such verified answer shall be published as an appendix to the
report; however, the Commission may except from the answer such matter
as it determines to be scandalous, prejudicial, or unnecessary.
Subpart B--Meetings
Sec. 702.50 Purpose and scope.
This subpart contains the regulations of the United States
Commission on Civil Rights implementing sections (a)-(f) of 5 U.S.C.
552b, the ``Government in the Sunshine Act.'' They are adopted to
further the principle that the public is entitled to the fullest
practicable information regarding the decision-making processes of the
Commission. They open meetings of the Commission to public observation
except where the rights of individuals are involved or the ability of
the Commission to carry out its responsibilities requires
confidentiality.
Sec. 702.51 Definitions.
(a) Commission means the United States Commission on Civil Rights
and any subcommittee of the Commission authorized under the United
States Commission on Civil Rights Act of 1983, 97 Stat. 1301, as
amended by the Civil Rights Commission Amendments Act of 1994, 108
Stat. 4339. The statutes are codified in 42 U.S.C. 1975 through 1975d.
(b) Commissioner means a member of the U.S. Commission on Civil
Rights appointed by the President, the President pro tempore of the
Senate, or the Speaker of the House of Representatives, as provided in
42 U.S.C. 1975.
(c) Meeting means the deliberations of at least the number of
Commissioners required to take action on behalf of the Commission where
such deliberations determine or result in the joint conduct or
disposition of official Commission business.
(1) The number of Commissioners required to take action on behalf
of the Commission is four, except that such number is two when the
Commissioners are a subcommittee of the Commission authorized under 42
U.S.C. 1975a(e)(1).
(2) Deliberations among Commissioners regarding the setting of the
time, location, or subject matter of a meeting, whether the meeting is
open or closed, whether to withhold information discussed at a closed
meeting, and any other deliberations required or permitted by 5 U.S.C.
552b (d) and (e) and Sec. 702.54 and Sec. 702.55 of this subpart, are
not meetings for the purposes of this subpart.
(3) The consideration by Commissioners of Commission business that
is not discussed through conference calls or a series of two party
calls by the number of Commissioners required to take action on behalf
of the Commission is not a meeting for the purposes of this subpart.
(d) Public announcement or publicly announce means the use of
reasonable methods, such as the posting on the Commission's website or
public notice bulletin boards and the issuing of press releases, to
communicate information to the public regarding Commission meetings.
(e) Staff Director means the Staff Director of the Commission.
Sec. 702.52 Open meeting requirements.
(a) Every portion of every Commission meeting shall be open to
public observation, except as provided in Sec. 702.53 of this subpart.
Commissioners shall not jointly conduct or dispose of agency business
other than in accordance with this subpart.
(b) This subpart gives the public the right to attend and observe
Commission open meetings; it confers no right to participate in any way
in such meetings.
(c) The Staff Director shall be responsible for making physical
arrangements for Commission open meetings that provide ample space,
sufficient visibility, and adequate acoustics for public observation.
(d) The presiding Commissioner at an open meeting may exclude
persons from a meeting and shall take all steps necessary to preserve
order and decorum.
Sec. 702.53 Closed meetings.
(a) The Commission may close a portion or portions of a meeting and
withhold information pertaining to such meeting when it determines that
the public interest does not require otherwise and when such portion or
portions of a meeting or the disclosure of such information is likely
to:
(1) Disclose matters that are:
(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interests of national defense
or foreign policy and
(ii) In fact properly classified pursuant to such Executive Order;
(2) Disclose information relating solely to the internal personnel
rules and practices of the Commission;
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552b), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Disclose trade secrets and commercial or financial information
obtained from a person and is privileged or confidential;
(5) Involve accusing any person of a crime or formally censuring
any person;
(6) Disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose investigatory records compiled for law enforcement
purposes, or information that if written would be contained in such
records, but only to the extent that the production of such records or
information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source and, in the
case of a record received by the Commission
[[Page 17534]]
from a criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished only by
the confidential source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(8) Disclose information received by the Commission and contained
in or related to examination, operating, or condition reports prepared
by, on behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions;
(9) Disclose information the premature disclosure of that would:
(i) In the case of information received by the Commission from an
agency that regulates currencies, securities, commodities, or financial
institutions, be likely to:
(A) Lead to significant financial speculation in currencies,
securities, or commodities, or
(B) Significantly endanger the stability of any financial
institution; or
(ii) Be likely to significantly frustrate implementation of a
proposed action, except that this paragraph shall not apply in any
instance where the Commission has already disclosed to the public the
content or nature of its proposed action or where the Commission is
required by law to make such disclosure on its own initiative prior to
taking final agency action on such proposal; or
(10) Specifically concern the Commission's issuance of a subpoena
or the Commission's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration.
(b) [Reserved]
Sec. 702.54 Closed meeting procedures.
(a) A meeting or portion thereof will be closed, and information
pertaining to a closed meeting will be withheld, only after four
Commissioners when no Commissioner's position is vacant, three
Commissioners when there is a vacancy, or two Commissioners on a
subcommittee authorized under 42 U.S.C. 1975a(e)(1), vote to take such
action.
(b)(1) A separate vote shall be taken with respect to each meeting,
a portion or portions of which is proposed to be closed to the public
under Sec. 702.53, and with respect to any information to be withheld
under Sec. 702.53.
(2) A single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed to
the public, or with respect to any information concerning such series
of meetings, so long as:
(i) Each meeting in such series involves the same particular
matters, and
(ii) Is scheduled to be held no more than thirty (30) days after
the initial meeting in such series.
(c) The Commission will vote on the question of closing a meeting
or portion thereof and withholding information under paragraph (b) of
this section if one Commissioner calls for such a vote. The vote of
each Commissioner participating in a vote to close a meeting shall be
recorded and no proxies shall be allowed.
(1) If such vote is against closing a meeting and withholding
information, the Staff Director, within one working day of such vote,
shall make publicly available by putting in a place easily accessible
to the public a written copy of such vote reflecting the vote of each
Commissioner.
(2) If such vote is for closing a meeting and withholding
information, the Staff Director, within one working day of such vote,
shall make publicly available by putting in a place easily accessible
to the public a written copy of such vote reflecting the vote of each
Commissioner, and:
(i) A full written explanation of the decision to close the meeting
or portions thereof (such explanation will be as detailed as possible
without revealing the exempt information);
(ii) A list of all persons other than staff members expected to
attend the meeting and their affiliation (the identity of persons
expected to attend such meeting will be withheld only if revealing
their identity would reveal the exempt information that is the subject
of the closed meeting).
(d) Prior to any vote to close a meeting or portion thereof under
paragraph (c) of this section, the Commissioners shall obtain from the
General Counsel an opinion as to whether the closing of a meeting or
portions thereof is in accordance with paragraphs (a)(1) through (10)
of Sec. 702.53.
(1) For every meeting closed in accordance with paragraphs (a)(1)
through (10) of Sec. 702.53, the General Counsel shall publicly certify
in writing that, in his or her opinion, the meeting may be closed to
the public and shall cite each relevant exemptive provision.
(2) A copy of certification by the General Counsel together with a
statement from the presiding officer of the closed meeting setting
forth the time and location of the meeting and the persons present,
shall be retained by the Commission.
(e) For all meetings closed to the public, the Commission shall
maintain a complete verbatim transcript or electronic recording
adequate to record fully the proceedings of each meeting or portion of
a meeting, which sets forth the time and location of the meeting and
the persons present. In the case of a meeting or a portion of a meeting
closed to the public pursuant to paragraphs (a)(8), (9)(i)(A), or (10)
of Sec. 702.53, the Commission may retain a set of minutes and such
minutes shall fully and clearly describe all matters discussed and
provide a full and accurate summary of any actions taken, and the
reasons therefor, including a description of each of the views
expressed on any item and the record of any roll call vote (reflecting
the vote of each member on the question). All documents considered in
connection with any action shall be identified in such minutes.
(f) Any person whose interests may be directly affected by a
portion of a meeting may request that such portion be closed to the
public under Sec. 702.53 or that it be open to the public if the
Commission has voted to close the meeting pursuant to
Sec. 702.53(a)(5), (6) or (7). The Commission will vote on the request
if one Commissioner asks that a vote be taken. Such requests shall be
made to the Staff Director within a reasonable amount of time after the
meeting or vote in question is publicly announced.
Sec. 702.55 Public announcement of meetings.
(a) Agenda. The Staff Director shall set as early as possible but
in any event at least eight calendar days before a meeting, the time,
location, and subject matter for the meeting. Agenda items will be
identified in adequate detail to inform the general public of the
specific business to be discussed at the meeting.
(b) Notice. The Staff Director, at least eight calendar days before
a meeting, shall make public announcement of:
(1) The time of the meeting;
(2) Its location;
(3) Its subject matter;
(4) Whether it is open or closed to the public; and
(5) The name and phone number of a Commission staff member who will
respond to requests for information about the meeting.
(c) Changes. (1) The time of day or location of a meeting may be
changed following the public announcement required by paragraph (b) of
this section, if the Staff Director publicly announces such change at
the earliest practicable time subsequent to the decision to change the
time of day or location of the meeting.
[[Page 17535]]
(2) The date of a meeting may be changed following the public
announcement required by paragraph (b) of this section, or a meeting
may be scheduled less than eight calendar days in advance, if:
(i) Four Commissioners when no Commissioner's position is vacant,
three Commissioners when there is such a vacancy, or two Commissioners
on a subcommittee authorized under 42 U.S.C. 1975a(d), determine by
recorded vote that Commission business requires such a meeting at an
earlier date; and
(ii) The Staff Director, at the earliest practicable time following
such vote, makes public announcement of the time, location, and subject
matter of such meeting and whether it is open or closed to the public.
(3) The subject matter of a meeting or the determination to open or
close a meeting or a portion of a meeting to the public may be changed
following the public announcement required by paragraph (b) of this
section if:
(i) Four Commissioners when no Commissioner's position is vacant,
three Commissioners when there is such a vacancy, or two Commissioners
on a subcommittee authorized under 42 U.S.C. 1975a(e)(1) determine by
recorded vote that Commission business so requires; and
(ii) The Staff Director publicly announces such change and the vote
of each Commissioner upon such change at the earliest practicable time
subsequent to the decision to make such change.
(d)(1) Federal Register. Immediately following all public
announcements required by paragraphs (b) and (c) of this section,
notice of the time, location, and subject matter of a meeting, whether
the meeting is open or closed to the public, any change in one of the
preceding, and the name and phone number of the official designated by
the Commission to respond to requests for information about meeting,
shall be submitted for publication in the Federal Register.
(2) Notice of a meeting will be published in the Federal Register
even after the meeting that is the subject of the notice has occurred
in order to provide a public record of all Commission meetings.
Sec. 702.56 Records.
(a) The Commission shall promptly make available to the public in
an easily accessible place at Commission headquarters the following
materials:
(1) A copy of the certification by the General Counsel required by
Sec. 702.54(e)(1).
(2) A copy of all recorded votes required to be taken by these
rules.
(3) A copy of all announcements published in the Federal Register
pursuant to this subpart.
(4) Transcripts, electronic recordings, and minutes of closed
meetings determined not to contain items of discussion or information
that may be withheld under Sec. 702.53. Copies of such material will be
furnished to any person at the actual cost of transcription or
duplication.
(b)(1) Requests to review or obtain copies of records compiled
under this Act, other than transcripts, electronic recordings, or
minutes of a closed meeting, will be processed under the Freedom of
Information Act and, where applicable, the Privacy Act regulations of
the Commission (parts 704 and 705, respectively, of this title).
Nothing in this subpart expands or limits the present rights of any
person under the rules in this part with respect to such requests.
(2) Requests to review or obtain copies of transcripts, electronic
recordings, or minutes of a closed meeting maintained under
Sec. 702.54(e) and not released under paragraph (a)(4) of this section
shall be directed to the Staff Director who shall respond to such
requests within ten (10) working days.
(c) The Commission shall maintain a complete verbatim copy of the
transcript, a complete copy of minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the
public, for a period of two years after such meeting or until one year
after the conclusion of any agency proceeding with respect to which the
meeting or portion was held, whichever occurs later.
Sec. 702.57 Administrative review.
Any person who believes a Commission action governed by this
subpart to be contrary to the provisions of this subpart shall file an
objection in writing with the Staff Director specifying the violation
and suggesting corrective action. Whenever possible, the Staff Director
shall respond within ten (10) working days of the receipt of such
objections.
PART 703--OPERATIONS AND FUNCTIONS OF STATE ADVISORY COMMITTEES
Sec.
703.1 Name and establishment.
703.2 Functions.
703.3 Scope of subject matter.
703.4 Advisory Committee Management Officer.
703.5 Membership.
703.6 Officers.
703.7 Subcommittees--Special assignments.
703.8 Meetings.
703.9 Reimbursement of members.
703.10 Public availability of documents and other materials.
Sec. 703.1 Name and establishment.
Pursuant to 42 U.S.C. 1975a(d), the Commission has chartered and
maintains Advisory Committees to the Commission in each State, and the
District of Columbia. All relevant provisions of the Federal Advisory
Committee Act of 1972 (Public Law 92-463, as amended) are applicable to
the management, membership, and operations of such committees and
subcommittees thereof.
Sec. 703.2 Functions.
Under the Commission's charter each Advisory Committee shall:
(a) Advise the Commission in writing of any knowledge or
information it has of any alleged deprivation of the right to vote and
to have the vote counted by reason of color, race, religion, sex, age,
disability, or national origin, or that citizens are being accorded or
denied the right to vote in Federal elections as a result of patterns
or practices of fraud or discrimination;
(b) Advise the Commission concerning matters related to
discrimination or a denial of equal protection of the laws under the
Constitution and the effect of the laws and policies of the Federal
Government with respect to equal protection of the laws;
(c) Advise the Commission upon matters of mutual concern in the
preparation of reports of the Commission to the President and the
Congress;
(d) Receive reports, suggestions, and recommendations from
individuals, public and private organizations, and public officials
upon matters pertinent to inquiries conducted by the Advisory
Committee;
(e) Initiate and forward advice and recommendations to the
Commission upon matters that the Advisory Committee has studied;
(f) Assist the Commission in the exercise of its clearinghouse
function and with respect to other matters that the Advisory Committee
has studied;
(g) Attend, as observers, any open hearing or conference that the
Commission may hold within the State.
Sec. 703.3 Scope of subject matter.
The scope of the subject matter to be dealt with by Advisory
Committees shall be those subjects of inquiry or study with which the
Commission itself is authorized to investigate, pursuant to
[[Page 17536]]
42 U.S.C. 1975(a). Each Advisory Committee shall confine its studies to
the State covered by its charter. It may, however, subject to the
requirements of Sec. 703.4, undertake to study, within the limitations
of the Act, subjects other than those chosen by the Commission for
study.
Sec. 703.4 Advisory Committee Management Officer.
(a) The Chief of the Regional Programs Coordination Unit is
designated as Advisory Committee Management Officer pursuant to the
requirements of the Federal Advisory Committee Act of 1972 (Public Law
92-463, as amended).
(b) Such Officer shall carry out the functions specified in section
8(b) of the Federal Advisory Committee Act.
(c) Such Officer shall, for each Advisory Committee, appoint a
Commission employee to provide services to the Committee and to be
responsible for supervising the activity of the Committee pursuant to
section 8 of the Federal Advisory Committee Act. The employee is
subject to the supervision of the Regional Director of the Commission
responsible for the State within which said Committee is chartered.
Sec. 703.5 Membership.
(a) Subject to exceptions made from time to time by the Commission
to fit special circumstances, each Advisory Committee shall consist of
at least 11 members appointed by the Commission. Members of the
Advisory Committees shall serve for a fixed term to be set by the
Commission upon the appointment of a member subject to the duration of
Advisory Committees as prescribed by the charter, provided that members
of the Advisory Committee may, at any time, be removed by the
Commission.
(b) Membership on the Advisory Committee shall be reflective of the
different ethnic, racial, and religious communities within each State
and the membership shall also be representative with respect to sex,
political affiliation, age, and disability status.
Sec. 703.6 Officers.
(a) The officers of each Advisory Committee shall be a Chairperson,
Vice Chairperson, and such other officers as may be deemed advisable.
(b) The Chairperson shall be appointed by the Commission.
(c) The Vice Chairperson and other officers shall be elected by the
majority vote of the full membership of the Committee.
(d) The Chairperson, or in his or her absence the Vice Chairperson,
under the direction of the Commission staff member appointed pursuant
to Sec. 703.4(b) shall:
(1) Call meetings of the Committee;
(2) Preside over meetings of the Committee;
(3) Appoint all subcommittees of the Committee;
(4) Certify for accuracy the minutes of Committee meetings prepared
by the assigned Commission staff member; and
(5) Perform such other functions as the Committee may authorize or
the Commission may request.
Sec. 703.7 Subcommittees--Special assignments.
Subject to the approval of the designated Commission employee, an
Advisory Committee may:
(a) Establish subcommittees, composed of members of the Committee,
to study and report upon matters under consideration and authorize such
subcommittees to take specific action within the competence of the
Committee; and
(b) Designate individual members of the Committee to perform
special projects involving research or study on matters under
consideration by the Committee.
Sec. 703.8 Meetings.
(a) Meetings of a Committee shall be convened by the designated
Commission employee or subject to his or her approval by the
Chairperson or a majority of the Advisory Committee members. The agenda
for such Committee or subcommittee meeting shall be approved by the
designated Commission employee.
(b) A quorum shall consist of one-half or more of the members of
the Committee, or five members, whichever is the lesser, except that
with respect to the conduct of fact-finding meetings as authorized in
paragraph (e) of this section, a quorum shall consist of three members.
(c) Notice of all meetings of an Advisory Committee shall be given
to the public.
(1) Notice shall be published in the Federal Register at least 15
days prior to the meetings, provided that in emergencies such
requirement may be waived.
(2) Notice of meetings shall be provided to the public by press
releases and other appropriate means.
(3) Each notice shall contain a statement of the purpose of the
meeting, a summary of the agenda, and the date, time, and location of
such meeting.
(d) Except as provided for in paragraph (d)(1) of this section, all
meetings of Advisory Committees or subcommittees shall be open to the
public.
(1) The Chief of the Regional Programs Coordination Unit may
authorize a Committee or subcommittee to hold a meeting closed to the
public if he or she determines that the closing of such meeting is in
the public interest provided that prior to authorizing the holding of a
closed meeting the Chief of the Regional Programs Coordination Unit has
requested and received the opinion of the General Counsel with respect
to whether the meeting may be closed under one or more of the
exemptions provided in the Government in the Sunshine Act, 5 U.S.C.
552b(c).
(2) In the event that any meeting or portion thereof is closed to
the public, the Committee shall publish, at least annually, in summary
form a report of the activities conducted in meetings not open to the
public.
(e) Advisory Committees and subcommittees may hold fact-finding
meetings for the purpose of inviting the attendance of and soliciting
information and views from government officials and private persons
respecting subject matters within the jurisdiction of the Committee or
subcommittee.
(f) Any person may submit a written statement at any business or
fact-finding meeting of an Advisory Committee or subcommittee.
(g) At the discretion of the designated Commission employee or his
or her designee, any person may make an oral presentation at any
business or fact-finding meeting, provided that such presentation will
not defame, degrade, or incriminate any other person as prohibited by
the Act.
Sec. 703.9 Reimbursement of members.
(a) Advisory Committee members may be reimbursed by the Commission
by a per diem subsistence allowance and for travel expenses at rates
not to exceed those prescribed by Congress for Government employees,
for the following activities only:
(1) Attendance at meetings, as provided for in Sec. 703.8; and
(2) Any activity specifically requested and authorized by the
Commission to be reimbursed.
(b) Members will be reimbursed for the expense of travel by private
automobile on a mileage basis only to the extent such expense is no
more than that of suitable public transportation for the same trip
unless special circumstances justify the additional expense of travel
by private automobile.
Sec. 703.10 Public availability of documents and other materials.
Part 704 of this chapter shall be applicable to reports,
publications, and other materials prepared by or for Advisory
Committees.
[[Page 17537]]
PART 704--INFORMATION DISCLOSURE AND COMMUNICATIONS
Sec.
704.1 Material available pursuant to 5 U.S.C. 552.
704.2 Complaints.
704.3 Other requests and communications.
704.4 Restrictions on disclosure of information.
Authority: 5 U.S.C. 552, 552a, 552b.
Sec. 704.1 Material available pursuant to 5 U.S.C. 552.
(a) Purpose, scope, and definitions. (1) This section contains the
regulations of the United States Commission on Civil Rights
implementing the Freedom of Information Act, 5 U.S.C. 552. These
regulations inform the public with respect to where and how records and
information may be obtained from the Commission. Officers and employees
of the Commission shall make Commission records available under 5
U.S.C. 552 only as prescribed in this section. Nothing contained in
this section, however, shall be construed to prohibit officers or
employees of the Commission from routinely furnishing information or
records that are customarily furnished in the regular performance of
their duties.
(2) For the purposes of these regulations the following terms are
defined as indicated:
Commission means the United States Commission on Civil Rights;
FOIA means Freedom of Information Act, 5 U.S.C. 552;
FOIA Request means a request in writing, for records pursuant to 5
U.S.C. 552, which meets the requirements of paragraph (d) of this
section. These regulations do not apply to telephone or other oral
communications or requests not complying with paragraph (d)(1)(i) of
this section.
Office of the General Counsel means the General Counsel of the
Commission or his or her designee;
Staff Director means the Staff Director of the Commission.
(b) General policy. In order to foster the maximum participation of
an informed public in the affairs of Government, the Commission will
make the fullest possible disclosure of its identifiable records and
information consistent with such considerations as those provided in
the exemptions of 5 U.S.C. 552 that are set forth in paragraph (f) of
this section.
(c) Material maintained on file pursuant to 5 U.S.C. 552(a)(2).
Material maintained on file pursuant to 5 U.S.C. 552(a)(2) shall be
available for inspection during regular business hours at the offices
of the Commission at 624 9th Street, NW., Washington, DC 20425. Copies
of such material shall be available upon written request, specifying
the material desired, addressed to the Office of the General Counsel,
U.S. Commission on Civil Rights, 624 9th Street, NW., Washington, DC
20425, and upon the payment of fees, if any, determined in accordance
with paragraph (e) of this section.
(1) Current index. Included in the material available pursuant to 5
U.S.C. 552(a)(2) shall be an index of:
(i) All other material maintained on file pursuant to 5 U.S.C.
552(a)(2); and
(ii) All material published by the Commission in the Federal
Register and currently in effect.
(2) Deletion of identifying details. Wherever deletions from
material maintained on file pursuant to 5 U.S.C. 552(a)(2) are required
in order to prevent a clearly unwarranted invasion of privacy,
justification for the deletions shall be placed as a preamble to
documents from which such deletions are made.
(d) Materials available pursuant to 5 U.S.C. 552(a)(3)--(1) Request
procedures. (i) Each request for records pursuant to this section shall
be in writing over the signature of the requester, addressed to the
Office of the General Counsel, U.S. Commission on Civil Rights, 624 9th
Street, NW., Washington, DC 20425 and:
(A) Shall clearly and prominently be identified as a request for
information under the Freedom of Information Act (if submitted by mail
or otherwise submitted in an envelope or other cover, be clearly and
prominently identified as such on the envelope or other cover--e.g.,
FOIA); and
(B) Shall contain a sufficiently specific description of the record
requested with respect to names, dates, and subject matter to permit
such record to be identified and located; and
(C) Shall contain a statement that whatever costs involved pursuant
to paragraph (e) of this section will be paid, that such costs will be
paid up to a specified amount, or that waiver or reduction of fees is
requested pursuant to paragraph (e) of this section.
(ii) If the information submitted pursuant to paragraph
(d)(1)(i)(B) of this section is insufficient to enable identification
and location of the records, the General Counsel shall as soon as
possible notify the requester in writing indicating the additional
information needed. Every reasonable effort shall be made to assist in
the identification and location of the record sought. Time requirements
under the regulations in this part are tolled from the date
notification under this section is sent to the requester until an
answer in writing to such notification is received from requester.
(iii) A request for records that is not in writing or does not
comply with paragraph (d)(1)(i) of this section is not a request under
the Freedom of Information Act and the 10 day time limit for agency
response under the Act will not be deemed applicable.
(iv) Except as otherwise provided in this section, the General
Counsel shall immediately notify the requester of noncompliance with
paragraphs (d)(1)(i)(C) and (e) of this section.
(2) Agency determinations. (i) Responses to all requests pursuant
to 5 U.S.C. 552(a)(3) shall be made by the General Counsel in writing
to the requester within 10 working days after receipt by the General
Counsel of such request except as specifically exempted under
paragraphs (d)(1) (ii), (iii) and (iv) of this section, and shall
state:
(A) Whether and to what extent the Commission will comply with the
request;
(B) The probable availability of the records or that the records
may be furnished with deletions or that records will be denied as
exempt pursuant to 5 U.S.C. 552(b)(1) through (9);
(C) The estimated costs, determined in accordance with paragraph
(e) of this section, including waiver or reduction of fee as
appropriate and any deposit or prepayment requirement; and
(D) When records are to be provided, the time and place at which
records or copies will be available determined in accordance with the
terms of the request and with paragraph (d)(3) of this section. Such
response shall be termed a determination notice.
(ii) In the case of denial of requests in whole or part the
determination notice shall state:
(A) Specifically what records are being denied;
(B) The reasons for such denials;
(C) The specific statutory exemption(s) upon which such denial is
based;
(D) The names and titles or positions of every person responsible
for the denial of such request; and
(E) The right of appeal to the Staff Director of the Commission and
procedures for such appeal as provided under paragraph (g) of this
section.
(iii) Each request received by the Office of the General Counsel
for records pursuant to the regulations in this part shall be recorded
immediately. The record of each request shall be kept current, stating
the date and time the request is received, the name and address of the
person making the request, any amendments to such
[[Page 17538]]
request, the nature of the records requested, the action taken
regarding the request, including waiver of fees, extensions of time
pursuant to 5 U.S.C. 552(a)(6)(B), and appeals. The date and subject of
any letters pursuant to paragraph (d)(1) of this section or agency
determinations pursuant to paragraph (d)(2)(i) of this section, the
date(s) any records are subsequently furnished, and the payment
requested and received.
(3) Time limitations. (i) Time limitations for agency response to a
request for records established by the regulations in this part shall
begin when the request is recorded pursuant to paragraph (d)(2)(iii) of
this section. A written request pursuant to FOIA but sent to an office
of the Commission other than the Office of the General Counsel shall be
date stamped, initialed, and redirected immediately to the Office of
the General Counsel. The required period for agency determination shall
begin when it is received by the Office of the General Counsel in
accordance with paragraph (d)(2)(iii) of this section.
(ii) In unusual circumstances, pursuant to 5 U.S.C. 552(a)(6)(B),
the General Counsel may, in the case of initial determinations under
the regulations in this part, extend the 10 working day time limit in
which the agency is required to make its determination notification.
Such extension shall be communicated in writing to the requesting party
setting forth with particularity the reasons for such extension and the
date on which a determination is expected to be transmitted. Such
extensions may not exceed 10 working days for any request and may only
be used to the extent necessary to properly process a particular
request. Such extension is permissible only where there is a
demonstrated need:
(A) To search for and collect the requested records from field
facilities or other establishments that are separate from the Office of
the General Counsel;
(B) To search for, collect, and appropriately examine a voluminous
amount of separate and distinct records that are demanded in a single
request; or
(C) For consultation, which shall be conducted with all practicable
speed, with another agency having a substantial interest in the
determination of the request or among two or more components of the
same agency having substantial subject matter interest therein.
(e) Fees-- (1) Definitions. The following definitions apply to the
terms when used in this section:
(i) Direct costs means those expenditures that the Commission
actually incurs in searching for and duplicating (and in the case of
commercial requesters, reviewing) documents to respond to a request
made under paragraph (d) of this section. Direct costs include, for
example, the salary of the employee(s) performing the work (the basic
rate of pay for the employee(s) plus 16 percent of that rate to cover
benefits) and the cost of operating duplicating machinery. Not included
in direct costs are overhead expenses such as costs of space and
heating or lighting the facility in which the records are stored.
(ii) Search means all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification within documents. However, an entire document will be
duplicated if this would prove to be a more efficient and less
expensive method of complying with a request than a more detailed
manner of searching. Search is distinguished from review of material in
order to determine whether the material is exempt from disclosure.
(iii) Duplication means the process of making a copy of a document
necessary to respond to a request for disclosure of records. Such
copies can take the form of paper or machine readable documentation
(e.g., magnetic tape or disk), among others.
(iv) Review means the process of examining documents located in
response to an information request to determine whether any portion of
any document is permitted to be withheld. It also includes processing
any documents for disclosure, e.g., doing all that is necessary to
prepare them for release. Review does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(v) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. In deciding whether a requester
properly belongs in this category, the General Counsel will determine
the use to which a requester will put the documents requested. When the
General Counsel has reasonable cause to doubt such intended use, or
where such use is not clear from the request itself, the General
Counsel will seek additional clarification before assigning the request
to a specific category.
(vi) Educational institution means a school, an institution of
higher education, an institution of professional education, or an
institution of vocational education that operates a program or programs
of scholarly research.
(vii) Noncommercial scientific institution means an institution
that is not operated on a commercial basis and 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.
(viii) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that
is about current events or that would be of current interest to the
public. News media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only in those instances when they can qualify as disseminators of news)
who make their products available for purchase or subscription by the
general public. Freelance journalists may be regarded as working for a
news organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually
employed by it.
(2) Costs to be included in fees. The direct costs included in fees
will vary according to the following categories of requests:
(i) Commercial use requests. Fees will include the Commission's
direct costs for searching for, reviewing, and duplicating the
requested records.
(ii) Educational and noncommercial scientific institution requests.
The Commission will provide documents to requesters in this category
for the cost of duplication alone, excluding charges for the first 100
pages. To be eligible for inclusion in this category, requesters must
show that the request is being made under the auspices of a qualifying
institution and that the records are sought in furtherance of scholarly
(if the request is from an educational institution) or scientific (if
the request is from a noncommercial scientific institution) research.
(iii) Requests from representatives of the news media. The
Commission will provide documents to requesters in this category for
the cost of duplication alone, excluding charges for the first 100
pages. To be eligible for inclusion in this category a requester must
meet the criteria in paragraph (e)(1)(viii) of this section.
(iv) All other requests. The Commission will charge requesters who
do not fit into any of the categories in paragraphs (e)(2)(i) through
(iii) of this
[[Page 17539]]
section fees that cover the direct costs of searching for and
duplicating records that are responsive to the requests, except for the
first two hours of search time and the first 100 pages duplicated.
However, requests from persons for records about themselves will
continue to be treated under the fee provisions of the Privacy Act of
1974 and Sec. 705.10 of this chapter.
(3) Fee calculation. Fees will be calculated as follows:
(i) Manual search. At the salary rate (basic pay plus 16 percent)
of the employee(s) making the search.
(ii) Computer search. At the actual direct cost of providing the
search, including computer search time directly attributable to search
for records responsive to the request, runs, and operator salary
apportionable to the search.
(iii) Review (commercial use requests only). At the salary rate
(basic pay plus 16 percent) of the employee(s) conducting the review.
Only the review necessary at the initial administrative level to
determine the applicability of any exemption, and not review at the
administrative appeal level, will be included in the fee.
(iv) Duplication. At 20 cents per page for paper copy. For copies
of records prepared by computer (such as tapes or printouts), the
actual cost of production, including operator time, will be charged.
(v) Additional services; certification. Express mail and other
additional services that may be arranged by the requester will be
charged at actual cost. The fee for certification or authentication of
copies shall be $3.00 per document.
(vi) Assessment of interest. The Commission may begin assessing
interest charges on the 31st day following the day the fee bill is
sent. Interest will be at the rate prescribed in 31 U.S.C. 3717 and
will accrue from the date of billing.
(vii) No fee shall be charged if the total billable cost calculated
under paragraphs (e)(2) and (3) of this section is less than $10.00.
(4) Waiver or reduction of fees. (i) Documents will be furnished
without charge, or at a reduced charge, where disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(ii) Whenever a waiver or reduction of fees is granted, only one
copy of the record will be furnished.
(iii) The decision of the General Counsel on any fee waiver or
reduction request shall be final and unappealable.
(5) Payment procedures--(i) Fee payment. Payment of fees shall be
made by cash (if delivered in person), check, or money order payable to
the United States Commission on Civil Rights.
(ii) Notification of fees. No work shall be done that will result
in fees in excess of $25.00 without written authorization from the
requester. Where it is anticipated that fees will exceed $25.00, and
the requester has not indicated in advance a willingness to pay fees as
high as are anticipated, the requester will be notified of the amount
of the projected fees. The notification shall offer the requester an
opportunity to confer with the General Counsel in an attempt to
reformulate the request so as to meet the requester's needs at a lower
cost. The administrative time limits prescribed in 5 U.S.C. 552(a)(6)
will not begin until after the requester agrees in writing to accept
the prospective charges.
(6) Advance payment of fees. When fees are projected to exceed
$250.00, the requester may be required to make an advance payment of
all or part of the fee before the request is processed. If a requester
has previously failed to pay a fee in a timely fashion (i.e., within 30
days of the billing date), the requester will be required to pay the
full amount owed plus any applicable interest, and to make an advance
payment of the full amount of the estimated fee before a new or pending
request is processed from that requester. The administrative time
limits prescribed in 5 U.S.C. 552(a)(6) will not begin until after the
requester has complied with this provision.
(7) Other provisions--(i) Charges for unsuccessful search. Charges
may be assessed for time spent searching for requested records, even if
the search fails to locate responsive records or the records are
determined, after review, to be exempt from disclosure.
(ii) Aggregating requests to avoid fees. Multiple requests shall be
aggregated when the General Counsel reasonably determines that a
requester or group of requesters is attempting to break down a request
into a series of requests to evade fees.
(iii) Debt Collection Improvement Act of 1996. The Debt Collection
Improvement Act of 1996 (Public Law 104-134), including disclosure to
consumer reporting agencies and use of collection agencies, will be
used to encourage payment where appropriate.
(f) Exemptions (5 U.S.C. 552(b))--(1) General. The Commission may
exempt from disclosure matters that are:
(i)(A) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy and
(B) Are in fact properly classified pursuant to such Executive
Order.
(ii) Related solely to the internal personnel rules and practices
of an agency;
(iii) Specifically exempted from disclosure by statute;
(iv) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(v) Interagency or intra-agency memoranda or letters that would not
be available by law to a party other than an agency in litigation with
the agency;
(vi) Personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(vii) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(A) Could reasonably be expected to interfere with enforcement
proceedings;
(B) Could deprive a person of a right to a fair trial or an
impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(D) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis;
(E) Could disclose techniques and procedures for all enforcement
investigations or prosecutions, or could disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(F) Could reasonably be expected to endanger the life or physical
safety of any individual;
(viii) Contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; and
(ix) Geological and geophysical information and data, including
maps, concerning wells.
(2) Investigatory records or information. (5 U.S.C. 552(b)(7)).
(i) Among the documents exempt from disclosure pursuant to
paragraph (f)(1)(vii) of this section shall be records or information
reflecting investigations that either are conducted for the purpose of
determining whether a violation(s) of legal right has taken place, or
have disclosed that a
[[Page 17540]]
violation(s) of legal right has taken place, but only to the extent
that production of such records or information would fall within the
classifications established in paragraphs (f)(1)(vii)(B) through (F) of
this section.
(ii) Among the documents exempt from disclosure under
paragraphs(f)(1)(vii)(D) and (f)(2)(i) of this section concerning
confidential sources shall be documents that disclose the fact or the
substance of a communication made to the Commission in confidence
relating to an allegation or support of an allegation of wrongdoing by
certain persons. It is sufficient under this section to indicate the
confidentiality of the source if the substance of the communication or
the circumstances of the communication indicate that investigative
effectiveness could reasonably be expected to be inhibited by
disclosure.
(iii) Whenever a request is made that involves access to records
described in paragraph (f)(1)(vii)(A) of this section and the
investigation or proceeding involves a possible violation of criminal
law and there is reason to believe that the subject of the
investigation or proceeding is not aware of its pendency and disclosure
of the existence of the records could reasonably be expected to
interfere with enforcement proceedings, the Commission may, during only
such time as that circumstance continues, treat the records as not
subject to the requirements of 5 U.S.C. 552 and this section.
(3) Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the portions
that are exempt under this section.
(g) Administrative appeals. (1) These procedures apply whenever a
requester is denied records under paragraph (d)(2)(i) of this section.
(2) Parties may appeal decisions under paragraph (d)(2)(i) of this
section within 90 days of the date of such decision by filing a written
request for review addressed to the Staff Director, U.S. Commission on
Civil Rights, 624 9th Street, NW., Washington, DC 20425, by certified
mail, including a copy of the written denial, and may include a
statement of the circumstances, reasons or arguments advanced in
support of disclosure. Review will be made by the Staff Director on the
basis of the written record.
(3) The decision on review of any appeal filed under this section
shall be in writing over the signature of the Staff Director will be
promptly communicated to the person requesting review and will
constitute the final action of the Commission.
(4) Determinations of appeals filed under this section shall be
made within 20 working days after the receipt of such appeal. If, on
appeal, denial of records is in whole or part upheld, the Staff
Director shall notify the persons making such request of the provisions
for judicial review of that determination under 5 U.S.C. 552(a)(6).
(5) An extension of time may be granted under this section pursuant
to criteria established in paragraph (d)(3)(ii) (A) through (C) of this
section, except that such extension together with any extension, which
may have been granted pursuant to paragraph (d)(3)(ii) of this section,
may not exceed a total of 10 working days.
Sec. 704.2 Complaints.
Any person may bring to the attention of the Commission a grievance
that he or she believes falls within the jurisdiction of the
Commission, as set forth in section 3 of the Act. This shall be done by
submitting a complaint in writing to the Office of Civil Rights
Evaluation, U.S. Commission on Civil Rights, 9th Street, NW.,
Washington, DC 20425. Allegations falling under section 3(a)(1) of the
Act must be under oath or affirmation. All complaints should set forth
the pertinent facts upon which the complaint is based, including but
not limited to specification of:
(a) Names and titles of officials or other persons involved in acts
forming the basis for the complaint;
(b) Accurate designations of place locations involved;
(c) Dates of events described in the complaint.
Sec. 704.3 Other requests and communications.
Requests for information should be addressed to the Public Affairs
Unit and requests for Commission literature should be directed to
National Clearinghouse Library, U.S. Commission on Civil Rights, 624
9th Street, NW., Washington DC 20425. Communications with respect to
Commission proceedings should be made pursuant to Sec. 702.17 of this
chapter. All other communications should be directed to Office of Staff
Director, U.S. Commission on Civil Rights, 624 9th Street, Washington,
DC 20425.
Sec. 704.4 Restrictions on disclosure of information.
(a) By the provisions of the Act, no evidence or testimony or
summary of evidence or testimony taken in executive session may be
released or used in public sessions without the consent of the
Commission, and any person who releases or uses in public without the
consent of the Commission such evidence or testimony taken in executive
session shall be fined not more than $1,000 or imprisoned for not more
than 1 year.
(b) Unless a matter of public record, all information or documents
obtained or prepared by any Commissioner, officer, or employee of the
Commission, including members of Advisory Committees, in the course of
his or official duties, or by virtue of his or her official status,
shall not be disclosed or used by such person for any purpose except in
the performance of his or her official duties.
(c) Any Commissioner, officer, or employee of the Commission,
including members of Advisory Committees, who is served with a
subpoena, order, or other demand requiring the disclosure of such
information or the production of such documents shall appear in
response to such subpoena, order, or other demand and, unless otherwise
directed by the Commission, shall respectfully decline to disclose the
information or produce the documents called for, basing his or her
refusal upon this section. Any such person who is served with such a
subpoena, order, or other demand shall promptly advise the Commission
of the service of such subpoena, order, or other demand, the nature of
the information or documents sought, and any circumstances that may
bear upon the desirability of making available such information or
documents.
PART 705--MATERIALS AVAILABLE PURSUANT TO 5 U.S.C. 552a
Sec.
705.1 Purpose and scope.
705.2 Definitions.
705.3 Procedures for requests pertaining to individual records in
a system of records.
705.4 Times, places, and requirements for identification of
individuals making requests and identification of records requested.
705.5 Disclosure of requested information to individuals.
705.6 Request for correction or amendment to record.
705.7 Agency review of request for correction or amendment of the
record.
705.8 Appeal of an initial adverse agency determination.
705.9 Disclosure of records to a person other than the individual
to whom the record pertains.
705.10 Fees.
705.11 Penalties.
705.12 Special procedures: Information furnished by other
agencies.
705.13 Exemptions.
705.95 Accounting of the disclosures of records.
Authority: 5 U.S.C. 552a.
[[Page 17541]]
Sec. 705.1 Purpose and scope.
(a) The purpose of this part is to set forth rules to inform the
public regarding information maintained by the United States Commission
on Civil Rights about identifiable individuals and to inform those
individuals how they may gain access to and correct or amend
information about themselves.
(b) The rules in this part carry out the requirements of the
Privacy Act of 1974 (Public Law 93-579) and in particular 5 U.S.C. 552a
as added by that Act.
(c) The rules in this part apply only to records disclosed or
requested under the Privacy Act of 1974, and not to requests for
information made pursuant to the Freedom of Information Act, 5 U.S.C.
552.
Sec. 705.2 Definitions.
For the purpose of this part:
(a) Commission and agency mean the U.S. Commission on Civil Rights;
(b) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence;
(c) Maintain includes maintain, collect, use, or disseminate;
(d) Record means any item, collection, or grouping of information
about an individual that is maintained by the Commission, including,
but not limited to, his or her education, financial transactions,
medical history, and criminal or employment history and that contains
his or her name, or the identifying number, symbol, or other
identifying particular assigned to the individual;
(e) System record means a group of any records under the control of
the Commission from which information may be retrieved by the name of
the individual or by some identifying number, symbol, or other
identifying particular assigned to that individual;
(f) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided in 13 U.S.C. 8; and
(g) Routine use means, with respect to the disclosure of a record,
the use of such record for a purpose that is compatible with the
purpose for which it was collected.
(h) Confidential source means a source who furnished information to
the Government under an express promise that the identity of the source
would remain confidential, or, prior to September 27, 1975, under an
implied promise that the identity of the source would be held in
confidence.
(i) Act means the Privacy Act of 1974, Public Law 93-579.
Sec. 705.3 Procedures for requests pertaining to individual records in
a system of records.
(a) An individual seeking notification of whether a system of
records contains a record pertaining to him or her or an individual
seeking access to information or records pertaining to him or her, that
are available under the Privacy Act of 1974, shall present his or her
request in person or in writing to the General Counsel of the
Commission.
(b) In addition to meeting the requirements set forth in
Sec. 705.4(c) or (d), any person who requests information under the
regulations in this part shall provide a reasonably specific
description of the information sought so that it may be located without
undue search or inquiry. If possible, that description should include
the nature of the records sought, the approximate dates covered by the
record, and, if known by the requester, the system in which the record
is thought to be included. Requested information that is not identified
by a reasonably specific description is not an identifiable record, and
the request for that information cannot be treated as a formal request.
(c) If the description is insufficient, the agency will notify the
requester and, to the extent possible, indicate the additional
information required. Every reasonable effort shall be made to assist a
requester in the identification and location of the record or records
sought.
Sec. 705.4 Times, places, and requirements for identification of
individuals making requests and identification of records requested.
(a) The General Counsel is the designated Privacy Act Officer for
the Commission.
(b) An individual making a request to the General Counsel in person
may do so at the Commission's headquarters office, 624 9th Street,
N.W., Washington, D.C. 20425, on any business day during business
hours. Persons may also appear for purposes of identification only, at
any of the regional offices of the Commission on any business day
during business hours. Regional offices are located as follows:
Region I: Eastern Regional Office, Washington, DC
Connecticut, Delaware, District of Columbia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Rhode Island, Vermont, Virginia, and West Virginia.
Region II: Southern Regional Office, Atlanta, Georgia.
Florida, Georgia, Kentucky, North Carolina, South Carolina, and
Tennessee.
Region III: Midwestern Regional Office, Chicago, Illinois
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Region IV: Central Regional Office, Kansas City, Kansas
Alabama, Arkansas, Iowa, Kansas, Louisiana, Mississippi,
Missouri, Nebraska, and Oklahoma.
Region V: Rocky Mountain Regional Office, Denver, Colorado Colorado,
Montana, New Mexico, North Dakota, South Dakota, Utah, and Wyoming.
Region VI: Western Regional Office, Los Angeles, California
Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon,
Texas, and Washington.
(c) An individual seeking access to records in person may establish
his or her identity by the presentation of one document bearing a
photograph (such as a driver's license, passport, or identification
card or badge) or by the presentation of two items of identification
that do not bear a photograph, but do bear both a name and address
(such as a credit card). When identification is made without
photographic identification, the Commission will request a signature
comparison to the signature appearing on the items offered for
identification, whenever possible and practical.
(d) An individual seeking access to records by mail shall establish
his or her identity by a signature, address, date of birth, and one
other identification, such as a copy of a driver's license, passport,
identification card or badge, credit card, or other document. The words
Privacy Act Request should be placed in capital letters on the face of
the envelope in order to facilitate requests by mail.
(e) An individual seeking access in person or by mail who cannot
provide the required documentation of identification may provide a
notarized statement, swearing or affirming to his or her identity and
to the fact that he or she understands that there are criminal
penalties for the making of false statements.
(f) The parent or guardian of a minor or a person judicially
determined to be incompetent, in addition to establishing the identity
of the minor or incompetent person he or she represents as required by
paragraphs (a) through (c) of this section, shall establish his or her
own parentage or guardianship by furnishing a copy of a birth
certificate showing parentage or court order establishing guardianship.
(g) An individual seeking to review information about himself or
herself may be accompanied by another person of his or her own
choosing. In all such cases, the individual seeking access
[[Page 17542]]
shall be required to furnish a written statement authorizing the
discussion of his or her record in the presence of the accompanying
person.
Sec. 705.5 Disclosure of requested information to individuals.
The General Counsel, or one or more assistants designated by him or
her, upon receiving a request for notification of the existence of a
record or for access to a record shall:
(a) Determine whether such record exists;
(b) Determine whether access is available under the Privacy Act;
(c) Notify the requesting person of those determinations within 10
(ten) working days (excluding Saturdays, Sundays, and legal public
holidays); and
(d) Provide access to information pertaining to that person that
has been determined to be available.
Sec. 705.6 Request for correction or amendment to record.
(a) Any individual who has reviewed a record pertaining to him or
her that was furnished to him or her under this part may request the
agency to correct or amend all or part of that record.
(b) Each individual requesting a correction or amendment shall send
the request to the General Counsel.
(c) Each request for a correction or amendment of a record shall
contain the following information:
(1) The name of the individual requesting the correction or
amendment.
(2) The name of the system of records in which the record sought to
be amended is maintained.
(3) The location of the record system from which the record was
obtained.
(4) A copy of the record sought to be amended or a description of
that record.
(5) A statement of the material in the record that should be
corrected or amended.
(6) A statement of the specific wording of the correction or
amendment sought.
(7) A statement of the basis for the requested correction or
amendment, including any material that the individual can furnish to
substantiate the reasons for the amendment sought.
Sec. 705.7 Agency review of request for correction or amendment of the
record.
Within ten (10) working days (excluding Saturdays, Sundays and
legal public holidays) of the receipt of the request for the correction
or amendment of a record, the General Counsel shall acknowledge receipt
of the request and inform the individual that his or her request has
been received and inform the individual whether further information is
required before the correction or amendment can be considered. Further,
the General Counsel shall promptly and, under normal circumstances, not
later than thirty (30) working days after receipt of the request, make
the requested correction or amendment or notify the individual of his
or her refusal to do so, including in the notification the reasons for
the refusal and the procedures established by the Commission by which
the individual may initiate a review of that refusal. In the event of
correction or amendment, an individual shall be provided with one copy
of each record or portion thereof corrected or amended pursuant to his
or her request without charge as evidence of the correction or
amendment. The Commission shall also provide to all prior recipients of
such a record, the corrected or amended information to the extent that
it is relevant to the information previously furnished to a recipient
pursuant to the Privacy Act.
Sec. 705.8 Appeal of an initial adverse agency determination.
(a) Any individual whose request for access or for a correction or
amendment that has been denied, in whole or in part, by the General
Counsel may appeal that decision to the Staff Director of the
Commission, 624 9th Street, NW., Washington, DC 20425, or to a designee
of the Staff Director.
(b) The appeal shall be in writing and shall:
(1) Name the individual making the appeal;
(2) Identify the record sought to be amended or corrected;
(3) Name the record system in which that record is contained;
(4) Contain a short statement describing the amendment or
correction sought; and
(5) State the name of the person who initially denied the
correction or amendment.
(c) Not later than thirty (30) working days (excluding Saturdays,
Sundays, and legal public holidays) after the date on which the agency
received the appeal, the Staff Director shall complete his or her
review of the appeal and make a final decision thereon, unless, for
good cause shown, the Staff Director extends the appeal period beyond
the initial thirty (30) day appeal period. In the event of such an
extension, the Staff Director shall promptly notify the individual
making the appeal that the period for a final decision has been
extended.
(d) After review of an appeal request, the Staff Director will send
a written notice to the requester containing the following information:
(1) The decision; and if the denial is upheld, the reasons for the
decision;
(2) The right of the requester to institute a civil action in a
Federal District Court for judicial review of the decision if the
appeal is denied; and
(3) The right of the requester to file with the Commission a
concise statement setting forth the reasons for his or her disagreement
with the Commission's decision denying the request. The Commission
shall make this statement available to any person to whom the record is
later disclosed together with a brief statement, if the Commission
considers it appropriate, of the agency's reasons for denying the
requested correction or amendment. These statements shall also be
provided to all prior recipients of the record to the extent that it is
relevant to the information previously furnished to a recipient
pursuant to the Privacy Act.
Sec. 705.9 Disclosure of records to a person other than the individual
to whom the record pertains.
(a) Any individual who desires to have his or her record disclosed
to or mailed to a third person may authorize that person to act as his
or her agent for that specific purpose. The authorization shall be in
writing, signed by the individual, and notarized. The agent shall also
submit proof of his or her own identity as provided in Sec. 705.4.
(b) The parent of any minor individual or the legal guardian of any
individual who has been declared by a court to be incompetent, due to
physical or mental incapacity, may act on behalf of that individual in
any matter covered by this part. A parent or guardian who desires to
act on behalf of such an individual shall present suitable evidence of
parentage or guardianship by birth certificate, copy of a court order
or similar documents, and proof of the individual's identity as
provided in Sec. 705.4.
(c) An individual to whom a record is to be disclosed, in person,
pursuant to this part may have a person of his or her own choosing
accompany the individual when the record is disclosed.
Sec. 705.10 Fees.
If an individual requests copies of his or her records the charge
shall be three (3) cents per page; however, the Commission shall not
charge for copies furnished to an individual as a necessary part of the
process of disclosing the record to an individual. Fees may be waived
or reduced in accordance with Sec. 704.1(e) of this chapter because of
indigency, where the
[[Page 17543]]
cost is nominal, when it is in the public interest not to charge, or
when waiver would not constitute an unreasonable expense to the
Commission.
Sec. 705.11 Penalties.
Any person who makes a false statement in connection with any
request for a record, or in any request for an amendment to a record
under this part, is subject to the penalties prescribed in 18 U.S.C.
494 and 495.
Sec. 705.12 Special procedures: Information furnished by other
agencies.
When records or information sought from the Commission include
information furnished by other Federal agencies, the General Counsel
shall consult with the appropriate agency prior to making a decision to
disclose or to refuse to disclose the record, but the decision whether
or not to disclose the record shall be made by the General Counsel.
Sec. 705.13 Exemptions.
(a) Under the provision of 5 U.S.C. 552a(k), it has been determined
by the agency that the following exemptions are necessary and proper
and may be asserted by the agency:
(1) Exemption (k)(2) of the Act. Investigatory material compiled
for law enforcement purposes, other than material within the scope of
subsection (j)(2) of the Privacy Act: Provided, however, That if any
individual is denied any right, privilege, or benefit that he or she
would otherwise be eligible for, as a result of the maintenance of such
material, such material shall be provided to such individual, except to
the extent that the disclosure of such material would reveal the
identify of a source who furnished information to the Government under
an express promise that the identity of the source would be held in
confidence, or, prior to [the effective date of this section], under an
implied promise that the identity of the source would be held in
confidence.
(2) Exemption (k)(4) of the Act. Statistical personnel records that
are used only to generate aggregate data or for other evaluative or
analytical purposes and that are not used to make decisions on the
rights, benefits, or entitlements of individuals.
(3) Exemption (k)(5) of the Act. Investigatory material maintained
solely for the purposes of determining an individual's qualifications,
eligibility, or suitability for employment in the Federal civilian
service, Federal contracts, or access to classified information, but
only to the extent that disclosure of such material would reveal the
identity of the source who furnished information to the Government
under an express promise that the identity of the source would be held
in confidence, or prior to September 27, 1975, under an implied promise
that the identity of the source would be held in confidence.
(4) Exemption (k)(6) of the Act. Testing or examination material
used solely to determine individual qualifications for promotion or
appointment in the Federal service the disclosure of which would
compromise the objectivity or fairness of the testing or examination
process.
(b) Following are Commission systems of records that are partially
exempt under 5 U.S.C. 552a(k)(2), (4), (5), and (6) and the reasons for
such exemptions:
(1) Appeals, Grievances, and Complaints (staff)--Commission
Project, CRC-001. Exempt partially under 5 U.S.C. 552a(k)(2). The
reasons for possibly asserting the exemptions are to prevent subjects
of investigation from frustrating the investigatory process, to prevent
disclosure of investigative techniques, to maintain the ability to
obtain necessary information, to fulfill commitments made to sources to
protect their identities and the confidentiality of information and to
avoid endangering these sources.
(2) Complaints, CRC-003--Exempt partially under 5 U.S.C.
552a(k)(2). The reasons for possibly asserting the exemptions are to
prevent subjects of investigation from frustrating the investigatory
process, to prevent disclosure of investigative techniques, to maintain
the ability to obtain necessary information, to fulfill commitments
made to sources to protect their identities and the confidentiality of
information and to avoid endangering these sources.
(3) Commission projects, CRC-004--Partially exempt under 5 U.S.C.
552a(k)(2). The reasons for asserting the exemptions are to prevent
subjects of investigation from frustrating the investigatory process,
to prevent disclosure of investigative techniques, to maintain the
ability to obtain necessary information, to fulfill commitments made to
sources to protect their identities and the confidentiality of
information and to avoid endangering these sources.
(4) Other Employee Programs: EEO, Troubled Employee, and Upward
Mobility, CRC-006--Partially exempt under 5 U.S.C. 552a(k)(4), (5), and
(6). The reasons for asserting the exemptions are to maintain the
ability to obtain candid and necessary information, to fulfill
commitments made to sources to protect the confidentiality of
information, to avoid endangering these sources and, primarily, to
facilitate proper selection or continuance of the best applicants or
persons for a given position.
(5) State Advisory Committees Projects, CRC-009--Partially exempt
under 5 U.S.C. 552a(k)(2). The reasons for possibly asserting the
exemptions are to prevent subjects of investigation from frustrating
the investigatory process, to prevent disclosure of investigative
techniques, to maintain the ability to obtain necessary information, to
fulfill commitments made to sources to protect their identities and the
confidentiality of information and to avoid endangering these sources.
Sec. 705.95 Accounting of the disclosures of records.
(a) All disclosures of records covered by this part, except for the
exemptions listed in paragraph (b) of this section, shall be accounted
for by keeping a written record of the particular record disclosed, the
name and address of the person or agency to whom or to which disclosed,
and the date, nature, and purpose of the disclosure.
(b) No accounting is required for disclosures of records to those
officials and employees of the Commission who have a need for the
record in the performance of their duties or if disclosure would be
required under the Freedom of Information Act. 5 U.S.C. 552.
(c) The accounting shall be maintained for 5 years or until the
record is destroyed or transferred to the National Archives and Records
Administrator for storage, in which event, the accounting pertaining to
those records, unless maintained separately, shall be transferred with
the records themselves.
(d) The accounting of disclosures may be recorded in any system the
Commission determines is sufficient for this purpose, however, the
Commission must be able to construct from its system a listing of all
disclosures. The system of accounting of disclosures is not a system of
records under the definition in Sec. 705.2(e) and no accounting need be
maintained for disclosure of the accounting of disclosures.
(e) Upon request of an individual to whom a record pertains, the
accounting of the disclosures of that record shall be made available to
the requester, provided that he or she has complied with Sec. 705.3(a)
and with Sec. 705.4(c) or (d).
[[Page 17544]]
PART 706--EMPLOYEE RESPONSIBILITIES AND CONDUCT
Subpart A--General Provisions
Sec.
706.1 Implementation of regulations.
706.2 Purpose.
706.3 Definitions.
706.4 Distribution.
706.5 Counseling.
706.6 Disciplinary and other remedial action.
706.7 Outside employment and other activity.
706.8 Prohibition against disclosure of evidence.
Subpart B--Ethical and Other Conduct and Responsibilities of Employees
706.9 Proscribed actions.
706.10 Gifts, entertainment and favors.
706.11 Proscribed outside employment and other activities.
706.12 Financial interests.
706.13 Use of Government property.
706.14 Misuse of information.
706.15 Indebtedness.
706.16 Gambling, betting and lotteries.
706.17 General conduct prejudicial to the Government.
706.18 Miscellaneous statutory provisions.
Subpart C--Financial Reporting Requirements
706.19 Statements of financial and property interests and outside
employment.
706.20 Time and place for filing of reports.
706.21 Exclusion of certain positions from reporting requirements.
706.22 Information required to be reported--reporting forms.
706.23 Review of reports.
706.24 Public access to financial disclosure reports.
Authority: Part III of 5 U.S.C.
Subpart A--General Provisions
Sec. 706.1 Implementation of regulations.
The U.S. Commission on Civil Rights (hereinafter referred to as the
Commission) through the regulations in this part, implements, with
appropriate modifications, relevant sections of Part III of Title 5 of
the United States Code.
Sec. 706.2 Purpose.
The maintenance of unusually high standards of honesty, integrity,
impartiality, and conduct by Government employees and special
Government employees is essential to assure the proper performance of
the Government's business and the maintenance of confidence by citizens
in their Government. The avoidance of misconduct and conflicts of
interest on the part of Government employees and special Government
employees through informed judgment is indispensable to the maintenance
of these standards. To accord with these concepts, this part sets forth
the Commission's regulations covering the agency's employees and
special Government employees, prescribing standards of conduct and
responsibilities and governing statements reporting employment and
financial interests.
Sec. 706.3 Definitions.
In this part:
Commission means the United States Commission on Civil Rights, an
Executive agency as defined by 5 U.S.C. 105.
Employee means an officer or employee of the Commission including a
special Government employee, as defined in 18 U.S.C. 202.
Executive order means Executive Order 11222 of May 8, 1965,
prescribing standards of ethical conduct for Government officers and
employees (3 CFR 1964-1965).
Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company,
or any other organization or institution.
Sec. 706.4 Distribution.
(a) Within 90 days after [the date of publication of the final
rule] the Commission shall furnish each employee with a copy of the
regulations in this part.
(b) The Commission shall furnish all new employees with a copy of
the regulations at the time of their entrance on duty.
(c) The Commission shall bring the regulations to the attention of
each employee annually and at such other times as circumstances
warrant.
(d) The Commission shall have available for review by employees
copies of relevant laws, the Executive order, and pertinent Commission
instructions relating to ethical and other standards of conduct.
Sec. 706.5 Counseling.
The General Counsel of the Commission shall serve as the agency's
ethical conduct counselor and is the designated agency official for the
purposes of the Ethics in Government Act. The General Counsel shall
respond to requests by employees and special Government employees for
advice and guidance respecting questions of ethical conduct, conflicts
of interest, reporting of financial interests and other matters of law
covered by the regulations in this part.
Sec. 706.6 Disciplinary and other remedial action.
An employee of the Commission who violates any of the regulations
in this part may be disciplined. The disciplinary action may be in
addition to any penalty prescribed by law for the violation. In
addition to or in lieu of disciplinary action, remedial action to end
conflicts or appearance of conflicts of interests may include but is
not limited to:
(a) Changes in assigned duties;
(b) Divestment by an employee of any conflicting interest; or
(c) Disqualification for a particular assignment.
Sec. 706.7 Outside employment and other activity.
Employees of the Commission may engage in outside employment or
other outside activity not incompatible with the full and proper
discharge of the duties and responsibilities of their Government
employment. Employees who wish to engage in outside employment shall
first obtain the approval, in writing, of their supervisor.
Sec. 706.8 Prohibition against disclosure of evidence.
All employees of the Commission are subject to the prohibition on
disclosure of evidence taken in executive session contained in
Sec. 702.6 of this chapter.
Subpart B--Ethical and Other Conduct and Responsibilities of
Employees
Sec. 706.9 Proscribed actions.
An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Commission efficiency or economy;
(d) Making a Commission decision outside official channels;
(e) Losing complete independence or impartiality; or
(f) Affecting adversely the confidence of the public in the
integrity of the Commission.
Sec. 706.10 Gifts, entertainment, and favors.
(a) Except as provided in paragraphs (b) and (e) of this section,
an employee shall not solicit or accept, directly or indirectly, any
gift, gratuity, favor, entertainment, loan, or any other thing of
monetary value from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Commission;
(2) Conducts operations or activities that are regulated by the
Commission; or
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duty.
[[Page 17545]]
(b) Exceptions from the prohibitions contained in paragraph (a) of
this section are as follows:
(1) Gifts, entertainment, and favors that derive from family or
personal relationships (such as those between parents, children, or
spouse of the employee and the employee) when the circumstances make it
clear that it is those relationships rather than the business of the
persons concerned that are the motivating factors;
(2) Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where an employee may
properly be in attendance;
(3) Acceptance of loans from banks or other financial institutions
on customary terms to finance proper and usual activities of employees,
such as home mortgage loans; and
(4) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value.
(c) Employees shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior, or accept a gift from an employee receiving
less pay than themselves. This paragraph, however, does not prohibit a
voluntary gift of nominal value or donation in a nominal amount made on
a special occasion such as marriage, illness, or retirement.
(d) An employee shall not accept a gift, present, decoration, or
other thing from a foreign government unless authorized by Congress as
provided by the Constitution and 5 U.S.C. 7342.
(e) Neither this section nor Sec. 706.11 precludes an employee from
receipt of bona fide reimbursement, unless prohibited by law, for
expenses of travel and such other necessary subsistence as is
compatible with this part, for which no Government payment or
reimbursement is made. This paragraph, however, does not allow
employees to be reimbursed, or payment to be made on their behalf, for
excessive personal living expenses, gifts, entertainment, or other
personal benefits.
Sec. 706.11 Proscribed outside employment and other activities.
(a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of Government employment. Incompatible
activities include but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of conflict(s) of interest; or
(2) Outside employment that tends to impair mental or physical
capacity to perform Governmental duties and responsibilities in an
acceptable manner.
(b) An employee shall not receive any salary or anything of
monetary value from a private source as compensation for service to the
Government as prohibited by 18 U.S.C. 209.
(c) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, the Executive order, or
Commission regulations. An employee shall not, either for or without
compensation, engage in teaching, lecturing, or writing, including
teaching, lecturing, or writing for the purpose of the special
preparation of a person or class of persons for an examination of the
Office of Personnel Management or Board of Examiners for the Foreign
Service, which depends on information obtained as a result of
Government employment, except when that information has been made
available to the general public or will be made available on request or
when the agency head gives written authorization for use of nonpublic
information on the basis that the use is in the public interest. In
addition, an employee who is a Presidential appointee covered by
section 401(a) of the order shall not receive compensation or anything
of monetary value for any consultation, lecture, discussion, writing,
or appearance the subject matter of which is devoted substantially to
the responsibilities, programs, or operations of the Commission or
which draws substantially on official data or ideas that have not
become part of the body of public information.
(d) This section does not preclude an employee from:
(1) Participation in the activities of national or State political
parties not proscribed by law;
(2) Participation in the affairs of or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational public service, or civic organization; or
(3) Outside employment permitted under the regulations in this
part.
Sec. 706.12 Financial interests.
(a) Employees shall not:
(1) Have a direct or indirect financial interest that conflicts
substantially, or appears to conflict substantially, with their
Government duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through their
Government employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government, so long as
it is not prohibited by law, the Executive order, or Commission
regulations.
Sec. 706.13 Use of Government property.
Employees shall not directly or indirectly use, or allow the use
of, Government property of any kind, including property leased to the
Government, for other than officially approved activities. Employees
have a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued
them.
Sec. 706.14 Misuse of information.
For the purpose of furthering a private interest, employees shall
not directly or indirectly use, or allow the use of, official
information obtained through or in connection with their Government
employment that has not been made available to the general public.
Sec. 706.15 Indebtedness.
An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law such as Federal,
State, or local taxes. For the purpose of this section, a just
financial obligation means one acknowledged by the employee or reduced
to judgment by a court, and in a proper and timely manner means in a
manner that the agency determines does not, under the circumstances,
reflect adversely on the Government as the employer. In the event of
dispute between an employee and an alleged creditor, this section does
not require the Commission to determine the validity or amount of the
disputed debt.
Sec. 706.16 Gambling, betting and lotteries.
Employees shall not participate while on Government-owned or leased
property or while on duty for the Government in any gambling activity
including the operation of a gambling device, in conducting a lottery
or pool, in a game for money or property, or in selling or purchasing a
numbers slip or ticket.
[[Page 17546]]
Sec. 706.17 General conduct prejudicial to the Government.
Employees shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct or other conduct
prejudicial to the Government.
Sec. 706.18 Miscellaneous statutory provisions.
Employees shall acquaint themselves with each statute that relates
to their ethical and other conduct as an employee of the Commission and
of the Government. The attention of Commission employees is directed to
the following statutory provisions:
(a) House Document 103, 86th Congress, 1st Session, the ``Code of
Ethics for Government Service'';
(b) The provisions relating to bribery, graft, and conflicts of
interest, as appropriate to the employees concerned (18 U.S.C. 201-
225);
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913);
(d) The prohibitions against disloyalty and striking (5 U.S.C.
73811; 18 U.S.C. 1918);
(e) The prohibitions against the disclosure of classified
information (18 U.S.C. 798; 50 U.S.C. 1905);
(f) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352);
(g) The prohibition against the misuse of a Government vehicle (31
U.S.C. 1349(b));
(h) The prohibition against the misuse of the franking privilege
(18 U.S.C. 1719);
(i) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917);
(j) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001);
(k) The prohibition against mutilating or destroying a public
record (18 U.S.C. 2071);
(l) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508);
(m) The prohibitions against:
(1) Embezzlement of Government money or property (18 U.S.C. 641);
(2) Failing to account for public money (18 U.S.C. 643); and
(3) Embezzlement of the money or property of another person in the
possession of the employee by reason of his or her employment (18
U.S.C. 654);
(n) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285);
(o) The prohibitions against political activities (5 U.S.C. 7323
and 18 U.S.C. 602, 603, and 607); and
(p) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agent Registration Act
(18 U.S.C. 219).
Subpart C--Financial Reporting Requirements
Sec. 706.19 Statements of financial and property interests and outside
employment.
Pursuant to the Ethics in Government Act of 1978 (Public Law 95-
521, as amended by Public Law 101-194, 101-280, 102-90, 102-378, and
104-65, referred to hereinafter in this subpart as ``the Act''), the
following officers and employees of the Commission are required to file
annual reports of financial and property interests and outside
employment if they have served 61 days or more in their positions
during the preceding calendar year:
(a) Officers or employees, including a special Government employee
as defined in 18 U.S.C. 202, who occupies a position classified above
GS-15 of the General Schedule or, in the case of positions not under
the General Schedule, for which the rate of basic pay is equal to or
greater than 120 percent of the minimum rate of basic pay payable for
GS-15 of the General Schedule.;
(b) Employees in the excepted service in positions that are of a
confidential or policy-making character, unless their positions have
been excluded by the Director of the Office of Government Ethics; and
(c) Each designated agency ethics official.
Sec. 706.20 Time and place for filing of reports.
(a) Annual reports are to be filed no later than May 15 of each
calendar year, except that persons assuming a position for which
reports are required who have not immediately prior to this assumption
occupied a covered position in another agency, must file a report
within 30 days after assuming the position at the Commission. In the
event an individual terminates employment with the Commission and does
not accept another position for which reporting is required, the report
must be filed no later than the 30th day after termination, covering:
(1) The preceding calendar year if the annual May 15 report has not
been filed; and
(2) The portion of the present calendar year up to the date of
termination.
(b) Reports shall be filed with the designated ethics officer
(General Counsel) of the Commission. The reports of the designated
ethics officer and nominees to and holders of positions that require
confirmation by the Senate shall be transmitted by the General Counsel
to the Office of Government Ethics of the Office of Personnel
Management.
Sec. 706.21 Exclusion of certain positions from reporting
requirements.
(a) Under section 101 of the Act, a report is required of any
person in the executive branch in a position excepted from the
competitive service by reason of being of a confidential or policymaker
character. The exclusion of any position will be effective as of the
time the Commission files with the Office of Government Ethics a list
and description of each position for which exclusion is sought, and the
identity of its current occupant. Such a list must be filed with the
Office of Government Ethics on or before the date on which such reports
are due under the Act.
(b) In the event that the Office of Government Ethics finds that
one or more positions have been improperly excluded, it will so advise
the Commission and set a date for the filing of the report.
Sec. 706.22 Information required to be reported--reporting forms.
Information required to be reported by the Act shall be set forth
in the manner specified in, and in accordance with the instructions
contained in, Standard Forms issued by the Office of Personnel
Management, to be used as follows:
(a) Standard Form 278--for use by an officer or employee filing:
(1) An annual report pursuant to section 101 of the Act, or
(2) A departure report upon termination of employment, pursuant to
section 101 of the Act;
(b) Standard Form 278A--for use by:
(1) An individual assuming a position for which reporting is
required pursuant to section 201(a) of the Act; or
(2) An individual whose nomination has been transmitted by the
President to the Senate, pursuant to section 201(b) of the Act.
Sec. 706.23 Review of reports.
(a) Financial reports are reviewed by the Commission's designated
Ethics official or the Director of the Office of Government Ethics, as
appropriate. Reports are to be reviewed within 60 days after the date
of their filing or transmittal to the Office of Government Ethics.
(b) After reviewing a report, the reviewing official is required
to:
(1) State upon the report that the reporting individual is in
compliance
[[Page 17547]]
with applicable laws and regulations and to sign the report;
(2) Notify the reporting individual that additional information is
required to be submitted and the time by which it must be submitted; or
(3) Notify the reporting individual that the report indicates
noncompliance and afford the individual a reasonable opportunity for a
written or oral response after which the reviewing official reaches an
opinion whether the individual is in compliance.
(c) If the reviewing official determines that the reporting
individual is not in compliance with applicable laws and regulations,
the reviewing official will notify the individual of that opinion and
after an opportunity for personal consultation notify the individual of
the steps that should be taken to assure compliance and the date by
which such steps should be taken.
(d) The use of any steps to bring the individual in compliance are
to be in accordance with regulations issued by the Director of the
Office of Government Ethics.
(e) To assist employees in avoiding situations in which they would
not be in compliance with applicable laws and regulations, the
designated Commission ethics official is to maintain a list of those
circumstances or situations that have resulted or may result in
noncompliance and the lists are to be periodically published and
furnished to individuals required to file reports under this Act.
Sec. 706.24 Public access to financial disclosure reports.
(a) Pursuant to section 105(b) of the Act, each report will be made
available for public inspection within 15 days after the report is
received by the agency, whether or not the review of the report
prescribed by section 106 of the Act has been completed.
(b) Pursuant to section 105(b) of the Act, the following rules are
applicable to public access to financial reports:
(1) A financial disclosure report may not be made available to any
person nor may a copy thereof be provided to any person except upon
written application by such person stating:
(i) That person's name, occupation, and address;
(ii) The name and address of any other person or organization on
whose behalf the inspection or copy is requested; and
(iii) That such person is aware that it is unlawful to obtain or
use a report:
(A) For any unlawful purpose;
(B) For any commercial purpose, other than by news and
communications media for dissemination to the general public;
(C) For determining or establishing the credit rating of any
individual; or
(D) For use, directly or indirectly, in the solicitation of money
for any political, charitable, or other purpose. Any application for a
report shall be available to the public during the period in which the
requested report is available to the public.
(2) [Reserved]
(c) Requests for copies of financial disclosure reports of officers
appointed by the President by and with the advice and consent of the
Senate, as well as nominees to such offices and designated Commission
ethics officials, may be directed to the Director of the Office of
Government Ethics.
(d) To gain access to or to obtain a copy of a report filed with
the Commission, an individual should appear in person at the office of
the General Counsel of the Commission, 624 9th Street, NW., Washington,
DC 20425, during the hours 8:30 a.m. to 4:30 p.m. and complete an
application form. Requests by mail should contain the information
described in paragraph (b) of this section, together with the signature
of the requester. Requests that do not contain the required information
will be returned. Notice of the statutory prohibitions on use will be
attached to copies of reports provided in response to a request
otherwise properly filled out.
PART 707--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY U.S. COMMISSION
ON CIVIL RIGHTS
Sec.
707.1 Purpose.
707.2 Application.
707.3 Definitions.
707.4 Self-evaluation and remedial measures.
707.5 Notice.
707.6 General prohibitions against discrimination.
707.7 Employment.
707.8 Physical access.
707.9 Access to communications.
707.10 Auxiliary aids.
707.11 Eliminating discriminatory qualifications and selection
criteria.
707.12 Compliance procedures.
Authority: 29 U.S.C. 791 et seq.
Sec. 707.1 Purpose.
The purpose of this part is to effectuate 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. 707.2 Application.
This part applies to all programs and activities, including
employment, conducted by the Agency.
Sec. 707.3 Definitions.
For the purposes of this part, the term--
(a) Agency means the U.S. Commission on Civil Rights and its State
Advisory Committees.
(b) Auxiliary aids means services or devices that enable persons
with impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Braille materials,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, note takers, written
materials, and other similar services and devices.
(c) Complete complaint means a written statement that contains the
complainant's name and address and describes the Agency's alleged
discriminatory action in sufficient detail to inform the Agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims
of discrimination.
(d) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, vehicles, or other real or
personal property.
(e) Individual with disabilities means any person 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. As used in this definition, the
phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: Neurological, musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary;
[[Page 17548]]
hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or 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, drug
addiction, and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Agency as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in paragraph (e)(1) of
this definition but is treated by the Agency as having such an
impairment.
(f) Qualified individual with disabilities means--
(1) With respect to any Agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with disabilities who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Agency can demonstrate would result in a fundamental alteration in its
nature; and
(2) With respect to employment, an individual with disabilities who
meets the definition set forth in 29 CFR 1614.203, which is made
applicable to this part by Sec. 707.7.
(3) With respect to any other Agency program or activity, an
individual with disabilities who meets the essential eligibility
requirements for participation in, or receipt of benefits from, that
program or activity.
(g) Section 504 means section 504 of the Rehabilitation Act of 1973
(Public Law 93-112, 87 Stat. 394 (29 U.S.C. 794), as amended through
1998. As used in this part, section 504 applies only to programs or
activities conducted by the Agency. The Agency does not operate any
programs of Federal financial assistance to other entities.
Sec. 707.4 Self-evaluation and remedial measures.
(a) The Agency shall, before [date one year after the effective
date of this part], evaluate its current policies and practices, and
the effects thereof, that do not or may not meet the requirements of
this part, and, to the extent modification of any such policies and
practices is required, the Agency shall proceed to make the necessary
modifications.
(b) The Agency shall provide an opportunity to interested persons,
including individuals with disabilities and organizations representing
individuals with disabilities, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The Agency shall, for at least three years following completion
of the evaluation required under paragraph (a) of this section,
maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified;
and
(2) A description of any modifications made.
Sec. 707.5 Notice.
(a) The Agency shall make available to all employees, applicants,
and other interested persons, as appropriate, information regarding the
provisions of this part and its applicability to the programs or
activities conducted by the Agency, and such information shall be made
available to the extent the Staff Director finds necessary to apprise
such persons of the protections against discrimination assured them by
section 504 and this part.
(b) The Agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Agency shall take appropriate steps to provide individuals
with disabilities with information regarding their section 504 rights
under the Agency's programs or activities.
Sec. 707.6 General prohibitions against discrimination.
(a) No qualified individual with disabilities shall, on the basis
of disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity conducted by the Agency.
(b)(1) The Agency, in providing any aid, benefit, or service, shall
not, directly or through contractual, licensing, or other arrangements,
on the basis of disability--
(i) Deny a qualified individual with disabilities the opportunity
to participate in or benefit from the aid, benefit(s), or service(s);
(ii) Afford a qualified individual with disabilities an opportunity
to participate in or benefit from the aid, benefit(s), or service(s)
that are not equal to that afforded others;
(iii) Provide a qualified individual with disabilities with an aid,
benefit(s), or service(s) that are not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than are provided to others unless such action is
necessary to provide qualified individuals with disabilities with aid,
benefits, or services that are as effective as those provided to
others:
(v) Deny a qualified individual with disabilities the opportunity
to participate as a member of planning or advisory boards or
committees; or
(vi) Otherwise limit a qualified individual with disabilities in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the aid, benefit(s), or service(s).
(2) The Agency shall not deny a qualified individual with
disabilities the opportunity to participate in programs or activities
that are not separate or different, despite the existence of
permissibly separate or different programs or activities.
(3) The Agency shall not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(4) The Agency shall not in determining the site or location of a
facility or activity make selections the purpose or effect of which
would--
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to
[[Page 17549]]
discrimination under any program or activity conducted by the Agency;
or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The Agency, in the selection of procurement contractors, shall
not use criteria that subject qualified individuals with disabilities
to discrimination on the basis of disability.
(c) The exclusion of non-disabled persons 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
is not prohibited by this part.
(d) The Agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
Sec. 707.7 Employment.
No qualified individual with disabilities shall, on the basis of
disability, be subjected to discrimination in employment under any
program or activity conducted by the Agency. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791), as established by the Equal Employment
Opportunity Commission in 29 CFR 1614.101 through 1614.110, shall apply
to employment in programs or activities conducted by the Agency.
Sec. 707.8 Physical access.
(a) Discrimination prohibited. Except as otherwise provided in this
section, no qualified individual with disabilities shall, because the
Agency's facilities are inaccessible to or unusable by individuals with
disabilities, be denied the benefits of, be excluded from participation
in, or otherwise be subjected to discrimination under any program or
activity conducted by the Agency.
(b) Existing facilities-program access--(1) Existing facilities
defined. For the purpose of this section, existing facilities means
those facilities owned, leased or used through some other arrangement
by the Agency on March 28, 1990.
(2) General. The Agency shall operate each program or activity
conducted in an existing facility 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--
(i) Necessarily require the Agency to make each of its existing
facilities accessible to and usable by individuals with disabilities
(ii) Require the Agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where Agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the Agency has the burden
of proving that compliance with this paragraph would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Staff Director or his or
her designee after considering all Agency resources available for use
in the funding and operation of the conducted program or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or
such burdens, the Agency shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits and
services of the program or activity.
(3) Methods. (i) The Agency may comply with the requirements of
this section through such means as redesign of equipment, reassignment
of services to accessible buildings, assignment of aides to individuals
with disabilities, delivery of services at alternative accessible
sites, alteration of existing facilities and construction of new
facilities, use of accessible vehicles, or any other methods that
result in making its program or activities readily accessible to and
usable by individuals with disabilities.
(ii) The Agency is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with paragraph (b)(2) of this section. The Agency, in making
alterations to existing buildings to achieve program accessibility,
shall meet accessibility requirements imposed by the Architectural
Barriers Act of 1968, 42 U.S.C. 4151 through 4157,
(iii) In choosing among available methods for meeting the
requirements of this section, the Agency shall give priority to those
methods that offer programs and activities to qualified individuals
with disabilities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.
(4) Time period for compliance. The Agency shall comply with the
obligations established under this section before [date sixty days
after the effective date of this part], except that where structural
changes in facilities are undertaken, such changes shall be made before
[date three years after the effective date of this part], but in any
event as expeditiously as possible.
(5) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Agency shall develop, before [date 6 months after the effective date of
this part], a transition plan setting forth the steps necessary to
complete such changes. The Agency shall provide an opportunity to
interested persons, including individuals with disabilities and
organizations representing individuals with disabilities, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum--
(i) Identify physical obstacles in the Agency's facilities that
limit the accessibility of its programs or activities to individuals
with disabilities;
(ii) Describe in detail the methods that will be used to make the
facilities accessible;
(iii) Specify the schedule for taking the steps necessary to
achieve compliance with this paragraph and, if the time period of the
transition plan is longer than 1 year, identify steps that will be
taken during each year of the transition period; and
(iv) Indicate the official response for implementation of the plan.
(6) The Agency shall provide signs at a primary entrance to each of
its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(c) New purchases, leases, or other arrangements. (1) Any building
or facility acquired after March 28, 1990, whether by purchase, lease
(other than lease renewal), or any other arrangement, shall be readily
accessible to and usable by individuals with disabilities.
(2) Nothing in this paragraph requires the Agency to take any
action that it can demonstrate would result in a fundamental alteration
in the nature of a program or activity or in undue financial and
administrative burdens. In those circumstances where Agency
[[Page 17550]]
personnel believe that the proposed action would fundamentally alter
the program or activity or would result in undue financial and
administrative burdens, the Agency has the burden of proving that
compliance with this paragraph would result in such alteration or
burdens. The decision that compliance would result in such alteration
or burdens must be made by the Staff Director or his or her designee
after considering all Agency resources available for use in the funding
and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the Agency shall take any other action that would not result
in such an alteration or such burdens but would nevertheless ensure
that individuals with disabilities receive the benefits and services of
the program or activity.
(d) New construction and alterations. Each building or part of a
building that is constructed or altered by, on behalf of, or for the
use of the Agency shall be designed, constructed, or altered so as to
be readily accessible to and usable by individuals with disabilities in
accordance with the requirements imposed by the Architectural Barriers
Act of 1968, 42 U.S.C. 4151 through 4157.
Sec. 707.9 Access to communications.
(a) Discrimination prohibited. Except as otherwise provided in this
section, no qualified individual with disabilities shall, because the
Agency's communications are inaccessible to or unusable by individuals
with disabilities, be denied the benefits of, be excluded from
participation in, or otherwise be subjected to discrimination under any
program or activity conducted by the Agency.
(b) The Agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(c) Specific requirements regarding oral communications--(1)
Telecommunications devices for deaf persons. (i) The Agency
headquarters and each regional office shall maintain and reliably
answer at least one telecommunications device for deaf persons (TDD) or
equally effective telecommunications device.
(ii) The Agency shall ensure that all Agency letterhead, forms, and
other documents listing any Agency telephone number list the
appropriate TDD numbers.
(2) Interpreter service. (i) The Agency shall establish a reliable
system for the provision of qualified interpreters to individuals with
disabilities for Agency programs or activities. This provision does not
require the Agency to have an interpreter on staff, but does require
the Agency to be able to provide a qualified interpreter on reasonable
notice.
(ii) Notice of the availability of interpreter service shall be
included in all announcements notifying the public of Agency activities
to which the public is invited or which it is permitted to attend,
including but not limited to the Commission's meetings, consultations,
hearings, press conferences, and State Advisory Committee conferences
and meetings. This notice shall designate the Agency official(s) and
the address, telephone and TDD number to call to request interpreter
services.
(d) Specific requirements for printed communications. (1) The
Agency shall establish a system to provide to individuals with
disabilities appropriate reader or taping service for all Agency
publications that are available to the public. This provision does not
require the Agency to have a reader or taper on staff, but does require
the Agency to be able to provide appropriate reader or taping service
within a reasonable time and on reasonable notice. The Agency shall
effectively notify qualified individuals with disabilities of the
availability of reader or taping services.
(2) Notice of the availability of reader or taping service shall be
included in all publications that are available to the public. This
notice shall designate the Agency official(s) and the address,
telephone, and TDD number to call to request interpreter services.
(e) Nothing in this section or Sec. 707.10 requires the Agency to
take any action that it can demonstrate would result in a fundamental
alteration in the nature of a program or activity or in undue financial
and administrative burdens. In those circumstances where Agency
personnel believe that the proposed action would fundamentally alter
the program or activity or would result in undue financial and
administrative burdens, the Agency has the burden of proving that
compliance with this section or Sec. 707.10 would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Staff Director or his or
her designee after considering all Agency resources available for use
in the funding and operation of the conducted program or activity and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action required to comply with this paragraph
would result in such an alteration or such burdens, the Agency shall
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that, to the maximum extent
possible, individuals with disabilities receive the benefits and
services of the program or activity.
Sec. 707.10 Auxiliary aids.
(a) The Agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with disabilities an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the Agency.
(b) In determining what type of auxiliary aid is necessary, the
Agency shall give primary consideration to the requests of the
individual with disabilities.
(c) The Agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
Sec. 707.11 Eliminating discriminatory qualifications and selection
criteria.
The Agency shall not make use of any qualification standard,
eligibility requirement, or selection criterion that excludes
particular classes of individuals with disabilities from an Agency
program or activity merely because the persons are disabled, without
regard to an individual's actual ability to participate. An
irrebuttable presumption of inability to participate based upon a
disability shall be permissible only if the condition would, in all
instances, prevent an individual from meeting the essential eligibility
requirements for participating in, or receiving the benefits of, the
particular program or activity.
Sec. 707.12 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs or activities conducted by the Agency.
(b) The Agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established in 29 U.S.C. 791 by the Equal Employment Opportunity
Commission in 29 CFR part 1613 pursuant to section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Responsibility for implementation and operation of this section
shall be vested in the Office of General Counsel.
(d) The Agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180
[[Page 17551]]
days of the alleged act of discrimination. The Agency may extend this
time period for good cause.
(e) If the Agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The Agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, 42 U.S.C. 4151 through 4157, is not readily accessible to and
usable by individuals with disabilities.
(g) Within 180 days of the receipt of a complete complaint for
which it has jurisdiction, the Agency shall notify the complainant of
the results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt
from the Agency of the letter required by paragraph (g) of this
section. The Staff Director may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Staff
Director or the Staff Director's designee.
(j) The Agency shall notify the complainant in writing of the
results of the appeal within 60 days of the receipt of the request. If
the head of the Agency determines that additional information is needed
from the complainant, it shall have 60 days from the date it receives
the additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (d), (g), (h), and (j) of
this section may be extended for an individual case when the Staff
Director determines that there is good cause, based on the particular
circumstances of that case, for the extension.
(l) The Agency may delegate its authority for conducting complaint
investigations to other Federal agencies; however, the authority for
making the final determination may not be delegated to another Agency.
PART 708--COLLECTION BY SALARY OFFSET FROM INDEBTED CURRENT AND
FORMER EMPLOYEES
Sec.
708.1 Purpose and scope.
708.2 Policy.
708.3 Definitions.
708.4 Applicability.
708.5 Notice.
708.6 Petitions for hearing.
708.7 Hearing procedures.
708.8 Written decision.
708.9 Coordinating offset with another Federal agency.
708.10 Procedures for salary offset.
708.11 Refunds.
708.12 Statute of limitations.
708.13 Non-waiver of rights by payments.
708.14 Interest, penalties, and administrative costs.
Authority: 5 U.S.C. 5514
Sec. 708.1 Purpose and scope.
(a) The regulations in this part provide the procedure pursuant to
5 U.S.C. 5514 and 5 CFR 550.1101 through 550.1110 for the collection by
administrative offset of a Federal employee's salary without his or her
consent to satisfy certain debts owed to the Federal government. This
procedure applies to all Federal employees who owe debts to the U.S.
Commission on Civil Rights (Commission). This provision does not apply
when the employee consents to recovery from his or her current pay
account.
(b) This procedure does not apply to debts or claims arising under:
(1) The Internal Revenue Code (26 U.S.C. 1 et seq.);
(2) The Social Security Act (42 U.S.C. 301 et seq.);
(3) The tariff laws of the United States; or
(4) To any case where collection of a debt by salary offset is
explicitly provided for or prohibited by another statute (e.g., travel
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C.
4108).
(c) The Commission shall except from salary offset provisions any
adjustments to pay arising out of an employee's election of coverage or
a change in coverage under a Federal benefits programs requiring
periodic payroll deductions from pay, if the amount to be recovered was
accumulated over four pay periods or less.
(d) These procedures do not preclude an employee or former employee
from requesting a waiver of a salary overpayment under 5 U.S.C. 5584 or
10 U.S.C. 2774 or in any way questioning the amount or validity of the
debt by submitting a subsequent claim to the General Accounting Office
(GAO) in accordance with procedures prescribed by the GAO. In addition,
this procedure does not preclude an employee from requesting a waiver
pursuant to other statutory provisions applicable to the particular
debt being collected.
Sec. 708.2 Policy.
It is the policy of the Commission to apply the procedures in the
regulations in this part uniformly and consistently in the collection
of internal debts from its current and former employees.
Sec. 708.3 Definitions.
For the purposes of the regulations in this part the following
definitions apply:
(a) Agency means:
(1) An Executive agency as defined in 5 U.S.C. 105, including the
U.S. Postal Service and the U.S. Postal Rate Commission;
(2) A military department as defined in 5 U.S.C. 102;
(3) An agency or court in the judicial branch, including a court as
defined in 28 U.S.C. 610, the District Court for the Northern Mariana
Islands, and the Judicial panel on Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Creditor agency means the agency to which the debt is owed.
(c) Debt means an amount owed to the United States from sources,
which include loans insured or guaranteed by the United States and
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interest, fines and forfeitures (except those arising under
the Uniform Code of Military Justice), and all other similar sources.
(d) Deputy Staff Director means the Deputy Staff Director of the
Commission or in his or her absence, or in the event of a vacancy in
the position or its elimination, the Director of Human Resources.
(e) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or in the case of an
employee not entitled to basic pay, other authorized pay remaining from
an employee's Federal pay after required deductions for social
security, Federal, state or local income tax, health insurance
premiums, retirement contributions, life insurance premiums, Federal
employment taxes, and any other deductions that are required to be
withheld by law.
(f) Employee means a current employee of an agency, including a
current member of the Armed Forces or a Reserve of the Armed Forces
(Reserves).
(g) Former employee means an employee who is no longer employed
with the Commission but is currently employed with another Federal
agency.
(h) FCCS means the Federal Claims Collection Standards jointly
published
[[Page 17552]]
by the Department of Justice and the General Accounting Office at 4 CFR
chapter I.
(i) Hearing official means an individual responsible for conducting
any hearing with respect to the existence or amount of a debt claimed,
and who renders a decision on the basis of such hearing. A hearing
official may not be under the supervision or control of the Deputy
Staff Director of the Commission.
(j) Paying agency means the agency employing the individual who
owes the debt and is responsible for authorizing the payment of his or
her current pay.
(k) Pay interval will normally be the biweekly pay period but may
be some regularly recurring period of time in which pay is received.
(l) Retainer pay means the pay above the maximum rate of an
employee's grade that he or she is allowed to keep in special
situations rather than having the employee's rate of basic pay reduced.
(m) Salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee
without his or her consent.
(n) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 5 U.S.C.
8346(b), or any other law.
Sec. 708.4 Applicability.
The regulations in this part are to be followed when:
(a) The Commission is owed a debt by an individual who is a current
employee of the Commission; or
(b) The Commission is owed a debt by an individual currently
employed by another Federal agency; or
(c) The Commission employs an individual who owes a debt to another
Federal agency.
Sec. 708.5 Notice.
(a) Deductions shall not be made unless the employee who owes the
debt has been provided with written notice signed by the Deputy Staff
Director or in his or her absence, or in the event of a vacancy in that
position or its elimination, the Director of Human Resources (or the
U.S. Department of Agriculture, National Finance Center acting on
behalf of the Commission) of the debt at least 30 days before salary
offset commences.
(b) The written notice from the Deputy Staff Director, acting on
behalf of the Commission, as the creditor agency, shall contain:
(1) A statement that the debt is owed and an explanation of its
origin, nature, and amount;
(2) The agency's intention to collect the debt by deducting from
the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deduction(s);
(4) An explanation of the requirements concerning the current
interest rate, penalties, and administrative costs, including a
statement that such charges will be assessed unless excused in
accordance with the Federal Claims Collections Standards (4 CFR chapter
I);
(5) The employee's right to inspect, request, or receive a copy of
the government records relating to the debt;
(6) The employee's right to enter into a written repayment schedule
for the voluntary repayment of the debt in lieu of offset;
(7) The right to a hearing conducted by an impartial hearing
official (either an administrative law judge or an official who is not
under the control of the Commission);
(8) The method and time period for petitioning for a hearing;
(9) A statement that the timely filing (i.e., within 15 calendar
days) of a petition for a hearing will stay the commencement of
collection proceedings;
(10) A statement that a final decision on the hearing (if one is
requested) will be issued at the earliest practical date but not later
than 60 days after the filing of the petition requesting the hearing
unless the employee requests and the hearing official grants a delay in
the proceedings.
(11) A statement that an employee knowingly submitting false or
frivolous statements (5 CFR 550.1101), representations, or evidence may
subject the employee to disciplinary procedures under 5 U.S.C. 7501 et
seq. and 5 CFR part 752; penalties under the False Claims Act, 31
U.S.C. 3729-3731; or criminal penalties under 18 U.S.C. 286, 287, 1001,
and 1002;
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made;
(13) A statement that an employee will be promptly refunded any
amount paid or deducted for a debt that is later waived or found not
valid unless there are applicable contractual or statutory provisions
to the contrary; and
(14) The name, address, and phone number of an official who can be
contacted concerning the indebtedness.
Sec. 708.6 Petitions for hearing.
(a) Except as provided in paragraph (d) of this section, an
employee who wants a hearing must file a written petition for a hearing
to be received by the Deputy Staff Director not later than 15 calendar
days from the date of receipt of the Notice of Offset. The petition
must state why the employee believes the determination of the
Commission concerning the existence or amount of the debt is in error.
(b) The petition must be signed by the employee and should identify
and explain with reasonable specificity and brevity the facts,
evidence, and witnesses that the employee believes support his or her
position.
(c) If the employee objects to the percentage of disposable pay to
be deducted from each check, the petition should state the objection
and the reasons for it.
(d) If the employee files a petition for a hearing later than the
15 calendar days from the date of receipt of the Notice of Offset, as
described in paragraph (a) of this section, the hearing official may
accept the request if the employee can show that there was good cause
(such as due to circumstances beyond his or her control or because he
or she was not informed or aware of the time limit) for failing to meet
the deadline date.
(e) An employee will not be granted a hearing and will have his or
her disposable pay offset in accordance with the Deputy Staff
Director's offset schedule if he or she fails to show good cause why he
or she failed to file the petition for a hearing within the stated time
limits.
Sec. 708.7 Hearing procedures.
(a) If an employee timely files a petition for a hearing under
Sec. 708.6, the Deputy Staff Director shall select the time, date, and
location for the hearing.
(b) The hearing shall be conducted by an impartial hearing
official.
(c) The Commission, as the creditor agency, will have the burden of
proving the existence of the debt.
(d) The employee requesting the hearing shall have the burden of
proof to demonstrate that the existence or amount of the debt is in
error.
Sec. 708.8 Written decision.
(a) The hearing official shall issue a written opinion no later
than sixty (60) days after the filing of the petition for hearing; or
no longer than sixty (60) days from the proceedings if an extension has
been granted pursuant to Sec. 708.5(b)(10).
(b) The written opinion will include: A statement of the facts
presented to demonstrate the nature and origin of the
[[Page 17553]]
alleged debt; the hearing official's analysis, findings, and
conclusions; the amount and validity of the debt; and, if applicable,
the repayment schedule.
Sec. 708.9 Coordinating offset with another Federal agency.
(a) The Commission is the creditor agency when the Deputy Staff
Director determines that an employee of another Federal agency owes a
delinquent debt to the Commission. The Deputy Staff Director shall, as
appropriate:
(1) Arrange for a hearing upon the proper petitioning by the
employee;
(2) Certify in writing that the employee of the paying agency owes
the debt, the amount, and basis of the debt, the date on which payment
is due, the date the Government's right to collect the debt first
accrued, and that the Commission's regulations for salary offset have
been approved by the Office of Personnel Management;
(3) If the collection must be made in installments, the Commission,
as the creditor agency, will advise the paying agency of the amount or
percentage of disposable pay to be collected in each installment and
the number and the commencement date of the installments;
(4) Advise the paying agency of the actions taken under 5 U.S.C.
5514(a) and provide the dates on which action was taken, unless the
employee has consented to salary offset in writing or signed a
statement acknowledging receipt of procedures required by law. The
written consent or acknowledgement must be sent to the paying agency;
(5) If the employee is in the process of separating, the Commission
will submit its debt claim to the paying agency as provided in this
part. The paying agency must certify any amounts already collected,
notify the employee, and send a copy of the certification of the monies
already collected and notice of the employee's separation to the
Commission. If the paying agency is aware that the employee is entitled
to Civil Service or Foreign Service Retirement and Disability Fund or
similar payments, it must provide written notification to the agency
has been rendered in favor of the Commission.
(6) If the employee has already separated and all payments due from
the paying agency have been paid, the Assistant Staff Director for
Management may request, unless otherwise prohibited, that money payable
to the employee from the Civil Service Retirement and Disability Fund
or other similar funds be collected by administrative offset. The
Commission will provide the agency responsible for these payments with
a properly certified claim.
(b) The Commission is the paying agency when an employee of this
agency owes a debt to another Federal agency that is the creditor
agency.
(1) Upon receipt of a properly certified debt claim from a creditor
agency, deductions will be scheduled to begin at the next established
pay interval.
(2) The Commission must give the employee written notice that it
has received a certified debt claim from a creditor agency (including
the amount), and the date that deductions will be scheduled to begin
and the amount of the deduction.
(3) The Commission shall not review the merits of the creditor
agency's determination of the amount of the certified claim or of its
validity.
(4) If the employee transfers to another paying agency after the
creditor agency has submitted its debt claim but before the debt is
collected completely, the Commission must certify the total amount
collected to the creditor agency with notice of the employee's
transfer. One copy of this certification must be furnished to the
employee. The creditor agency will submit a properly certified claim to
the new paying agency before collection can be resumed.
(5) When the Commission, as a paying agency, receives an incomplete
debt claim from a creditor agency, it must return the debt claim with a
notice that procedures under 5 U.S.C. 5514 and this subpart must be
provided and a properly certified debt claim received before action
will be taken to collect from the employee's current pay account.
Sec. 708.10 Procedures for salary offset.
(a) Deductions to liquidate an employee's debt will be by the
method and in the amount stated in the Assistant Staff Director for
Management's written notice of intent to collect from the employee's
current pay, unless alternative arrangements for repayment are made.
(b) If the employee filed a petition for a hearing with the
Assistant Staff Director for Management before the expiration of the
period provided, then deductions will begin after the hearing official
has provided the employee with a hearing, and a final written decision
has been rendered in favor of the Commission.
(c) A debt will be collected in a lump-sum if possible.
(d) If an employee is financially unable to pay in one lump sum or
the amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, collection must be made in
installments. The size of the installment deduction(s) will bear a
reasonable relationship to the size of the debt and the deduction will
be established for a period not greater than the anticipated period of
employment. The deduction for the pay intervals for any period must not
exceed 15% of disposable pay unless the employee has agreed in writing
to a deduction of a greater amount. If possible, the installment
payment will be sufficient in size and frequency to liquidate the debt
in no more than three years.
(e) Installment payments may be less than 15 percent of disposable
pay if the Assistant Staff Director for Management determines that the
15 percent deduction would create an extreme financial hardship.
(f) Installment payments of less than $25.00 per pay period or
$50.00 per month, will only be accepted in the most unusual
circumstances.
(g) Unliquidated debts may be offset by the paying agency under 31
U.S.C. 3716 against any financial payment due to a separating employee
including but not limited to final salary payment, retired pay, or lump
sum leave, etc. as of the date of separation to the extent necessary to
liquidate the debt.
(h) If the debt cannot be liquidated by offset from any final
payment due a separated employee it may be recovered by the offset in
accordance with 31 U.S.C. 3716 from any later payments due the former
employee from the United States.
Sec. 708.11 Refunds.
(a) The Commission will refund promptly any amounts deducted to
satisfy debts owned to the Commission when the debt is waived, found
not owed to the Commission, or when directed by an administrative or
judicial order; or the creditor agency will promptly return any amounts
deducted and forwarded by the Commission to satisfy debts owed to the
creditor agency when the debt is waived, found not owed, or when
directed by an administrative or judicial order.
(b) Upon receipt of monies returned in accordance with paragraph
(a) of this section, the Commission will refund the amount to the
current or former employee.
(c) Unless required by law, refunds under this section shall not
bear interest nor shall liability be conferred to the Commission for
debt or refunds owed by other creditor agencies.
Sec. 708.12 Statute of limitations.
If a debt has been outstanding for more than 10 years after the
agency's
[[Page 17554]]
right to collect the debt first accrued, the agency may not collect by
salary offset unless facts material to the government's right to
collect were not known and could not reasonably have been known by the
official or officials who were charged with the responsibility for
discovery and collection of such debts.
Sec. 708.13 Non-waiver of rights by payments.
An employee's involuntary payment of all or any part of a debt
collected under the regulations in this part will not be construed as a
waiver of any rights that employee may have under 5 U.S.C. 5514 or any
other provision of contract or law unless there are statutory or
contractual provisions to the contrary.
Sec. 708.14 Interest, penalties, and administrative costs.
Charges may be assessed for interest, penalties, and administrative
costs.
Debra A. Carr,
Deputy General Counsel.
[FR Doc. 02-7925 Filed 4-9-02; 8:45 am]
BILLING CODE 6335-01-P