**RIN 3265-AA01**

**SUMMARY**: The U.S. Election Assistance Commission is posting for
public comment administrative regulations to implement standards of
conduct for Commission employees, requirements on testimony by
Commission employees and production of Commission records in legal
proceedings, and requirements for nondiscrimination on the basis of
handicap in programs or activities conducted by the Commission.

**DATES**: You must submit comments on or before September 4, 2008.

**ADDRESSES:** You may submit comments by any of the following methods.
Please submit your comments via only one of the methods described.

-   Email: Send comments to <havainfo@eac.gov> with "Comments for
    \[Insert RIN (see above) Here\]" in the subject line.

-   Fax: Send to "EAC Regulations" at (202) 566-3128. Comments sent by
    fax must be limited to 6 pages. This limitation is necessary to
    assure access to the facsimile machine.

-   Mail: Send to "EAC Regulations" at U.S. Election Assistance
    Commission, 1225 New York Avenue, Suite 1100, Washington, DC 20005.
    Comments sent by mail must be unbound, be on paper no larger than
    8.5" by 11"; and be submitted in duplicate. Mailed comments will not
    accepted in electronic form (floppy disk, CD, etc.).

-   Hand Delivery/ Courier: Deliver to Suite 1100, 1225 New York Avenue,
    Washington, D.C. 20005 between 9 a.m. and 5 p.m., Monday through
    Friday, except federal holidays. Comments submitted by hand delivery
    must be unbound, be on paper no larger than 8.5" by 11"; and be
    submitted in duplicate. Comments sent by courier or hand delivery
    will not be accepted in electronic form (floppy disk, CD, etc.).

*Instructions:* All submissions must include the agency name and RIN for
this rulemaking. Please also identify comments on regulatory text by
subpart and section. Note that all comments received will be publicly
posted, including any personal information provided. Please see the
Privacy Act heading below. The EAC will post comments without change
unless the comment contains profanity or material that is prohibited
from disclosure by law.

*Privacy Act*: Anyone is able to search comments received by the name of
the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).

*Public participation:* EAC will consider all comments received on or
before the closing date for comments; and may consider comments filed
late, to the extent practicable. The EAC may, however, issue a final
rule at any time after the close of the comment period.

**FOR FURTHER INFORMATION CONTACT**: Tamar Nedzar, Attorney, U.S.
Election Assistance Commission, 1225 New York Avenue NW, Suite 1100,
Washington, D.C. 20005. Telephone (202) 566-3100.

PART 9409 -- TESTIMONY BY COMMISSION EMPLOYEES RELATING TO OFFICIAL
INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS

§ 9409.1 Purpose and Scope.

§ 9409.2 Applicability.

§ 9409.3 Definitions.

§ 9409.4 Production or disclosure prohibited unless approved by
appropriate Commission official.

§ 9409.5 Procedures for demand for testimony or production of documents.

§ 9409.6 Service of subpoenas or requests.

§ 9409.7 Factors to be considered by the General Counsel.

§ 9409.8 Processing demands or requests.

§ 9409.9 Final determination.

§ 9409.10 Restrictions that apply to testimony.

§ 9409.11 Restrictions that apply to released records.

§ 9409.12 Procedure when a decision is not made prior to the time a
response is required.

§ 9409.13 Procedures when the General Counsel directs an employee not to
testify or provide documents.

§ 9409.14 Fees.

§ 9409.15 Penalties

**Authority**: 44 U.S.C. § 3102

[§ 9409.1 Purpose and Scope]{.underline}.

\(a\) This part sets forth policies and procedures you must follow when
you submit a demand or request to an employee of the United States
Election Assistance Commission to produce official records and
information, or provide testimony relating to official information, in
connection with a legal proceeding. You must comply with these
requirements when you request the release or disclosure of official
records and information.

\(b\) The Commission intends these provisions to:

\(1\) Promote economy and efficiency in its programs and operations;

\(2\) Minimize the possibility of involving the Commission in
controversial issues not related to its functions;

\(3\) Maintain the Commission\'s impartiality among private litigants
where the Commission is not a named party; and

\(4\) Protect sensitive, confidential information and the deliberative
processes of the Commission.

\(c\) In providing for these requirements, the Commission does not waive
the sovereign immunity of the United States.

\(d\) This part is intended only to provide guidance for the internal
operations of the Commission and to inform the public about Commission
procedures concerning the service of process and responses to demands or
requests. The procedures specified in this part, or the failure of any
Commission employee to follow the procedures specified in this part, are
not intended to create, do not create, and may not be relied upon to
create a right or benefit, substantive or procedural, enforceable at law
by a party against the United States.

[§ 9409.2 Applicability]{.underline}.

\(a\) This part applies to demands and requests to employees for factual
or expert testimony relating to official information, or for production
of official records or information, in legal proceedings in which the
Commission is not a named party. However, it does not apply to:

\(1\) Demands upon or requests for a Commission employee to testify as
to facts or events that are unrelated to his or her official duties or
that are unrelated to the functions of the Commission;

\(2\) Demands upon or requests for a former Commission employee to
testify as to matters in which the former employee was not directly or
materially involved while at the Commission;

\(3\) Requests for the release of records under the Freedom of

Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and

\(4\) Congressional demands and requests for testimony or records.

[§ 9409.3 Definitions]{.underline}.

As used in this part, the term---

[Commission]{.underline} means the U.S. Election Assistance Commission,
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 *et
seq*.

[Commission employee or employee]{.underline} means:

\(a\) Any current or former officer or employee of the Commission;

\(b\) Any other individual hired through contractual agreement by or on
behalf of the Commission or who has performed or is performing services
under an agreement for the Commission; and

\(c\) Any individual who served or is serving in any consulting or
advisory capacity to the Commission, whether formal or informal.

\(d\) This definition does not include persons who are no longer
employed by the Commission and who are retained or hired as expert
witnesses or who agree to testify about general matters, matters
available to the public, or matters with which they had no specific
involvement or responsibility during their employment with the
Commission.

[Demand]{.underline} means a subpoena, or an order or other command of a
court or other competent authority, for the production, disclosure, or
release of records or for the appearance and testimony of a Commission
employee that is issued in a legal proceeding.

[General Counsel]{.underline} means the General Counsel of the
Commission or a person to whom the General Counsel has delegated
authority under this part.

[Legal proceeding]{.underline} means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer, or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.

[Records or official records and information]{.underline} means:

\(a\) All documents and materials that are Commission records under the
Freedom of Information Act (5 U.S.C. 552);

\(b\) All other documents and materials contained in files of the
Commission; and

\(c\) All other information or materials acquired by a Commission
employee in the performance of his or her official duties or because of
his or her official status.

[Request]{.underline} means any informal request, by whatever method,
for the production of records and information or for testimony that has
not been ordered by a court or other competent authority.

[Testimony]{.underline} means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.

[§ 9409.4 Production or disclosure prohibited unless approved by
appropriate Commission official]{.underline}.

\(a\) No employee or former employee of the Commission shall, in
response to a demand of a court or other authority, produce a record or
disclose any information relating to any record of the Commission, or
disclose any information or produce any material acquired as part of the
performance of his official duties or because of his official status
without the prior, written approval of the General Counsel of the
Commission.

\(b\) Any expert or opinion testimony by a former employee of the
Commission shall be excepted from the requirements of this part where
the testimony involves only general expertise gained while employed at
the Commission.

[§ 9409.5 Procedures for demand for testimony or production of
documents]{.underline}.

\(a\) A demand directed to the Commission for the testimony of a
Commission employee or for the production of documents shall be served
in accordance with the Federal Rules of Civil Procedure, Federal Rules
of Criminal Procedure, or applicable State procedures and shall be
directed to the General Counsel, U.S. Election Assistance Commission,
1225 New York Avenue, NW, Suite 1100, Washington, D.C. 20005. Acceptance
of a demand shall not constitute an admission or waiver with respect to
jurisdiction, propriety of service, improper venue, or any other defense
in law or equity available under the applicable laws or rules.

\(b\) If a subpoena is served on the Commission or a Commission employee
before submitting a written request and receiving a final determination,
the Commission will oppose the subpoena on grounds that the request was
not submitted in accordance with this part.

\(c\) A written request must contain the following information:

\(1\) The caption of the legal proceeding, docket number, name and
address of the court or other authority involved; and the procedural
posture of the legal proceeding.

\(2\) A copy of the complaint or equivalent document setting forth the
assertions in the case and any other pleading or document necessary to
show relevance;

\(3\) A list of categories of records sought, a detailed description of
how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the testimony
or records sought;

\(4\) A statement as to how the need for the information outweighs the
need to maintain any confidentiality of the information and outweighs
the burden on the Commission to produce the records or provide
testimony;

\(5\) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than a Commission employee, such as a
retained expert;

\(6\) If testimony is requested, the intended use of the testimony, a
general summary of the desired testimony, and a showing that no document
could be provided and used in lieu of testimony;

\(7\) A description of all prior decisions, orders, or pending motions
in the case that bear upon the relevance of the requested records or
testimony;

\(8\) The name, address, and telephone number of counsel to each party
in the case;

\(9\) An estimate of the amount of time that the requester and other
parties will require of each Commission employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding; and

\(10\) Whether travel by the Commission employee is required to provide
the testimony; or, in lieu of in-person testimony, whether a deposition
may be taken at the employee's duty station.

\(d\) The Commission reserves the right to require additional
information to complete a request where appropriate.

\(e\) A request should be submitted at least 45 days before the date
that records or testimony is required. Requests submitted in less than
45 days before records or testimony is required must be accompanied by a
written explanation stating the reasons for the late request and the
reasons for expedited processing.

\(f\) Failure to cooperate in good faith to enable the General Counsel
to make an informed decision may serve as the basis for a determination
not to comply with a request.

\(g\) Notification to the General Counsel:

\(1\) Employees shall immediately refer all inquiries and demands made
on the Commission to the General Counsel.

\(2\) An employee who receives a subpoena shall immediately forward the
subpoena to the General Counsel. The General Counsel will determine the
manner in which to respond to the subpoena.

[§9409.6 Service of subpoenas or requests]{.underline}.

Subpoenas or requests for official records or information or testimony
must be served on the General Counsel, U.S. Election Assistance
Commission, 1225 New York Avenue, NW, Suite 1100, Washington, DC 20005.

[§ 9409.7 Factors to be considered by the General Counsel]{.underline}.

The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response to
a demand or request. Among the relevant factors that the General Counsel
may consider in making this decision are whether:

\(a\) The purposes of this part are met;

\(b\) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;

\(c\) The Commission has an interest in the decision that may be
rendered in the legal proceeding;

\(d\) Allowing such testimony or production of records would assist or
hinder the Commission in performing its statutory duties or use
Commission resources where responding to the demand or request will
interfere with the ability of Commission employees to do their work;

\(e\) Allowing such testimony or production of records would be in the
best interest of the Commission or the United States;

\(f\) The records or testimony can be obtained from other sources;

\(g\) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand or request
arose;

\(h\) Disclosure would violate a statute, Executive order or regulation;

\(i\) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential commercial or
financial information, otherwise protected information, or information
which would otherwise be inappropriate for release;

\(j\) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceedings, or compromise constitutional
rights;

\(k\) Disclosure would result in the Commission appearing to favor one
litigant over another;

\(l\) Disclosure relates to documents that were produced by another
agency;

\(m\) A substantial Government interest is implicated;

\(n\) The demand or request is within the authority of the party making
it; and

\(o\) The demand or request is sufficiently specific to be answered.

[§ 9409.8 Processing demands or requests]{.underline}.

\(a\) After service of a demand or request to testify, the General
Counsel will review the demand or request and, in accordance with the
provisions of this part, determine whether, or under what conditions, to
authorize the employee to testify on matters relating to official
information and/or produce official records and information.

\(b\) The Commission will process requests in the order in which they
are received. Absent exigent or unusual circumstances, the Commission
will respond within 45 days from the date a request is received. The
time for response will depend upon the scope of the request.

\(c\) The General Counsel may grant a waiver of any procedure described
by this part where a waiver is considered necessary to promote a
significant interest of the Commission or the United States or for other
good cause.

[§ 9409.9 Final determination]{.underline}.

The General Counsel will make the final determination on demands and
requests to employees for production of official records and information
or testimony. All final determinations are within the sole discretion of
the General Counsel. The General Counsel will notify the requester and
the court or other authority of the final determination, the reasons for
the grant or denial of the demand or request, and any conditions that
the General Counsel may impose on the release of records or information,
or on the testimony of a Commission employee.

[§ 9409.10 Restrictions that apply to testimony]{.underline}.

\(a\) The General Counsel may impose conditions or restrictions on the
testimony of Commission employees including, for example, limiting the
areas of testimony or requiring the requester and other parties to the
legal proceeding to agree that the transcript of the testimony will be
kept under seal or will only be used or made available in the particular
legal proceeding for which testimony was requested. The General Counsel
may also require a copy of the transcript of testimony at the
requester's expense.

\(b\) The Commission may offer the employee's written declaration in
lieu of testimony.

\(c\) If authorized to testify under this part, an employee may testify
as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not:

\(1\) Disclose confidential or privileged information; or

\(2\) For a current Commission employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's official
duties or the functions of the Commission unless testimony is being
given on behalf of the United States.

[§ 9409.11 Restrictions that apply to released records]{.underline}.

\(a\) The General Counsel may impose conditions or restrictions on the
release of official records and information, including the requirement
that parties to the proceeding obtain a protective order or execute a
confidentiality agreement to limit access and any further disclosure.
The terms of the protective order or confidentiality agreement must be
acceptable to the General Counsel. In cases where protective orders or
confidentiality agreements have already been executed, the Commission
may condition the release of official records and information on an
amendment to the existing protective order or confidentiality agreement.

\(b\) If the General Counsel so determines, original Commission records
may be presented for examination in response to a demand or request, but
they are not to be presented as evidence or otherwise used in a manner
by which they could lose their identity as official Commission records,
nor are they to be marked or altered. In lieu of the original records,
certified copies will be presented for evidentiary purposes (see 28
U.S.C. 1733).

[§ 9409.12 Procedure when a decision is not made prior to the time a
response is required]{.underline}.

If a response to a demand or request is required before the General
Counsel's decision is received, a U.S. attorney or a Commission attorney
designated for the purpose shall appear with the employee or former
employee of the Commission upon whom the demand has been made and shall
furnish the court or other authority with a copy of the regulations
contained in this part and inform the court or other authority that the
demand has been, or is being, as the case may be, referred for the
prompt consideration of the appropriate Commission official and shall
respectfully request the court or authority to stay the demand pending
receipt of the requested instructions.

[§ 9409.13 Procedures when the General Counsel directs an employee not
to testify or provide documents]{.underline}.

\(a\) If the General Counsel determines that an employee or former
employee should not comply with a subpoena or other request for
testimony or the production of documents, the General Counsel will so
inform the employee and the party who submitted the subpoena or made the
request.

\(b\) If, despite the determination of the General Counsel that
testimony should not be given and/or documents not be produced, a court
of competent jurisdiction or other appropriate authority orders the
employee or former employee to testify and/or produce documents; the
employee shall notify the General Counsel of such order.

\(1\) If the General Counsel determines that no further legal review of,
or challenge to, the order will be sought, the employee or former
employee shall comply with the order.

\(2\) If the General Counsel determines to challenge the order, or that
further legal review is necessary, the employee or former employee
should not comply with the order. Where necessary, the employee should
appear at the time and place set forth in the subpoena. If legal counsel
cannot appear on behalf of the employee, the employee should produce a
copy of this part and respectfully inform the legal tribunal that he/she
has been advised by counsel not to provide the requested testimony
and/or produce documents. If the legal tribunal rules that the subpoena
must be complied with, the employee shall respectfully decline to
comply, citing this section and [United States ex rel. Touhy v.
Ragen]{.underline}, 340 U.S. 462 (1951).

[§ 9409.14 Fees]{.underline}.

\(a\) [Generally]{.underline}. The General Counsel may condition the
production of records or appearance for testimony upon advance payment
of a reasonable estimate of the costs to the Commission.

\(b\) [Fees for records]{.underline}*.* Requesters will reimburse the
Commission for the actual costs of time and resources spent searching,
reviewing and duplicating records. Fees for producing records will
include fees for searching, reviewing, and duplicating records, costs of
attorney time spent in reviewing the demand or request, and expenses
generated by materials and equipment used to search for, produce, and
copy the responsive information. The Commission will charge fees at the
salary rate(s) (basic pay plus 16 percent) of employee time spent
searching, reviewing, and duplicating records. Fees for duplication will
be the same as those charged by the Commission for records disclosed
under the Freedom of Information Act (11 C.F.R. 9405), except that the
Commission will charge for the actual costs for each page of duplication
and will not provide the first 100 pages for free.

\(c\) [Witness fees]{.underline}*.* Fees for attendance by a witness
will include fees, expenses, and allowances prescribed by the court\'s
rules. If no such fees are prescribed, witness fees will be determined
based upon the rule of the Federal district court closest to the
location where the witness will appear. The fees will include cost of
time spent by the witness to prepare for testimony, in travel, and for
attendance in the legal proceeding.

\(d\) [Payment of fees]{.underline}*.* Witness fees shall be paid for
current Commission employees and any records certification fees by
submitting to the General Counsel a check or money order for the
appropriate amount made payable to the Treasury of the United States. In
the case of testimony by former Commission employees, applicable fees
shall be paid directly to the former employee in accordance with 28
U.S.C. 1821 or other applicable statutes.

\(e\) [Certification (authentication) of copies of
records]{.underline}*.* The Commission may certify that records are true
copies to facilitate their use as evidence. To obtain certification a
request for certified copies shall be made to the Commission at least 45
days before the date the copies will be needed. The request should be
sent to the General Counsel, U.S. Election Assistance Commission, 1225
New York Avenue, N.W., Washington, D.C. 20005.

\(f\) [Waiver or reduction of fees]{.underline}*.* The General Counsel,
in his or her sole discretion, may, upon a showing of reasonable cause,
waive or reduce any fees in connection with the testimony, production,
or certification of records.

[§ 9409.15 Penalties]{.underline}.

\(a\) An employee who discloses official records or information or gives
testimony relating to official information, except as expressly
authorized by the Commission or as ordered by a Federal court after the
Commission has had the opportunity to be heard, may face the penalties
provided in 18 U.S.C. 641 and other applicable laws. Former Commission
employees are subject to the restrictions and penalties of 18 U.S.C. 207
and 216.

\(b\) A current Commission employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action in addition to any penalties assessed under
paragraph (a) of this section.

##### PART 9411 -- STANDARDS OF CONDUCT

§ 9411.1 Cross-reference to executive branch-wide regulations

**Authority**: 5 CFR parts 2634-38; 5 CFR part 2641; 5 CFR parts 734-35,

**[§ 9411.1 Cross-reference to executive branch-wide
regulations]{.underline}.**

\(a\) Employees of the U.S. Election Assistance Commission are subject
to the following standards of conduct and ethical requirements: (1)
Executive Branch Financial Disclosure, Qualified Trusts, and
Certificates of Divestiture as provided in 5 CFR part 2634, (2)
Standards of Ethical Conduct for Employees of the Executive Branch as
provided in 5 CFR part 2635, (3) Limitations on Outside Earned Income,
Employment and Affiliations for Certain Noncareer Employees as provided
in 5 CFR part 2636, (4) Regulations Concerning Post Employment Conflict
of Interest as provided in 5 CFR part 2637, (5) Interpretation,
Exemptions and Waiver Guidance Concerning 18 U.S.C. 208 (Acts Affecting
a Personal Financial Interest) as provided in 5 CFR part 2638, (6)
Post-Employment Conflict of Interest Restrictions as provided in 5 CFR
part 2641, (7) Political Activities of Federal Employees as provided in
5 CFR part 734, and (8) Employee Responsibilities and Conduct as
provided in 5 CFR part 735.

\(b\) For purposes of this part, employee shall have the definition
given to it by each standard of conduct or ethical requirement noted
above.

**PART 9420 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR
ACTIVITIES CONDUCTED BY THE U.S. ELECTION ASSISTANCE COMMISSION**

[§ 9420.1
Purpose](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.1%237:1.1.1.1.20.0.41.1)
and scope.

§ 9420.2 Definitions.

[§ 9420.3 General prohibitions against
discrimination.](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.2%237:1.1.1.1.20.0.41.2)

[§ 9420.4](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
Program accessibility: Discrimination prohibited.

[§ 9420.5
Program](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
accessibility: Existing facilities.

[§ 9420.6
Program](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
accessibility: New construction and alterations.

[§ 9420.7
Communications](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3).

[§ 9420.8 Compliance
procedures.](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)

**Authority**: 29 U.S.C. 794

**[§ 9420.1 Purpose and scope]{.underline}**.

This part sets forth the nondiscrimination policy of the U.S. Election
Assistance Commission to prohibit discrimination on the basis of
handicap in programs or activities conducted by the Commission.

**[§ 9420.2 Definitions]{.underline}**.

As used in this part, the term\--

[Auxillary aids]{.underline} means services, including attendant
services, or devices that enable handicapped persons, including those
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 Commission. For example, auxiliary aids
useful for disabled persons with impaired vision include readers,
brailled materials, audio recordings, telecommunications devices and
other similar services and devices. Auxiliary aids useful for disabled
persons with impaired hearing include telephone handset amplifiers,
telephones compatible with hearing aids, telecommunication devices for
deaf persons (TDD\'s), interpreters, notetakers, written materials, and
other similar services and devices.

[Commission]{.underline} means the U.S. Election Assistance Commission,
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 [et
seq]{.underline}.

[Complete complaint]{.underline} means a written statement that contains
the complainant's name and address and describes the complaintant's name
and address and describes the Commission's actions in sufficient detail
to inform the Commission of the nature and date of the alleged violation
of section 504, as defined in this part. 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.

[Facility]{.underline} means all or any portion of buildings,
structures, equipment, roads, walks, parking lots, rolling stock or
other conveyances, or other real or personal property whether owned,
leased or used on some other basis by the Commission.

[Handicapped person]{.underline} means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such impairment, or is regarded as having
such impairment. As used in this definition, the phrase:

\(1\) [Physical or mental impairment]{.underline} includes:

\(i\) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one of more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or

\(ii\) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities. 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; and drug addition and
alcoholism.

\(2\) [Major life activities]{.underline} include 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]{.underline} 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]{.underline} means:

\(i\) Has a physical or mental impairment that does not substantially
limit major life activities, but is treated by the Commission 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
the impairment; or

\(iii\) Has none of the impairments defined in paragraph (1) of this
definition, but is treated by the Commission as having an impairment.

[Qualified handicapped person means]{.underline} (1) with respect to any
Commission program or activity under which a person is required to
perform services or to achieve a level of accomplishment, a handicapped
person who, with reasonable accommodation, meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity; and (2) with respect to any other program or activity, a
handicapped person who meets essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.

[Section 504]{.underline} means section 504 of the Rehabilitation Act of
1973 (Pub. L. 93-112, 87 Stat. 394), as amended by the Rehabilitation
Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617) and the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Act of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part,
section 504 applies only to programs or activities conducted by the
Commission and not to any federally assisted programs or activities that
it administers.

**[§ 9420.3 General prohibitions against discrimination]{.underline}.**

> \(a\) No qualified handicapped person shall, on the basis of handicap,
> be excluded

from participation in, be denied the benefits of, or otherwise be
subjected to discrimination under any program or activity conducted by
the Commission.

(b)(1) The Commission, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangement,
on the basis of handicap---

\(i\) Deny a qualified handicapped person the opportunity to participate
in or benefit from the aid, benefit, or service;

\(ii\) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;

\(iii\) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;

\(iv\) Provide different or separate aids, benefits, or services to
handicapped persons or to any class of handicapped persons that is
provided to others unless such action is necessary to provide qualified
handicapped persons with aids, benefits, or services that are as
effective as those provided to others;

\(v\) Deny a qualified handicapped person the opportunity to participate
as a member of planning or advisory boards; or

\(vi\) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving aid, benefit, or service.

\(2\) The Commission may not deny a qualified handicapped person 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 Commission may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would---

\(i\) Subject qualified handicapped persons to discrimination on the
basis of handicap; or

\(ii\) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.

\(4\) The Commission may not, in determining the site or location of a
facility, make selections the purpose or effect of which would---

\(i\) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the Commission; or

\(ii\) Defeat or substantially impair the accomplishment of objectives
of a program or activity with respect to handicapped persons.

\(5\) The Commission, in selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.

\(6\) The Commission may not administer a certification program in a
manner that subjects qualified handicapped persons to discrimination on
the basis of handicap, nor may the Commission establish requirements for
the programs or activities of certified entities that subject qualified
handicapped persons to discrimination on the basis of handicap. The
programs or activities of entities that are certified by the Commission
are not, themselves, covered by this part.

\(c\) The exclusion of non-handicapped persons from the benefits of a
program limited by Federal statute or Executive Order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive Order to a different
class of handicapped persons is not prohibited by this part.

\(d\) The Commission will administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.

[[**§ 9420.4
Program**](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
**accessibility: Discrimination prohibited**.]{.underline}

Except as otherwise provided in 11 C.F.R. 9420.6 and 11 C.F.R. 9420.7,
no qualified handicapped person shall be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the Commission
because its facilities are inaccessible to or unusable by handicapped
persons.

[[**§ 9420.5**](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
**Program accessibility: Existing facilities**.]{.underline}

\(a\) General. The Commission will operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not\--

\(1\) Necessarily require the Commission to make each of its existing
facilities accessible to and usable by handicapped persons;

\(2\) Require the Commission 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. The
Commission has the burden of proving that compliance with 11 C.F.R.
9420.6(a) would result in such alterations or burdens. The decision that
compliance would result in such alteration or burdens must be made by
the Commission 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 Commission will take any other action that would not result
in such an alteration or such a burden but would nevertheless ensure
that handicapped person receive the benefits and services of the program
or activity.

\(b\) Methods. The Commission may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
handicapped persons. The Commission is not required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with this section. The Commission, in making
alterations to existing buildings will meet accessibility requirements
to the extent compelled by the Architectural Barriers Act of 1968, as
amended, 42 U.S.C. 4151-4157, and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the Commission will give priority to those methods that offer
programs and activities to qualified handicapped persons in the most
integrated setting appropriate.

\(c\) Time period for compliance. The Commission shall comply with the
obligations established under this section within sixty days of the
effective date of this part except that where structural changes in
facilities are undertaken, such changes will be made within three years
of the effective date of this part, but in any event as expeditiously as
possible.

\(d\) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Commission will develop, within six months of the effective date of this
part, a transition plan setting forth the steps necessary to complete
such changes. The plan will be developed with the assistance of
interested persons, including handicapped persons and organizations
representing handicapped persons. A copy of the transition plan will be
made available for public inspection. The plan will, at a minimum---

\(1\) Identify physical obstacles in the Commission's facilities that
limit the accessibility of its programs or activities to handicapped
persons;

\(2\) Describe in detail the methods that will be used to make the
facilities accessible;

\(3\) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;

\(4\) Indicate the official responsible for implementation of the plan;
and

\(5\) Identify the person or groups with whose assistance the plan was
prepared.

[[**§ 9420.6**](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)
**Program accessibility: New construction and
alterations**]{.underline}.

Each building or part of a building that is constructed or altered by,
on behalf of, or for the use of the Commission shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of the
Architectural Barriers Act, 42 U.S.C. 4151-4157 apply to buildings
covered by this section.

**[[§ 9420.7
Communications](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3).]{.underline}**

\(a\) The Commission will take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.

\(1\) The commission will furnish appropriate auxiliary aids when
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Commission.

\(i\) In determining what type of auxiliary aid is necessary, the
Commission will give primary consideration to the requests of the
handicapped person.

\(ii\) Where the Commission communicates with applicants and
beneficiaries by telephone, telecommunication devices for deaf persons
(TDDs) or equally effective telecommunication systems will be used.

\(b\) The Commission will 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.

\(c\) To the extent that the Commission controls signage at its
facilities, the Commission will provide signage at a primary entrance to
each of its inaccessible facilities, directing users to a location at
which they can obtain information about accessible facilities. To the
extent practicable, the international symbol for accessibility shall be
used at each primary entrance of an accessible facility.

\(d\) The Commission will take appropriate steps to provide handicapped
persons with information regarding their section 504 rights under the
Commission's programs or activities.

\(e\) This section does not require the Commission 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. The Commission has the burden of proving that compliance with
this section would result in such alterations or burdens. The decision
that compliance would result in such alteration or burdens must be made
by the Commission after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the
Commission will take any other action that would not result in such an
alteration or such a burden but would nevertheless ensure that, to the
maximum extent possible, handicapped persons receive the benefits and
services of the program or activity.

[**[§ 9420.8 Compliance
procedures.]{.underline}**](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=3a3739b028993a1a3e133f9f85310721&rgn=div5&view=text&node=7:1.1.1.1.20&idno=7#7:1.1.1.1.20.0.41.3%237:1.1.1.1.20.0.41.3)

\(a\) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the Commission.

\(b\) The Commission will process complaints alleging violations of
section 504 with respect to employment according to the procedures
established in 29 C.F.R. 1614.101 et seq. 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 Rehabilitation Act Officer.

(d)(1) Requirement to file complaint with the Rehabilitation Act
Officer.

\(i\) Any person who believes that he or she or any specific class of
persons of which he or she is a member has been subjected to
discrimination prohibited by this part may file a complaint with the
Rehabilitation Act Officer.

\(ii\) Any person who believes that a denial of his or her services will
result or has resulted in discrimination prohibited by this part may
file a complaint with the Rehabilitation Act Officer.

\(2\) Timing of filing of complaint. All complete complaints must be
filed within 180 days of the alleged act of discrimination. The
Commission may extend this period for good cause.

\(3\) Complaints filed under this part shall be addressed to the
Rehabilitation Act Officer, U.S. Election Assistance Commission, 1225
New York Avenue, N.W., Suite 1100, Washington, DC 20005.

\(e\) The Commission will notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.D.C. 792), are not readily
accessible and usable to handicapped persons.

\(f\) Review of complaints.

\(1\) The Commission will accept and investigate a complete complaint
that is filed in accordance with paragraph (d) of this section and over
which it has jurisdiction. The Rehabilitation Act Officer will notify
the complainant and the respondent of receipt and acceptance of the
complaint.

\(2\) If the Rehabilitation Act Officer receives a complaint that is not
complete, he or she will notify the complainant within 30 days of
receipt of the incomplete complaint, that additional information is
needed. If the complainant fails to complete the complaint within 30
days of receipt of this notice, the Rehabilitation Act Officer will
dismiss the complaint without prejudice.

\(3\) If the Rehabilitation Act Officer receives a complaint over which
the Commission does not have jurisdiction, the Commission will promptly
notify the complainant and will make reasonable efforts to refer the
complaint to the appropriate government entity.

\(g\) Within 180 days of receipt of a complete complaint for which it
has jurisdiction, the Commission will 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
Commission of a letter required by § 9420.9(g). The Commission may
extend this time for good cause.

\(i\) Timely appeals to the Commission shall be addressed to the
Rehabilitation Act Officer. U.S. Election Assistance Commission, 1225
New York Avenue, N.W., Suite 1100, Washington, DC 20005.

\(j\) The Commission will notify the complainant of the results of the
appeal within 60 days of the receipt of the request. If the Commission
determines it needs additional information 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 Commission may extend the time limits in paragraphs (g) and
(j) of this section for good cause.

\(l\) The Commission may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated.