Title 41—Public Contracts and Property Management--Volume 1
PART 105-1—INTRODUCTION
§ 105-56.002   Excluded debts or claims.
This subpart does not apply to the following:
(a) Debts or claims arising under the Internal Revenue Code of 1954 as amended (26 U.S.C. 1 et seq. ), the Social Security Act (42 U.S.C. 301 et seq. ), or the tariff laws of the United States.
(b) Any case where collection of a debt by salary offset is explicitly provided for or prohibited by another statute. Debt collection procedures under other statutory authorities, however, must be consistent with the provisions of the Federal Claims Collection Standards, defined at paragraph (h) of § 105-56.003.
(c) An employee election of coverage or of a change of coverage under a Federal benefits program that requires periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less. However, if the amount to be recovered was accumulated over more than four pay periods, the procedures under § 105-56.004 of this subpart will apply.
(d) Routine adjustment in pay or allowances that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment and, at the time of the adjustment, or as soon after as possible, the employee is provided written notice of the nature and amount of the adjustment.
(e) Any adjustment to collect a debt amounting to $50 or less, if, at the time of the adjustment, or as soon after as possible, the employee is given written notice of the nature and amount of the adjustment and a point of contact for contesting the adjustment.
(f) Debts or claims arising from the accrual of unpaid Health Benefits Insurance (HBI) premiums as the result of an employee's election to continue health insurance coverage during periods of leave without pay (LWOP), or when pay is insufficient to cover premiums. Debt collection procedures for unpaid HBI are covered under 5 CFR part 890, subpart E.
§ 105-56.003   Definitions.
The following definitions apply to this subpart:
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means withholding funds payable by the United States (including funds payable by the United States on behalf of a State government) to, or held by the United States for, a person to satisfy a claim.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in the executive, judicial, or legislative branch of the Federal government, including government corporations.
(c) Business day means Monday through Friday, excluding Federal legal holidays. For purposes of computation, the last day of the period will be included unless it is a Federal legal holiday.
(d) Creditor agency means any agency that is owed a debt, including a debt collection center when acting on behalf of a creditor agency in matters pertaining to the collection of a debt.
(e) Cross-serviced agency means an arrangement between GSA and another agency whereby GSA provides financial support services to the other agency on a reimbursable basis. Financial support services can range from simply providing computer and software timesharing services to full-service administrative processing.
(f) Disposable pay means the amount that remains from an employee's Federal pay after required deductions for Federal, State and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the Thrift Savings Plan (TSP); premiums for life (excluding amounts deducted for supplemental coverage) and health insurance benefits; Internal Revenue Service (IRS) tax levies; and such other deductions that may be required by law to be withheld.
(g) Employee means any individual employed by GSA or a cross-serviced agency of the executive, legislative, or judicial branches of the Federal Government, including Government corporations.
(h) FCCS means the Federal Claims Collection Standards jointly published by the Department of Justice and the Department of the Treasury at 31 CFR parts 900 through 904.
(i) Financial hardship means an inability to meet basic living expenses for goods and services necessary for the survival of the debtor and his or her spouse and dependents.
(j) For the purposes of the standards in this subpart, unless otherwise stated, the term “Administrator” refers to the Administrator of General Services or the Administrator's delegate.
(k) For the purposes of the standards in this subpart, the terms “claim” and “debt” are synonymous and interchangeable. They refer to an amount of money, funds, or property that has been determined by GSA to be due the United States from an employee of GSA or a cross-serviced agency from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures and all other similar sources, including debt administered by a third party as an agent for the Federal Government. For the purposes of administrative offset under 31 U.S.C. 3716, the terms “claim” and “debt” include an amount of money, funds, or property owed by an employee to a State (including past-due support being enforced by a State), the District of Columbia, American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.
(l) For the purposes of the standards in this subpart, unless otherwise stated, the terms “GSA” and “Agency” are synonymous and interchangeable.
(m) Hearing official means a Board Judge of the Civilian Board of Contract Appeals (CBCA).
(n) Pay means basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an individual not entitled to basic pay, other authorized pay.
(o) Pre-offset hearing means a review of the documentary evidence concerning the existence and/or amount of a debt, and/or the terms of a repayment schedule, provided such repayment schedule is established other than by a written agreement entered into pursuant to this subpart. If the hearing official determines that the issues in dispute cannot be resolved solely by review of the written record, such as when the validity of the debt turns on the issue of credibility or veracity, an oral hearing may be provided.
(p) Program official means a supervisor or management official of the employee's service, staff office, cross-serviced agency, or other designated Agency officials.
(q) Reconsideration means a request by the employee to have a secondary review by GSA of the existence and/or amount of the debt, and/or the proposed offset schedule.
(r) 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.
(s) Waiver means the cancellation, remission, forgiveness, or non-recovery of a debt or debt-related charge as permitted or required by law.
§ 105-56.004   Pre-offset notice.
An employee must be given written notice from the appropriate program official at least 30 days in advance of initiating a deduction from disposable pay informing him or her of—
(a) The nature, origin and amount of the indebtedness determined by GSA or a cross-serviced agency to be due;
(b) The intention of GSA to initiate proceedings to collect the debt through deductions from the employee's current disposable pay and other eligible payments;
(c) The amount (stated as a fixed dollar amount or as a percentage of pay, not to exceed 15 percent of disposable pay), frequency, proposed beginning date, and duration of the intended deductions;
(d) GSA's policy concerning how interest, penalties, and administrative costs are assessed (see 41 CFR part 105-55.017), including a statement that such assessments will be made unless excused under 31 U.S.C. 3717(h) and 31 CFR 901.9(g) and (h);
(e) The employee's right to inspect and copy GSA records relating to the debt, if records of the debt are not attached to the notice, or if the employee or his or her representative cannot personally inspect the records, the right to receive a copy of such records. Any costs associated with copying the records for the debtor will be borne by the debtor. The debtor must give a minimum of three (3) business days notice in advance to GSA of the date on which he or she intends to inspect and copy the records involved;
(f) A demand for repayment providing for an opportunity, under terms agreeable to GSA, for the employee to establish a schedule for the voluntary repayment of the debt by offset or to enter into a written repayment agreement of the debt in lieu of offset;
(g) The employee's right to request a waiver (see § 105-56.005(b) of this subpart);
(h) The employee's right to request reconsideration by the Agency of the existence and/or amount of the debt, and/or the proposed offset schedule;
(i) The employee's right to a pre-offset hearing conducted by a hearing official, arranged by the appropriate program official, if a request is filed as prescribed by § 105-56.006 of this subpart;
(j) The method and time period for requesting a hearing, including a statement that the timely filing of a request for hearing will stay the commencement of collection proceedings;
(k) The issuance of a final decision on the hearing, if requested, at the earliest practicable date, but no later than 60 days after the request for hearing is filed, unless the employee requests and the hearing official grants a delay in the proceedings;
(l) The risk that any knowingly false or frivolous statements, representations, or evidence may subject the employee to—
(1) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 CFR part 752, or any other applicable statutes or regulations;
(2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or any other applicable statutory authority; or
(3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or any other applicable statutory authority;
(m) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(n) The employee's right to a prompt refund if amounts paid or deducted are later waived or found not owed, unless otherwise provided by law (see § 105-56.012 of this subpart);
(o) The specific address to which all correspondence must be directed regarding the debt.
§ 105-56.005   Employee response.
(a) Voluntary repayment agreement. An employee may submit a request to the appropriate program official who signed the pre-offset notice to enter into a written repayment agreement of the debt in lieu of offset. The request must be made within 7 days of receipt of notice under § 105-56.004 of this subpart. The agreement must be in writing, signed by both the employee and the appropriate program official making the notice, and a signed copy must be sent to the appropriate Finance Center serving the program activity. Acceptance of such an agreement is discretionary with the Agency. An employee who enters into such an agreement may, nevertheless, seek a waiver under paragraph (b) of this section.
(b) Waiver. An employee may submit a signed waiver request of overpayment of pay or allowances (e.g., 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716) to the GSA National Payroll Center (NPC). When an employee requests waiver consideration, further collection on the debt may be suspended until a final administrative decision is made on the waiver request. During the period of any suspension, interest, penalties and administrative charges may be held in abeyance. GSA will not duplicate, for purposes of salary offset, any of the notices/procedures already provided the debtor prior to a request for waiver.
(c) Reconsideration. (1) An employee may seek a reconsideration of GSA's determination regarding the existence and/or amount of the debt. The request must be submitted to the appropriate program official indicated in the pre-offset notice, within 7 days of receipt of notice under § 105-56.004 of this subpart. Within 20 days of receipt of this notice, the employee must submit a detailed statement of reasons for reconsideration that must be accompanied by supporting documentation.
(2) An employee may request a reconsideration of the proposed offset schedule. The request must be submitted to the appropriate program official indicated in the pre-offset notice, within 7 days of receipt of notice under § 105-56.004 of this subpart. Within 20 days of receipt of this notice, the employee must submit an alternative repayment schedule accompanied by a detailed statement, supported by documentation, evidencing financial hardship resulting from GSA's proposed schedule. Acceptance of the request is at GSA's discretion. GSA will notify the employee in writing of its decision concerning the request to reduce the rate of an involuntary deduction.
§ 105-56.006   Petition for pre-offset hearing.
(a) The employee may request a pre-offset hearing by filing a written petition with the appropriate program official indicated in the pre-offset notice, within 15 days of receipt of the written notice. The petition must state why the employee believes GSA's determination concerning the existence and/or amount of the debt is in error, set forth any objections to the involuntary repayment schedule, and, if the employee is seeking an oral hearing, set forth reasons for an oral hearing. The timely filing of a petition will suspend the commencement of collection proceedings.
(b) The employee's petition or statement must be signed and dated by the employee.
(c) Petitions for hearing made after the expiration of the 15-day period may be accepted if the employee can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the time limit.
(d) If the employee timely requests a pre-offset hearing or the timeliness is waived, the appropriate program official must—
(1) Promptly notify the CBCA and arrange for a hearing official (see § 105-56.003(m) of this subpart). The hearing official will notify the employee whether he or she may have an oral or a “paper hearing,” i.e., a review on the written record (see 31 CFR 901.3(e)); and
(2) Provide the hearing official with a copy of all records on which the determination of the debt and any involuntary repayment schedule are based.
(e) If an oral hearing is to be held, the hearing official will notify the appropriate program official and the employee of the date, time, and location of the hearing. The debtor may choose to have the hearing conducted in the hearing official's office located at 1800 M Street NW., 6th Floor, Washington, DC 20036, at another location designated by the hearing official, or by telephone. The debtor and any witnesses are responsible for any personal expenses incurred to arrive at a hearing official's office or other designated location (see § 105-56.007(c)). All telephonic charges incurred during a hearing will be the responsibility of GSA.
(f) If the employee later elects to have the hearing based only on the written submissions, notification must be given to the hearing official and the appropriate program official at least 3 days before the date of the oral hearing. The hearing official may waive the 3-day requirement for good cause.
(g) If either party, without good cause as determined by the hearing official, does not appear at a scheduled oral hearing, the hearing official will make a determination on the claim which takes into account that party's position as presented in writing only.
§ 105-56.007   Pre-offset oral hearing.
(a) The Agency, represented by the appropriate program official or a representative of the Office of General Counsel, and the employee, and/or his or her representative, will explain their case in the form of an oral presentation with reference to the documentation submitted. The employee may testify on his or her own behalf, subject to cross-examination. Other witnesses may be called to testify when the hearing official determines the testimony to be relevant and not redundant. All witnesses will testify under oath, with the oath having been administered by the hearing official. A written transcript of the hearing will be kept and made available to either party in the event of an appeal under the Administrative Procedure Act, 5 U.S.C. 701-706. Arrangements for the taking of the transcript will be made by the hearing official, and all charges associated with the taking of the transcript will be the responsibility of GSA.
(b) The hearing official will—
(1) Conduct a fair and impartial hearing; and
(2) Preside over the course of the hearing, maintain decorum, and avoid delay in the disposition of the hearing.
(c) The employee may represent himself or herself or may be represented by another person of his or her choice at the hearing. GSA will not compensate the employee for representation expenses, including hourly fees for attorneys, travel expenses, and costs for reproducing documents.
(d) Oral hearings are open to the public. However, the hearing official may close all or any portion of the hearing when doing so is in the best interests of the employee or the Agency.
(e) Oral hearings may be conducted by telephone at the request of the employee. All telephonic charges incurred during a hearing will be the responsibility of GSA.
(f) The hearing official may request written submissions and documentation from the employee and the Agency, in addition to considering evidence offered at the hearing.
§ 105-56.008   Pre-offset paper hearing.
If a hearing is to be held only upon written submissions, the hearing official will issue a decision based upon the record and responses submitted by both the Agency and the employee. See § 105-56.006 of this subpart. If either party, without good cause as determined by the hearing official, does not provide written submissions and documentation requested by the hearing official, the hearing official will make a determination on the claim without reference to such submissions and documentation.
§ 105-56.009   Written decision.
(a) Within 60 days of the employee's filing of a petition for a pre-offset hearing, the hearing official will issue a written decision setting forth—
(1) The facts supporting the nature and origin of the debt;
(2) The hearing official's analysis, findings and conclusions as to the employee's or Agency's grounds;
(3) The amount and validity of the debt; and
(4) The repayment schedule, if applicable.
(b) The hearing official's decision will be the final Agency action for the purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 et seq. ).
§ 105-56.010   Deductions.
(a) When deductions may begin. Deductions may begin upon the issuance of an Agency decision on a request for reconsideration or waiver (except as provided in § 105-56.005(b) of this subpart) or the issuance of a decision in a pre-offset hearing. In no event will deductions begin sooner than thirty days from the date of the notice letter. If the employee filed a petition for hearing with the appropriate program official before the expiration of the period provided for in § 105-56.006 of this subpart, then deductions will begin after the hearing official has provided the employee with a hearing and the final written decision. The appropriate program official will coordinate with the National Payroll Center to begin offset in accordance with the final written decision.
(b) Retired or separated employees. If the employee retires, resigns, or is terminated before collection of the indebtedness is completed, the remaining indebtedness will be offset from any subsequent payments of any nature. If the debt cannot be satisfied from subsequent payments, then the debt will be collected according to the procedures for administrative offset pursuant to § 105-55.011 of this subpart.
(c) Types of collection. A debt may be collected in one lump sum or in installments. Collection will be by lump sum unless the employee is able to demonstrate to the program official who signed the notice letter that he or she is financially unable to pay in one lump sum. In these cases, collection will be by installment deductions. Involuntary deductions from pay may not exceed 15 percent of disposable pay.
(d) Methods of collection. If the debt cannot be collected in one lump sum, the debt will be collected by deductions at officially established pay intervals from an employee's current pay account, unless the employee and the appropriate program official agree to an alternative repayment schedule. The alternative arrangement must be in writing and signed by both the employee and the appropriate program official.
(1) Installment deductions. Installment deductions will be made over the shortest period possible. The size and frequency of installment deductions will bear a reasonable relation to the size of the debt and the employee's ability to pay. However, the amount deducted for any period will not exceed 15 percent of the disposable pay from which the deduction is made, unless the employee has agreed in writing to the deduction of a greater amount. The installment payment normally will be sufficient in size and frequency to liquidate the debt in three (3) years or less, unless circumstances warrant a longer period. Installment payments of less than $100 per pay period will be accepted only in the most unusual circumstances.
(2) Sources of deductions. GSA will make salary deductions only from 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.
(e) Non-Salary payments. The receipt of collections from salary offsets does not preclude GSA from pursuing other debt collection remedies, including the offset of other Federal payments to satisfy delinquent non-tax debt owed to the United States. GSA will pursue, when appropriate, such debt collection remedies separately or in conjunction with salary offset.
(f) Interest, penalties and administrative costs. Interest, penalties and administrative costs on debts under this subpart will be assessed according to the provisions of § 105-55.016 of this subpart.
§ 105-56.011   Non-waiver of rights.
An employee's involuntary payment of all or any portion of a debt being collected under 5 U.S.C. 5514 will not be construed as a waiver of any rights which the 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.
§ 105-56.012   Refunds.
(a) GSA will promptly refund to the employee any amounts offset under these regulations when a debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation), or GSA is directed by an administrative or judicial order to refund amounts deducted from the employee's current pay or withheld from non-salary payments.
(b) Unless required by Federal law or contract, refunds under this subpart will not bear interest.
§ 105-56.013   Coordinating offset with another Federal agency.
GSA participates in the Centralized Salary Offset (CSO) program (see subparts B and C of this part). In those instances when CSO cannot be utilized (i.e., when another agency does not participate in the program), the following procedures apply:
(a) When GSA is the creditor agency. When GSA is owed a debt by an employee of another agency, GSA will provide the paying agency with a written certification that the debtor owes GSA a debt and that GSA has complied with these regulations. This certification will include the amount and basis of the debt, the due date of the payment, or the beginning date of installment payments, if any.
(b) When another agency is the creditor agency. (1) GSA may use salary offset against one of its employees or cross-serviced agency employees who is indebted to another agency if requested to do so by that agency. Any such request must be accompanied by a certification from the requesting agency that the person owes the debt, the amount of the debt and that the employee has been given the procedural rights required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K.
(2) The creditor agency must advise GSA of the number of installments to be collected, the amount of each installment, and the beginning date of the first installment if it is not the next established pay period.
(3) If GSA receives an improperly completed request, the creditor agency will be requested to supply the required information before any salary offset begins.
(4) If the claim procedures in paragraph (b)(1) of this section have been properly completed, deductions will begin on the next established pay period unless a different period is requested by the creditor agency.
(5) GSA will not review the merits of the creditor agency's determinations with respect to the amount and/or validity of the debt as stated in the debt claim certification.
(6) If the employee begins separation action before GSA collects the total debt due the creditor agency, the following actions will be taken:
(i) When possible, the balance owed the creditor agency will be liquidated from subsequent payments of any nature due the employee from GSA in accordance with 41 CFR part 105-55.011;
(ii) If the total amount of the debt cannot be recovered, GSA will certify the total amount collected to the creditor agency and the employee;
(iii) If GSA is aware that the employee is entitled to payments from the Civil Service Retirement and Disability Fund, or other similar payments, such information will be provided to the creditor agency so a certified claim can be made against the payments.
(7) If the employee transfers to another Federal agency before GSA collects the total amount due the creditor agency, GSA will certify the total amount collected to the creditor agency and the employee. It is the responsibility of the creditor agency to ensure that collection action is resumed by the new employing agency.
§ 105-56.014   Purpose and scope.
(a) This subpart establishes procedures for the offset of Federal salary payments, through the Financial Management Service's (FMS) administrative offset program, to collect delinquent debts owed to the Federal Government. This process is known as centralized salary offset. Rules issued by the Office of Personnel Management contain the requirements Federal agencies must follow prior to conducting salary offset and the procedures for requesting offsets directly from a paying agency. See 5 CFR parts 550.1101 through 550.1108.
(b) This subpart implements the requirement under 5 U.S.C. 5514 (a)(1) that all Federal agencies, using a process known as centralized salary offset computer matching, identify Federal employees who owe delinquent non-tax debt to the United States. Centralized salary offset computer matching is the computerized comparison of delinquent debt records with records of Federal employees. The purpose of centralized salary offset computer matching is to identify those debtors whose Federal salaries should be offset to collect delinquent debts owed to the Federal Government.
(c) This subpart specifies the delinquent debt records and Federal employee records that must be included in the salary offset matching process. For purposes of this subpart, delinquent debt records consist of the debt information submitted to FMS for purposes of administrative offset as required under 31 U.S.C. 3716(c)(6). Since GSA submits debts to FMS for purposes of administrative offset, the Agency is not required to submit duplicate information for purposes of centralized salary offset computer matching under 5 U.S.C. 5514(a)(1) and this subpart.
(d) An interagency consortium was established to implement centralized salary offset computer matching on a Governmentwide basis as required under 5 U.S.C. 5514(a)(1). Federal employee records consist of records of Federal salary payments disbursed by members of the consortium.
(e) The receipt of collections from salary offsets does not preclude GSA from pursuing other debt collection remedies, including the offset of other Federal payments to satisfy delinquent non-tax debt owed to the United States. GSA will pursue, when appropriate, such debt collection remedies separately or in conjunction with salary offset.
§ 105-56.015   Definitions.
The following definitions apply to this subpart:
(a) Administrative offset means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the payee.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in the executive, judicial, or legislative branch of the Federal government, including government corporations.
(c) Centralized salary offset computer matching means the computerized comparison of Federal employee records with delinquent debt records to identify Federal employees who owe such debts.
(d) Consortium means an interagency group established by the Secretary of the Treasury to implement centralized salary offset computer matching. The group includes all agencies that disburse Federal salary payments.
(e) Creditor agency means any agency that is owed a debt, including a debt collection center when acting on behalf of a creditor agency in matters pertaining to the collection of a debt.
(f) Debt means any amount of money, funds, or property that has been determined by an appropriate official of the Federal government to be owed to the United States by a person, including debt administered by a third party acting as an agent for the Federal Government. For purposes of this subpart, the term “debt” does not include debts arising under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq. ).
(g) Delinquent debt record means information about a past-due, legally enforceable debt, submitted by GSA to FMS for purposes of administrative offset (including salary offset) in accordance with the provisions of 31 U.S.C. 3716(c)(6) and applicable regulations. Debt information includes the amount and type of debt and the debtor's name, address, and taxpayer identifying number.
(h) Disbursing official means an officer or employee designated to disburse Federal salary payments. This includes all disbursing officials of Federal salary payments, including but not limited to, disbursing officials of the Department of the Treasury, the Department of Defense, the United States Postal Service, any government corporation, and any disbursing official of the United States designated by the Secretary.
(i) Disposable pay means the amount that remains from an employee's Federal pay after required deductions for Federal, State and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the Thrift Savings Plan (TSP); premiums for life (excluding amounts deducted for supplemental coverage) and health insurance benefits; Internal Revenue Service (IRS) tax levies; and such other deductions that are required by law to be withheld.
(j) Federal employee means a current employee of an agency, including a current member of the Armed Forces or a Reserve of the Armed Forces (Reserves), employees of the United States Postal Service, and seasonal and temporary employees.
(k) Federal employee records means records of Federal salary payments that a paying agency has certified to a disbursing official for disbursement.
(l) FMS means the Financial Management Service, a bureau of the Department of the Treasury.
(m) For the purposes of the standards in this subpart, unless otherwise stated, the term “Administrator” refers to the Administrator of General Services or the Administrator's delegate.
(n) For the purposes of the standards in this subpart, unless otherwise stated, the terms “GSA” and “Agency” are synonymous and interchangeable.
(o) Pay means basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an individual not entitled to basic pay, other authorized pay.
(p) Paying agency means the agency that employs the Federal employee who owes the debt and authorizes the payment of his or her current pay. A paying agency also includes an agency that performs payroll services on behalf of the employing agency.
(q) Salary offset means administrative offset to collect a debt owed by a Federal employee from the current pay account of the employee.
(r) Secretary means the Secretary of the Treasury or his or her delegate.
(s) Taxpayer identifying number means the identifying number described under section 6109 of the Internal Revenue Code of 1986 (26 U.S.C. 6109). For an individual, the taxpayer identifying number is the individual's social security number.
§ 105-56.016   GSA participation.
(a) As required under 5 U.S.C. 5514(a)(1), GSA must participate at least annually in centralized salary offset computer matching. To meet this requirement, GSA will notify FMS of all past-due, legally enforceable debts delinquent for more than 180 days for purposes of administrative offset, as required under 31 U.S.C. 3716(c)(6). Additionally, GSA may notify FMS of past-due, legally enforceable debts delinquent for less than 180 days for purposes of administrative offset.
(b) Prior to submitting a debt to FMS for purposes of collection by administrative offset, including salary offset, GSA will provide written certification to FMS that—
(1) The debt is past-due and legally enforceable in the amount submitted to FMS and that GSA will ensure that collections (other than collections through offset) are properly credited to the debt;
(2) Except in the case of a judgment debt or as otherwise allowed by law, the debt is referred for offset within ten years after GSA's right of action accrues;
(3) GSA has complied with the provisions of 31 U.S.C. 3716 (administrative offset) and related regulations including, but not limited to, the provisions requiring that GSA provide the debtor with applicable notices and opportunities for a review of the debt; and
(4) GSA has complied with the provisions of 5 U.S.C. 5514 (salary offset) and related regulations including, but not limited to, the provisions requiring that GSA provide the debtor with applicable notices and opportunities for a hearing.
(c) FMS may waive the certification requirement set forth in paragraph (b)(4) of this section as a prerequisite to submitting the debt to FMS. If FMS waives the certification requirement, before an offset occurs, GSA will provide the Federal employee with the notices and opportunities for a hearing as required by 5 U.S.C. 5514 and applicable regulations, and will certify to FMS that the requirements of 5 U.S.C. 5514 and applicable regulations have been met.
(d) GSA will notify FMS immediately of any payments credited by GSA to the debtor's account, other than credits for amounts collected by offset, after submission of the debt to FMS. GSA will notify FMS once the debt is paid in its entirety. GSA will also notify FMS immediately of any change in the status of the legal enforceability of the debt, for example, if the Agency receives notice that the debtor has filed for bankruptcy protection.
§ 105-56.017   Centralized salary offset computer match.
(a) Delinquent debt records will be compared with Federal employee records maintained by members of the consortium or paying agencies. The records will be compared to identify Federal employees who owe delinquent debts for purposes of collecting the debt by administrative offset. A match will occur when the taxpayer identifying number and name of a Federal employee are the same as the taxpayer identifying number and name of a debtor.
(b) As authorized by the provisions of 31 U.S.C. 3716(f), FMS, under a delegation of authority from the Secretary, has waived certain requirements of the Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. 552a, as amended, for administrative offset, including salary offset, upon written certification by the Administrator, or the Administrator's delegate, that the requirements of 31 U.S.C. 3716(a) have been met. Specifically, FMS has waived the requirements for a computer matching agreement contained in 5 U.S.C. 552a(o) and for post-match notice and verification contained in 5 U.S.C. 552a(p). GSA will provide certification in accordance with the provisions of § 105-56.016(b)(3) of this subpart.
§ 105-56.018   Salary offset.
When a match occurs and all other requirements for offset have been met, as required by the provisions of 31 U.S.C. 3716(c), the disbursing official will offset the Federal employee's salary payment to satisfy, in whole or part, the debt owed by the employee. Alternatively, the paying agency, on behalf of the disbursing official, may deduct the amount of the offset from an employee's disposable pay before the employee's salary payment is certified to a disbursing official for disbursement.
§ 105-56.019   Offset amount.
(a) The minimum dollar amount referred for offset under this subpart is $100.
(b) The amount offset from a salary payment under this subpart will be the lesser of—
(1) The amount of the debt, including any interest, penalties and administrative costs; or
(2) Up to 15 percent of the debtor's disposable pay.
(c) Alternatively, the amount offset may be an amount agreed upon, in writing, by the debtor and GSA.
(d) Offsets will continue until the debt, including any interest, penalties, and administrative costs, is paid in full or otherwise resolved to the satisfaction of GSA.
§ 105-56.020   Priorities.
(a) A levy pursuant to the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq. ) takes precedence over other deductions under this subpart.
(b) When a salary payment may be reduced to collect more than one debt, amounts offset under this subpart will be applied to a debt only after amounts offset have been applied to satisfy past due child support debts assigned to a State pursuant to the Social Security Act under 42 U.S.C. 602(a)(26) or 671(a)(17).
§ 105-56.021   Notice.
(a) Before offsetting a salary payment, the disbursing official, or the paying agency on behalf of the disbursing official, will notify the Federal employee in writing of the date deductions from salary will commence and of the amount of such deductions.
(b)(1) When an offset occurs under this subpart, the disbursing official, or the paying agency on behalf of the disbursing official, will notify the Federal employee in writing that an offset has occurred including—
(i) A description of the payment and the amount of offset taken;
(ii) The identity of GSA as the creditor agency requesting the offset; and
(iii) A contact point within GSA that will handle concerns regarding the offset.
(2) The information described in paragraphs (b)(1)(ii) and (b)(1)(iii) of this section does not need to be provided to the Federal employee when the offset occurs if such information was included in a prior notice from the disbursing official or paying agency.
(c) The disbursing official will advise GSA of the names, mailing addresses, and taxpayer identifying numbers of the debtors from whom amounts of past-due, legally enforceable debt were collected and of the amounts collected from each debtor for GSA. The disbursing official will not advise GSA of the source of payment from which the amounts were collected.
§ 105-56.022   Fees.
Agencies that perform centralized salary offset computer matching services may charge a fee sufficient to cover the full cost for such services. In addition, FMS, or a paying agency acting on behalf of FMS, may charge a fee sufficient to cover the full cost of implementing the administrative offset program. FMS may deduct the fees from amounts collected by offset or may bill GSA. Fees charged for offset will be based on actual administrative offsets completed and may be added to the debt as an administrative cost.
§ 105-56.023   Disposition of amounts collected.
(a) The disbursing official conducting the offset will transmit amounts collected for debts, less fees charged under § 105-56.022 of this subpart, to GSA.
(b) If an erroneous offset payment is made to GSA, the disbursing official will notify GSA that an erroneous offset payment has been made.
(1) The disbursing official may deduct the amount of the erroneous offset payment from future amounts payable to GSA; or
(2) Alternatively, upon the disbursing official's request, GSA will promptly return to the disbursing official or the affected payee an amount equal to the amount of the erroneous payment (without regard to whether any other amounts payable to GSA have been paid).
(i) The disbursing official and GSA will adjust the debtor records appropriately.
(ii) Unless required by Federal law or contract, refunds under this subpart will not bear interest.
§ 105-56.024   Purpose and scope.
(a) This subpart establishes procedures for the offset of Federal salary payments, through the Financial Management Service's (FMS) administrative offset program, to collect delinquent debts owed to the Federal Government. This process is known as salary offset. Rules issued by the Office of Personnel Management contain the requirements Federal agencies must follow prior to conducting salary offset and the procedures for requesting offsets directly from a paying agency. See 5 CFR parts 550.1101 through 550.1108.
(b) This subpart implements the requirement under 5 U.S.C. 5514(a)(1) that all Federal agencies, using a process known as centralized salary offset computer matching, identify Federal employees who owe delinquent non-tax debt to the United States. Centralized salary offset computer matching is the computerized comparison of delinquent debt records with records of Federal employees. The purpose of centralized salary offset computer matching is to identify those debtors whose Federal salaries should be offset to collect delinquent debts owed to the Federal Government.
(c) This subpart specifies the delinquent debt records and Federal employee records that must be included in the salary offset matching process. For purposes of this subpart, delinquent debt records consist of the debt information submitted to FMS for purposes of administrative offset as required under 31 U.S.C. 3716(c)(6).
(d) An interagency consortium was established to implement centralized salary offset computer matching on a Governmentwide basis as required under 5 U.S.C. 5514(a)(1). Federal employee records consist of records of Federal salary payments disbursed by members of the consortium.
§ 105-56.025   Definitions.
The following definitions apply to this subpart:
(a) Administrative offset means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the payee.
(b) Agency means a department, agency or sub-agency, court, court administrative office, or instrumentality in the executive, judicial, or legislative branch of the Federal Government, including Government corporations.
(c) Centralized salary offset computer matching means the computerized comparison of Federal employee records with delinquent debt records to identify Federal employees who owe such debts.
(d) Consortium means an interagency group established by the Secretary of the Treasury to implement centralized salary offset computer matching. The group includes all agencies that disburse Federal salary payments.
(e) Creditor agency means any agency that is owed a debt, including a debt collection center when acting on behalf of a creditor agency in matters pertaining to the collection of a debt.
(f) Cross-serviced agency means an arrangement between GSA and another agency whereby GSA provides financial support services to the other agency on a reimbursable basis. Financial support services can range from simply providing computer and software timesharing services to full-service administrative processing.
(g) Debt means any amount of money, funds, or property that has been determined by an appropriate official of the Federal Government to be owed to the United States by a person, including debt administered by a third party acting as an agent for the Federal Government. For purposes of this subpart, the term “debt” does not include debts arising under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq. ).
(h) Delinquent debt record means information about a past-due, legally enforceable debt, submitted to GSA by FMS for purposes of administrative offset (including salary offset) in accordance with the provisions of 31 U.S.C. 3716(c)(6) and applicable regulations. Debt information includes the amount and type of debt and the debtor's name, address, and taxpayer identifying number.
(i) Disbursing official means an officer or employee designated to disburse Federal salary payments. This includes all disbursing officials of Federal salary payments, including but not limited to, disbursing officials of the Department of the Treasury, the Department of Defense, the United States Postal Service, any government corporation, and any disbursing official of the United States designated by the Secretary.
(j) Disposable pay means the amount that remains from an employee's Federal pay after required deductions for Federal, State and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs, including contributions to the Thrift Savings Plan (TSP); premiums for life (excluding amounts deducted for supplemental coverage) and health insurance benefits; Internal Revenue Service (IRS) tax levies; and such other deductions that are required by law to be withheld.
(k) Employee means any individual employed by GSA or a cross-serviced agency of the executive, legislative, or judicial branches of the Federal Government, including Government corporations.
(l) Federal employee records means records of Federal salary payments that a paying agency has certified to a disbursing official for disbursement.
(m) FMS means the Financial Management Service, a bureau of the Department of the Treasury.
(n) Pay means basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an individual not entitled to basic pay, other authorized pay.
(o) Paying agency means the agency that employs the Federal employee who owes the debt and authorizes the payment of his or her current pay. A paying agency also includes an agency that performs payroll services on behalf of the employing agency.
(p) Salary offset means administrative offset to collect a debt owed by a Federal employee from the current pay account of the employee.
(q) Secretary means the Secretary of the Treasury or his or her delegate.
(r) Taxpayer identifying number means the identifying number described under section 6109 of the Internal Revenue Code of 1986 (26 U.S.C. 6109). For an individual, the taxpayer identifying number is the individual's social security number.
§ 105-56.026   GSA participation.
(a) As required under 5 U.S.C. 5514(a)(1), creditor agencies must participate at least annually in centralized salary offset computer matching. To meet this requirement, creditor agencies will notify FMS of all past-due, legally enforceable debts delinquent for more than 180 days for purposes of administrative offset, as required under 31 U.S.C. 3716(c)(6). Additionally, creditor agencies may notify FMS of past-due, legally enforceable debts delinquent for less than 180 days for purposes of administrative offset.
(b) Prior to submitting a debt to FMS for purposes of collection by administrative offset, including salary offset, creditor agencies will provide written certification to FMS that—
(1) The debt is past-due and legally enforceable in the amount submitted to FMS and that the creditor agency will ensure that collections (other than collections through offset) are properly credited to the debt;
(2) Except in the case of a judgment debt or as otherwise allowed by law, the debt is referred for offset within ten years after the creditor agency's right of action accrues;
(3) The creditor agency has complied with the provisions of 31 U.S.C. 3716 (administrative offset) and related regulations including, but not limited to, the provisions requiring the creditor agency to provide the debtor with applicable notices and opportunities for a review of the debt; and
(4) The creditor agency has complied with the provisions of 5 U.S.C. 5514 (salary offset) and related regulations including, but not limited to, the provisions requiring the creditor agency to provide the debtor with applicable notices and opportunities for a hearing.
(c) FMS may waive the certification requirement set forth in paragraph (b)(4) of this section as a prerequisite to submitting the debt to FMS. If FMS waives the certification requirement, before an offset occurs, the creditor agency will provide the Federal employee with the notices and opportunities for a hearing as required by 5 U.S.C. 5514 and applicable regulations, and will certify to FMS that the requirements of 5 U.S.C. 5514 and applicable regulations have been met.
(d) The creditor agency will notify FMS immediately of any payments credited by the agency to the debtor's account, other than credits for amounts collected by offset, after submission of the debt to FMS. The creditor agency will notify FMS once the debt is paid in its entirety. The creditor agency will also notify FMS immediately of any change in the status of the legal enforceability of the debt, for example, if the agency receives notice that the debtor has filed for bankruptcy protection.
§ 105-56.027   Centralized salary offset computer match.
(a) Delinquent debt records will be compared with Federal employee records maintained by members of the consortium or paying agencies. The records will be compared to identify Federal employees who owe delinquent debts for purposes of collecting the debt by administrative offset. A match will occur when the taxpayer identifying number and name of a Federal employee are the same as the taxpayer identifying number and name of a debtor.
(b) As authorized by the provisions of 31 U.S.C. 3716(f), FMS, under a delegation of authority from the Secretary, has waived certain requirements of the Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. 552a, as amended, for administrative offset, including salary offset, upon written certification by the creditor agency, that the requirements of 31 U.S.C. 3716(a) have been met. Specifically, FMS has waived the requirements for a computer matching agreement contained in 5 U.S.C. 552a(o) and for post-match notice and verification contained in 5 U.S.C. 552a(p).
§ 105-56.028   Salary offset.
When a match occurs and all other requirements for offset have been met, as required by the provisions of 31 U.S.C. 3716(c), the disbursing official will offset the GSA employee's or cross-serviced agency employee's salary payment to satisfy, in whole or part, the debt owed by the employee. Alternatively, the GSA National Payroll Center, serving as the paying agency, on behalf of the disbursing official, may deduct the amount of the offset from an employee's disposable pay before the employee's salary payment is certified to a disbursing official for disbursement.
§ 105-56.029   Offset amount.
(a) The minimum dollar amount of salary offset under this subpart is $100.
(b) The amount offset from a salary payment under this subpart will be the lesser of—
(1) The amount of the debt, including any interest, penalties and administrative costs; or
(2) Up to 15 percent of the debtor's disposable pay.
(c) Alternatively, the amount offset may be an amount agreed upon, in writing, by the debtor and the creditor agency.
(d) Offsets will continue until the debt, including any interest, penalties, and administrative costs, is paid in full or otherwise resolved to the satisfaction of the creditor agency.
§ 105-56.030   Priorities.
GSA, acting as the paying agency, on behalf of the disbursing official, will apply the order of precedence when processing debts identified by the centralized salary offset computer match program as follows:
(a) A levy pursuant to the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq. ) takes precedence over other deductions under this subpart.
(b) When a salary payment may be reduced to collect more than one debt, amounts offset under this subpart will be applied to a debt only after amounts offset have been applied to satisfy past due child support debts assigned to a State pursuant to the Social Security Act under 42 U.S.C. 602(a)(26) or 671(a)(17).
§ 105-56.031   Notice.
(a) The disbursing official will provide GSA an electronic list of the names, mailing addresses, and taxpayer identifying numbers of the debtors from whom amounts of past-due, legally enforceable debt are due other Federal agencies. The disbursing official will identify the creditor agency name and a point of contact that will handle concerns regarding the debt.
(b) Before offsetting a salary payment, the GSA National Payroll Center, acting as the paying agency on behalf of the disbursing official, will notify the debtor in writing of the date deductions from salary will commence and of the amount of such deductions.
(c)(1) When an offset occurs under this subpart, the disbursing official, or the GSA National Payroll Center on behalf of the disbursing official, will notify the debtor in writing that an offset has occurred including—
(i) A description of the payment and the amount of offset taken;
(ii) The identity of the creditor agency identified by the disbursing official requesting the offset; and
(iii) A contact point at the creditor agency identified by the disbursing official that will handle concerns regarding the offset.
(2) The information described in paragraphs (c)(1)(ii) and (c)(1)(iii) of this section does not need to be provided to the debtor when the offset occurs if such information was included in a prior notice from the disbursing official or the creditor agency.
§ 105-56.032   Fees.
GSA, while performing centralized salary offset computer matching services, may charge a fee sufficient to cover the full cost for such services. In addition, FMS, or GSA acting as the paying agency on behalf of FMS, may charge a fee sufficient to cover the full cost of implementing the administrative offset program. FMS may deduct the fees from amounts collected by offset or may bill the creditor agency. Fees charged for offset will be based on actual administrative offsets completed.
§ 105-56.033   Disposition of amounts collected.
(a) The disbursing official conducting the offset will transmit amounts collected for debts, less fees charged under § 105-56.032 of this subpart, to the creditor agency.
(b) If an erroneous offset payment is made to the creditor agency, the disbursing official will notify the creditor agency that an erroneous offset payment has been made.
(1) The disbursing official may deduct the amount of the erroneous offset payment from future amounts payable to the creditor agency; or
(2) Alternatively, upon the disbursing official's request, the creditor agency will promptly return to the disbursing official or the affected payee an amount equal to the amount of the erroneous payment (without regard to whether any other amounts payable to the creditor agency have been paid). The disbursing official and the creditor agency will adjust the debtor records appropriately.
§ 105-57.001   Purpose, authority and scope.
(a) This part provides standards and procedures for GSA to collect money from a debtor's disposable pay by means of administrative wage garnishment to satisfy delinquent non-tax debt owed to the United States.
(b) These standards and procedures are authorized under the wage garnishment provisions of the Debt Collection Improvement Act of 1996, codified at 31 U.S.C. 3720D, and Department of the Treasury Wage Garnishment Regulations at 31 CFR 285.11.
(c) Scope. (1) This part applies to any GSA program that gives rise to a delinquent non-tax debt owed to the United States and that pursues recovery of such debt.
(2) This part will apply notwithstanding any provision of State law.
(3) Nothing in this part precludes the compromise of a debt or the suspension or termination of collection action in accordance with applicable law. See, for example, the Federal Claims Collection Standards (FCCS), 31 CFR parts 900 through 904.
(4) The receipt of payments pursuant to this part does not preclude GSA from pursuing other debt collection remedies, including the offset of Federal payments to satisfy delinquent non-tax debt owed to the United States.
GSA may pursue such debt collection remedies separately or in conjunction with administrative wage garnishment.
(5) This part does not apply to the collection of delinquent non-tax debt owed to the United States from the wages of Federal employees from their Federal employment. Federal pay is subject to the Federal salary offset procedures set forth in 5 U.S.C. 5514 and other applicable laws. GSA standards and procedures for offsetting Federal wage payments are stated in 41 CFR part 105-56.
(6) Nothing in this part requires GSA to duplicate notices or administrative proceedings required by contract or other laws or regulations.
§ 105-57.002   Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means withholding funds payable by the United States (including funds payable by the United States on behalf of a State government) to, or held by the United States for, a person to satisfy a claim.
(b) Business day means Monday through Friday, excluding Federal legal holidays. For purposes of computation, the last day of the period will be included unless it is a Federal legal holiday.
(c) Day means calendar day. For purposes of computation, the last day of the period will be included unless it is a Saturday, a Sunday, or a Federal legal holiday.
(d) Debtor means an individual who owes a delinquent non-tax debt to the United States.
(e) “Delinquent” or “past-due” non-tax debt means any non-tax debt that has not been paid by the date specified in GSA's initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement), unless other satisfactory payment arrangements have been made.
(f) Disposable pay means that part of the debtor's compensation (including, but not limited to, salary, bonuses, commissions, and vacation pay) from an employer remaining after the deduction of health insurance premiums and any amounts required by law to be withheld. For purposes of this part, “amounts required by law to be withheld” include amounts for deductions such as social security taxes and withholding taxes, but do not include any amount withheld pursuant to a court order.
(g) Employer means a person or entity that employs the services of others and that pays their wages or salaries. The term employer includes, but is not limited to, State and local Governments, but does not include an agency of the Federal Government as defined by 31 CFR 285.11(c).
(h) Evidence of service means information retained by GSA indicating the nature of the document to which it pertains, the date of submission of the document, and to whom the document is being submitted. Evidence of service may be retained electronically or otherwise, so long as the manner of retention is sufficient for evidentiary purposes.
(i) Financial hardship means an inability to meet basic living expenses for goods and services necessary for the survival of the debtor and his or her spouse and dependents. See § 105-57.010 of this part.
(j) For the purposes of the standards in this part, unless otherwise stated, the term “Administrator” refers to the Administrator of General Services or the Administrator's delegate.
(k) For the purposes of the standards in this part, the terms “claim” and “debt” are synonymous and interchangeable.
They refer to an amount of money, funds, or property that has been determined by GSA to be due the United States from any person, organization, or entity, except another Federal agency, from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures and all other similar sources, including debt administered by a third party as an agent for the Federal Government. For the purposes of administrative offset under 31 U.S.C. 3716, the terms “claim” and “debt” include an amount of money, funds, or property owed by a person to a State (including past-due support being enforced by a State), the District of Columbia, American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, or the Commonwealth of Puerto Rico.
(l) For the purposes of the standards in this part, unless otherwise stated, the terms “GSA” and “Agency” are synonymous and interchangeable.
(m) For the purposes of the standards in this part, unless otherwise stated, “Secretary” means the Secretary of the Treasury or the Secretary's delegate.
(n) Garnishment means the process of withholding amounts from an employee's disposable pay and the paying of those amounts to GSA in satisfaction of a withholding order.
(o) Hearing means a review of the documentary evidence concerning the existence and/or amount of a debt, and/or the terms of a repayment schedule, provided such repayment schedule is established other than by a written agreement entered into pursuant to this part. If the hearing official determines that the issues in dispute cannot be resolved solely by review of the written record, such as when the validity of the debt turns on the issue of credibility or veracity, an oral hearing may be provided.
(p) Hearing official means a Board Judge of the Civilian Board of Contract Appeals (CBCA).
(q) Withholding order means “Wage Garnishment Order (SF 329B)”, issued by GSA. For purposes of this part, the terms “wage garnishment order” and “garnishment order” have the same meaning as “withholding order.”
(r) In this part, words in the plural form shall include the singular and vice versa, and words signifying the masculine gender shall include the feminine and vice versa. The terms “includes” and “including” do not exclude matters not listed but do include matters that are in the same general class.
§ 105-57.003   General rule.
Whenever GSA determines a delinquent debt is owed by an individual, the Agency may initiate administrative proceedings to garnish the wages of the delinquent debtor.
§ 105-57.004   Notice requirements.
(a) At least 30 days before the initiation of garnishment proceedings, GSA will send, by first class mail, overnight delivery service, or hand delivery to the debtor's last known address a written notice informing the debtor of—
(1) The nature and amount of the debt;
(2) The intention of GSA to initiate proceedings to collect the debt through deductions from pay until the debt and all accumulated interest, penalties and administrative costs are paid in full; and
(3) The debtor's rights, including those set forth in paragraph (b) of this section, and the time frame within which the debtor may exercise his or her rights.
(b) The debtor will be afforded the opportunity—
(1) To inspect and copy Agency records related to the debt;
(2) To enter into a written repayment agreement with GSA under terms agreeable to the Agency; and
(3) To request a hearing in accordance with § 105-57.005 of this part concerning the existence and/or amount of the debt, and/or the terms of the proposed repayment schedule under the garnishment order. However, the debtor is not entitled to a hearing concerning the terms of the proposed repayment schedule if these terms have been established by written agreement under paragraph (b)(2) of this section.
(c) The notice required by this section may be included with GSA's demand letter required by 41 CFR 105-55.010.
(d) GSA will keep a copy of the evidence of service indicating the date of submission of the notice. The evidence of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.
§ 105-57.005   Hearing.
(a) GSA will provide a hearing, which at the hearing official's option may be oral or written, if within fifteen (15) business days of submission of the notice by GSA, the debtor submits a signed and dated written request for a hearing, to the official named in the notice, concerning the existence and/or amount of the debt, and/or the terms of the repayment schedule (for repayment schedules established other than by written agreement under § 105-57.004(b)(2) of this part). A copy of the request for a hearing must also be sent to the Civilian Board of Contract Appeals (CBCA) at 1800 F Street NW., Washington, DC 20405.
(b) Types of hearing or review. (1) For purposes of this section, whenever GSA is required to afford a debtor a hearing, the hearing official will provide the debtor with a reasonable opportunity for an oral hearing when he/she determines that the issues in dispute cannot be resolved by review of the documentary evidence, for example, when the validity of the claim turns on the issue of credibility or veracity.
(2) If the hearing official determines that an oral hearing is appropriate, he/she will establish the time and location of the hearing. An oral hearing may, at the debtor's option, be conducted either in-person or by telephone conference. In-person hearings will be conducted in the hearing official's office located at 1800 M Street NW., 6th Floor, Washington, DC 20036, or at another location designated by the hearing official. All personal and travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All telephonic charges incurred during a hearing will be the responsibility of GSA.
(3) The debtor may represent himself or herself or may be represented by another person of his or her choice at the hearing. GSA will not compensate the debtor for representation expenses, including hourly fees for attorneys, travel expenses, or costs for reproducing documents.
(4) In those cases when an oral hearing is not required by this section, the hearing official will nevertheless conduct a “paper hearing”, that is, the hearing official will decide the issues in dispute based upon a review of the written record. The hearing official will establish a reasonable deadline for the submission of evidence.
(c) Subject to paragraph (k) of this section, if the debtor's written request is received by GSA on or before the 15th business day after the submission of the notice described in § 105-57.004(a) of this part, the Agency will not issue a withholding order under § 105-57.006 of this part until the debtor has been provided the requested hearing and a decision in accordance with paragraphs (h) and (i) of this section has been rendered.
(d) If the debtor's written request for a hearing is received by GSA after the 15th business day following the mailing of the notice described in § 105-57.004(a) of this part, GSA may consider the request timely filed and provide a hearing if the debtor can show that the delay was because of circumstances beyond his or her control. However, GSA will not delay issuance of a withholding order unless the Agency determines that the delay in filing the request was caused by factors over which the debtor had no control, or GSA receives information that the Agency believes justifies a delay or cancellation of the withholding order.
(e) After the debtor requests a hearing, the hearing official will notify the debtor of—
(1) The date and time of a telephonic hearing;
(2) The date, time, and location of an in-person oral hearing; or
(3) The deadline for the submission of evidence for a written hearing.
(f) Burden of proof. (1) GSA will have the burden of establishing the existence and/or amount of the debt.
(2) Thereafter, if the debtor disputes the existence and/or amount of the debt, the debtor must prove by a preponderance of the evidence that no debt exists or that the amount of the debt is incorrect. In addition, the debtor may present evidence that the terms of the repayment schedule are unlawful, would cause a financial hardship to the debtor, or that collection of the debt may not be pursued due to operation of law.
(g) The hearing official will arrange and maintain a written transcript of any hearing provided under this section. The transcript will be made available to either party in the event of an appeal under the Administrative Procedure Act, 5 U.S.C. 701 through 706. All charges associated with the taking of the transcript will be the responsibility of GSA. A hearing is not required to be a formal evidentiary-type hearing; however, witnesses who testify in oral hearings will do so under oath or affirmation.
(h) The hearing official will issue a written opinion stating his or her decision, as soon as practicable, but not later than sixty (60) days after the date on which the request for such hearing was received by GSA. If the hearing official is unable to provide the debtor with a hearing and render a decision within 60 days after the receipt of the request for such hearing—
(1) GSA will not issue a withholding order until the hearing is held and a decision rendered; or
(2) If GSA had previously issued a withholding order to the debtor's employer, the Agency will suspend the withholding order beginning on the 61st day after the receipt of the hearing request and continuing until a hearing is held and a decision is rendered.
(i) The written decision will include—
(1) A summary of the facts presented;
(2) The hearing official's findings, analysis and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(j) The hearing official's decision will be the final Agency action for the purposes of judicial review under the Administrative Procedure Act (5 U.S.C. 701 et seq. ).
(k) In the absence of good cause shown, a debtor who fails to appear at a hearing scheduled pursuant to paragraph (e) of this section, or to provide written submissions within the time set by the hearing official, will be deemed to have waived his or her right to appear and present evidence.
§ 105-57.006   Wage garnishment order.
(a) Unless GSA receives information it believes justifies a delay or cancellation of the withholding order, the Agency will send, by first class mail, overnight delivery service or hand delivery, a SF 329A (Letter to Employer & Important Notice to Employer), a SF 329B (Wage Garnishment Order), a SF 329C (Wage Garnishment Worksheet), and a SF 329D (Employer Certification), to the debtor's employer—
(1) Within 30 days after the debtor fails to make a timely request for a hearing (i.e., within 15 business days after the mailing of the notice described in § 105-57.004(a) of this part); or
(2) If a timely request for a hearing is made by the debtor, within 30 days after a final decision is made by the hearing official to proceed with garnishment.
(b) The withholding order sent to the employer under paragraph (a) of this section will contain the signature of, or the image of the signature of, the Administrator or his or her delegate. The order will contain only the information necessary for the employer to comply with the withholding order. Such information includes the debtor's name, address, and social security number, as well as instructions for withholding and information as to where payments are to be sent.
(c) GSA will retain a copy of the evidence of service indicating the date of submission of the order. The evidence of service may be retained electronically so long as the manner of retention is sufficient for evidentiary purposes.
§ 105-57.007   Certification by employer.
The employer must complete and return the SF 329D (Employer Certification) to GSA within the time frame prescribed in the instructions to the form. The certification will address matters such as information about the debtor's employment status and disposable pay available for withholding.
§ 105-57.008   Amounts withheld.
(a) After receipt of the garnishment order issued under this part, the employer shall deduct from all disposable pay paid to the applicable debtor during each pay period the amount of garnishment described in paragraph (b) of this section. The employer may use the SF 329C (Wage Garnishment Worksheet) to calculate the amount to be deducted from the debtor's disposable pay.
(b) Subject to the provisions of paragraphs (c) and (d) of this section, the amount of garnishment will be the lesser of—
(1) The amount indicated on the garnishment order up to 15 percent of the debtor's disposable pay; or
(2) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on Garnishment), which is the amount by which a debtor's disposable pay exceeds an amount equivalent to thirty times the minimum wage. See 29 CFR 870.10.
(c) When a debtor's pay is subject to withholding orders with priority, the following will apply:
(1) Unless otherwise provided by Federal law, withholding orders issued under this part will be paid in the amounts set forth under paragraph (b) of this section and will have priority over other withholding orders which are served later in time. Notwithstanding the foregoing, withholding orders for family support will have priority over withholding orders issued under this part.
(2) If amounts are being withheld from a debtor's pay pursuant to a withholding order served on an employer before a withholding order issued pursuant to this part, or if a withholding order for family support is served on an employer at any time, the amounts withheld pursuant to the withholding order issued under this part will be the lesser of—
(i) The amount calculated under paragraph (b) of this section; or
(ii) An amount equal to 25 percent of the debtor's disposable pay less the amount(s) withheld under the withholding order(s) with priority.
(3) If a debtor owes more than one debt to GSA, the Agency may issue multiple withholding orders provided the total amount garnished from the debtor's pay for such orders does not exceed the amount set forth in paragraph (b) of this section.
(d) An amount greater than that set forth in paragraphs (b) and (c) of this section may be withheld upon the written consent of the debtor.
(e) The employer shall promptly pay to GSA all amounts withheld in accordance with the withholding order issued pursuant to this part.
(f) An employer will not be required to vary its normal pay and disbursement cycles in order to comply with the withholding order.
(g) Any assignment or allotment by an employee of his or her earnings will be void to the extent it interferes with or prohibits execution of the withholding order issued under this part, except for any assignment or allotment made pursuant to a family support judgment or order.
(h) The employer will withhold the appropriate amount from the debtor's wages for each pay period until the employer receives notification from GSA to discontinue wage withholding. The garnishment order will indicate a reasonable period of time within which the employer is required to commence wage withholding, usually the first payday after the employer receives the order. However, if the first payday is within ten (10) days after the receipt of the garnishment order, the employer may begin deductions on the second payday.
(i) Payments received through a wage garnishment order will be applied in the following order:
(1) To outstanding penalties.
(2) To administrative costs incurred by GSA to collect the debt.
(3) To interest accrued on the debt at the rate established by the terms of the obligation under which it arose or by applicable law.
(4) To outstanding principal.
§ 105-57.009   Exclusions from garnishment.
GSA will not garnish the wages of a debtor who it knows has been involuntarily separated from employment until the debtor has been reemployed continuously for at least 12 months. The debtor has the burden of informing GSA of the circumstances surrounding an involuntary separation from employment.
§ 105-57.010   Financial hardship.
(a) A debtor whose wages are subject to a wage withholding order under this part, may, at any time, request a review by GSA of the amount garnished, based on materially changed circumstances such as disability, divorce, or catastrophic illness which result in financial hardship.
(b) A debtor requesting a review under paragraph (a) of this section shall submit the basis for claiming the current amount of garnishment results in a financial hardship to the debtor, along with supporting documentation.
(c) If a financial hardship is found, GSA will downwardly adjust, by an amount and for a period of time agreeable to the Agency, the amount garnished to reflect the debtor's financial condition. GSA will notify the employer of any adjustments to the amounts to be withheld.
§ 105-57.011   Ending garnishment.
(a) Once GSA has fully recovered the amounts owed by the debtor, including interest, penalties, and administrative costs consistent with the FCCS, the Agency will send the debtor's employer notification to discontinue wage withholding.
(b) At least annually, GSA will review its debtors' accounts to ensure that garnishment has been terminated for accounts that have been paid in full.
§ 105-57.012   Actions prohibited by the employer.
An employer may not discharge, refuse to employ, or take disciplinary action against the debtor due to the issuance of a withholding order under this part. See 31 U.S.C. 3720D(e).
§ 105-57.013   Refunds.
(a) If a hearing official, at a hearing held pursuant to § 105-57.005 of this part, determines that a debt is not legally due and owing to the United States, GSA will promptly refund any amount collected by means of administrative wage garnishment.
(b) Unless required by Federal law or contract, refunds under this part will not bear interest.
§ 105-57.014   Right of action.
GSA may sue any employer for any amount that the employer fails to withhold from wages owed and payable to an employee in accordance with §§ 105-057.006 and 105-57.008 of this part, plus attorney's fees, costs, and if applicable, punitive damages. However, a suit may not be filed before the termination of the collection action involving a particular debtor, unless earlier filing is necessary to avoid expiration of any applicable statute of limitations period. For purposes of this part, “termination of the collection action” occurs when GSA has terminated collection action in accordance with the FCCS or other applicable standards. In any event, termination of the collection action will have been deemed to occur if GSA has not received any payments to satisfy the debt from the particular debtor whose wages were subject to garnishment, in whole or in part, for a period of one (1) year.
§ 105-60.000   Scope of part.
This part contains the rules that the U.S. General Services Administration, hereinafter GSA, follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with Privacy Act regulations as well as under this part.
§ 105.60.001   General policy.
(a) In compliance with the Freedom of Information Act (FOIA), as amended 5 U.S.C. 552, a positive and continuing obligation exists for GSA to make available to the fullest extent practicable upon request by members of the public, all records and informational materials that are generated, maintained, and controlled by GSA.
(b) This subpart also covers exemptions from disclosure of these records; procedures for the public to inspect or obtain copies of GSA records.
(c) The regulations promulgated in this subpart are consistent with amendments to 5 U.S.C. 552a as well as other applicable Federal laws germane to disclosure of information to the public.
(d) This subpart applies to all GSA organizations, portfolios, business lines, regional offices and components. The aforementioned units may establish additional rules for processing FOIA requests due to unique program requirements; however, such rules shall be consistent with these rules and have the concurrence of the GSA Administrator and GSA Chief FOIA Officer.
(e) Any internal GSA policies or procedures inconsistent with the policies and procedures promulgated in this subpart are superseded by this subpart to the extent of that inconsistency.
(f) This subpart does not entitle any person to any service or to the disclosure of any GSA records that are not required to be disclosed under the FOIA.
§ 105-60.100   Public availability of information.
Records that FOIA in 5 U.S. Code section 552(a)(2) requires GSA to make available for public inspection in an electronic format can be accessed via GSA's website at www.gsa.gov . Additionally, the GSA FOIA Reading Room, and the FOIA Online System. GSA is responsible for determining which of its records shall be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. These records shall be made available electronically via the GSA FOIA Reading Room. GSA shall ensure that its online FOIA Library of posted records and indices is reviewed and updated on an ongoing basis. GSA maintains a FOIA Requester Service Center, the office that oversees FOIA requests for all of GSA, and a FOIA Public Liaison to assist individuals in locating records particular to an agency. A list of agency FOIA Public Liaisons is available at: http://www.foia.gov/ .
§ 105-60.200   Making a request.
(a) To make a request for GSA records, a requester shall file their request to the GSA FOIA Requester Service Center via one of the following, via the FOIAonline website: ( https://foiaonline.gov/foiaonline/action/public/home ). From FOIAonline you can submit FOIA requests to GSA and other participating FOIAonline agencies, track the status of requests, search for requests submitted by others, access previously released records, and generate agency-specific FOIA processing reports.
(b) If it is not reasonably possible for a requester to submit an electronic request via FOIAonline, the requester shall submit their request via U.S. Mail to the following address: GSA FOIA Requester Service Center (H3), Room 7308, 1800 F Street NW, Washington, DC 20405. Fax: 202-501-2727. Alternatively, a FOIA requester may email its FOIA request to gsa.foia@gsa.gov (Subject: FOIA Request via Email).
(c) FOIA request description requirements:
(1) The requester shall provide the following items of contact information when submitting a request to GSA:
(i) Full name with honorific (Mr., Ms., Mrs., Dr., etc.);
(ii) Complete mailing address; and
(iii) Telephone number.
(2) This requirement is applicable to both FOIA requests submitted electronically and via U.S. mail, respectively.
(3) Although it is not a mandatory requirement, GSA also recommends the requester provide a personal/business email address for remittance as well.
(d) A requester who is making a request for records about himself or herself shall comply with the verification of identity requirements as specified in paragraph (e) of this section.
(e) Where a request for records pertains to another individual, a requester may receive access to the requested records by submitting: Either a notarized authorization signed by the individual permitting that he or she explicitly grants access to the requested records pursuant to the requirements set forth in 28 U.S.C. 1746 or by submitting proof that the individual is deceased ( e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, GSA can require a requester to supply additional information such as a Certification of Identity Form in order to sufficiently verify the individual submitting the request and/or also verify that a particular individual has consented to disclosure.
§ 105-60.201   Description of records sought.
(a) Requesters shall describe the records sought in sufficient detail to enable GSA personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include the following information in their FOIA request, which may help GSA identify the requested records the date/timeframe the requested information was created or occurred, title or name, author, recipient, subject matter of the record, case number, file designation, contract number, leasing identification number, or reference number and if known, the component of GSA housing the records.
(b) Before submitting a FOIA request, requesters may contact the GSA FOIA Requester Service Center or GSA FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. If after receiving a request, GSA determines that it does not reasonably describe the records sought, GSA shall inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with their assigned Government Information Specialist or FOIA Public Liaison. If a request does not reasonably describe the records sought, GSA's response to the request may be delayed.
(c) In order to efficiently respond to FOIA requests within the required 20-business-day timeframe per 5 U.S.C. 552(a)(6)(A), GSA may close an unperfected request 10 business days after GSA notifies the requester of the information needed to perfect the request. If the request does not reasonably describe the records sought, it is unperfected. A perfected FOIA request is a FOIA request for records that adequately describes the records sought, is made in accordance with GSA's regulations, has been received by the GSA FOIA Requester Service center, and for which there is no remaining question about the payment or amount of applicable fees.
(d) Requesters may specify whether they prefer to receive paper copies of the records or receive the records electronically. GSA shall accommodate the request if the record is readily reproducible in the requested form.
§ 105-60.300   Responsibility for responding to FOIA requests.
(a) The GSA FOIA Requester Service Center is responsible for managing all requests for records submitted to GSA from initial receipt of the FOIA request through the agency's final decision to release in whole or in part, or withhold the requested records.
(b) Upon receiving a request for records, the GSA FOIA Requester Service Center shall determine whether the requested records reside within GSA. If GSA does not have ownership of the requested records, the GSA FOIA Requester Service Center shall make a good faith effort to redirect the requester to the appropriate record location or/entity that has control and ownership of the requested record, if known.
(c) If GSA has possession of the requested records, the FOIA Requester Service Center shall work in coordination with the appropriate GSA component/or program office to fulfill the FOIA request in accordance with 5 U.S.C. 552.
§ 105-60.301   Acknowledging FOIA requests.
(a) To the extent practicable, GSA shall communicate with requesters electronically via the FOIAonline web portal and/or email.
(b) Upon receipt of a request, GSA shall send requesters an acknowledgement letter within 2 business days containing a brief description of the records sought so requesters may more easily keep track of their requests.
(c) When a request is submitted via FOIAonline, the system automatically generates a tracking number, which allows for easy identification of each request. This tracking number shall be included in the acknowledgement letter.
(d) When GSA receives a request not directly entered by the requester into FOIAonline ( i.e., email, fax, standard mail, etc.) the FOIA Requester Service Center shall immediately upload the request into the FOIAonline system and it shall be assigned a tracking number that shall be communicated to the requester.
§ 105-60.302   Responding to FOIA requests.
(a) GSA shall provide an estimated date by which the agency expects to provide a response to the requester. If a request involves a voluminous amount of material or searches in multiple locations, GSA may provide an interim response, meaning the agency releases the records on a rolling basis as the records are located and verified.
(b) In determining which records are responsive to a request, the agency shall include only the records in its possession as of the date the agency receives the perfected FOIA request. If any other date is used, GSA shall inform the requester accordingly. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request.
(c) Pursuant to 5 U.S.C. 552, GSA is not required to perform the following in response to a FOIA request:
(1) Answer questions or interrogatories posed as FOIA requests;
(2) Issue guidance/or opinions;
(3) Analyze and/or interpret documents for a requester;
(4) Create records;
(5) Conduct research; or
(6) Initiate investigations.
(d) The GSA Administrator and GSA Chief FOIA Officer and/or their assigned delegates are authorized to grant or deny any requests for records or portions thereof that are generated, maintained, or controlled by GSA.
§ 105-60.303   Consultation, referral, and coordination.
(a) All consultations and referrals received by GSA shall be handled according to the date the other agency received the perfected FOIA request.
(b) GSA may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.
(c) When GSA is reviewing records located in response to a FOIA request, GSA shall determine whether another agency of the Federal Government is better able to determine if the records are releasable under the FOIA. As to any such record, GSA shall proceed in one of the following ways:
(1) Consultation. When GSA receives a request for records that either originated with another agency or is a GSA record that includes information that originated with another agency, GSA should typically consult with that other agency prior to making a release determination.
(2) Referral. (i) Whenever GSA receives a request for records that are known to be the primary responsibility of another agency, GSA shall refer the responsibility for responding to the request regarding records to that agency. Ordinarily, the agency that created the records is presumed to be the best agency to make the disclosure determination. However, if GSA and the originating agency jointly agree that GSA is in the best position to respond regarding the record, then the responsive record(s) may be handled as a consultation.
(ii) Whenever GSA refers any part of the responsibility for responding to a record request to another agency, GSA shall maintain documentation that the referral to the other agency has occurred, and shall notify the requester of the referral. The notification to the requester shall include both the name of the agency to which the record request was referred and the contact information for the agency's FOIA office/or personnel.
(iii) This referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could reasonably harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. If a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if GSA locates a record that originates with an intelligence community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. Records meeting these criteria shall be treated as a consultation.
(iv) In such instances, in order to avoid a harm to an interest protected by an FOIA applicable exemption, GSA should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by GSA.
(4) Classified information. (i) On receipt of any request involving classified information, GSA shall determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, GSA shall refer request for records to the agency that classified the information or that should consider the information for classification.
(ii) Whenever GSA's records contain information that has been derivatively classified ( i.e., it contains information classified by another agency), GSA shall refer the responsibility for responding to that portion of the request to the agency that classified the information.
§ 105-60.304   Time requirements to respond to FOIA requests.
(a) Upon receipt of perfected request via U.S. mail, email, or facsimile, the GSA FOIA Requester Service Center shall begin processing the request for records. Pursuant to 5 U.S.C. 552(a)(6)(A)(i), GSA has 20 business days (excluding Saturdays, Sundays, and Federal holidays) to inform the requester of the agency's determination with respect to the request for records, unless in the alternative, the agency has negotiated a different timeframe based on scope and level of effort to prepare the FOIA request response. If a requester does not receive a response to their perfected FOIA request within the statutory timeframe requester may seek judicial review in the U.S. District Court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the U.S. District Court for the District of Columbia.
(b) GSA shall to the greatest extent practicable respond to FOIA requests by order of receipt of the requests.
(c) GSA shall designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in this subpart. GSA may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors GSA may consider are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. GSA shall advise requesters of the track into which their request falls upon request, and when appropriate, offer the requester an opportunity to narrow the scope and/or modify their requests.
(d) GSA may aggregate requests in cases where it reasonably appears that multiple requests for records were submitted either by a requester or by a group of requesters acting in concert for the same, or similar information to ensure it is fulfilled in a timely manner. GSA cannot aggregate multiple requests for unrelated subject matters.
§ 105-60.305   Unusual circumstances.
Whenever GSA cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined at 5 U.S.C. 552(a)(6)(A)(iii), GSA shall, before expiration of the 20-day statutory time period to respond to a request for records, notify the requester in writing of the unusual circumstances involved and of the date by which GSA estimates the processing of the request shall be completed. Where the extension of time is anticipated to exceed 10 business days, GSA shall provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. GSA shall make available its FOIA Public Liaison for this purpose. GSA shall also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.
§ 105-60.306   Expedited processing.
(a) A request for expedited processing may be made at any time. In order to qualify for consideration for expedited processing, the request shall reasonably describe the records sought. Expedited requests should be described in sufficient detail to facilitate expedited processing.
(b) A requester who seeks expedited processing shall submit a statement with their FOIA request, certified to be true and correct, explaining in detail the basis for making the request for expedited processing as described in paragraphs (c)(1) through (4) of this section. As a matter of administrative discretion, GSA may waive the formal certification requirement.
(c) GSA may process requests and appeals on an expedited basis whenever it is determined that they involve:
(1) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information; or
(3) The loss of substantial due process rights; or
(4) A matter of widespread and exceptional media interest in which there exist possible questions about the Government's integrity that affect public confidence.
(d) GSA shall notify the requester within 10 calendar days of its receipt of a request for expedited processing and of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and processed as soon as practicable. If a request for expedited processing is denied, GSA shall act on any appeal of that decision within 3 business days.
§ 105-60.400   Applying FOIA exemptions.
(a) 5 U.S.C. 552(b)(1)-(9) of the Freedom of Information Act provides that the disclosure requirements of FOIA do not apply to matters that are:
(1) Specifically authorized under the criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such executive order (see Executive Order No. 13,526);
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute other than 5 U.S.C. 552(b)(1)-(9), 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;
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information that could harm the competitive posture or business interests of a company;
(5) Interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) 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, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual;
(8) 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; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) GSA will provide any reasonably segregable portion of a record to a requester after redacting the portions of the requested records that are exempt under this section.
§ 105-60.500   Final response procedures and rules.
(a) Once GSA determines that it shall grant a request in full or in part, the requester shall be notified of the decision in writing as well. GSA shall also inform the requester of any fees charged under § 105-60.804 of this part and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The agency shall inform the requester of the availability of its FOIA Public Liaison to offer assistance.
(b) If GSA makes an adverse determination on any part of the FOIA request, it shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include determinations that:
(1) The requested record is exempt from disclosure, in whole or in part;
(2) The FOIA request does not reasonably describe the records sought;
(3) The information requested is not subject to FOIA;
(4) The requested record does not exist, cannot be located, or has been destroyed; or
(5) The requested record is not readily reproducible in the form or format sought by the requester.
(c) Records disclosed in part in response to a FOIA request shall be marked clearly to show the exemption under which the applicable portions of the responsive records were redacted unless doing so would harm an interest protected by an applicable exemption.
(d) Adverse determinations also include denials involving fee waiver requests, denials for expedited processing, and the administrative closure of FOIA requests due to nonpayment of search and review fees for processing the FOIA request.
(e) Any adverse determination of a FOIA request, in full or in part, shall be signed by the Chief FOIA Officer or his or her designee and shall include:
(1) The name and title or position of the person responsible for the adverse determination;
(2) A brief statement of the reasons for the adverse determination, including any FOIA exemption that is the basis for GSA's decision;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and
(4) A statement that the denial may be appealed under subpart I of this part, and a description of the appeal requirements.
(5) A statement notifying the requester of the assistance available from the agency's FOIA Public Liaison and the dispute resolution services offered by OGIS.
(f) Use of record exclusions pursuant to 5 U.S.C. 552(c):
(1) In the event that GSA identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), GSA shall confer with Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion.
(2) If GSA invokes an exclusion, it shall maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
§ 105-60.600   Procedural and lawful considerations.
(a) Confidential commercial information means commercial or financial information obtained by GSA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(b) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(c) A submitter of confidential commercial information shall use good faith efforts to designate by appropriate markings/or redact any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(d) When notice to submitters is required:
(1) GSA shall promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if GSA determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) GSA has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, GSA may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
(e) The notice requirements of this section do not apply if:
(1) GSA determines that the information is exempt under the FOIA, and therefore shall not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than FOIA or by a regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such a case, GSA shall give the submitter written notice of any final decision to disclose the information within reasonable time prior to a specified disclosure date.
§ 105-60.601   Submitter's opportunity to object to disclosure.
(a) GSA shall provide a submitter with 10 business days, within which the submitter shall respond to the notice referenced in § 105-60.600.
(b) If a submitter has any objections to disclosure, it should provide GSA a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the basis for nondisclosure, the submitter shall explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential and the harm of the release of the information to the submitter.
(c) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information.
(d) GSA is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(e) GSA shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(f) Whenever GSA decides to disclose information over the objection of a submitter, the agency shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of the records as the agency intends to release them; and
(3) The specified disclosure date.
(g) Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, GSA shall promptly notify the submitter.
(h) GSA shall notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
§ 105-60.700   Submitting an appeal.
(a) A requester may appeal any adverse determination (denial of access to records, denial of fee waiver, or denial of expedited processing, etc.) to the GSA FOIA Requester Service Center which is designated as the agency's FOIA Appeals Office.
(b) The appeal shall include:
(1) The FOIAonline tracking number;
(2) The basis for disagreement with GSA's adverse determination that is being appealed; and
(3) A brief statement of the reasons he or she thinks GSA should release the records or provide expedited processing and enclose copies of the initial request and denial.
(c) The requester may submit the appeal electronically to GSA.FOIA@gsa.gov . The requester should mark the subject line of the electronic transmission, “Freedom of Information Act Appeal.” In the alternative, the requester may submit an appeal via facsimile to 202-501-2727, or via US mail to U.S. General Services Administration, FOIA Requester Service Center (H3), 1800 F Street NW, 7308, Washington, DC 20405-0001. If the appeal is submitted via US mail, the appeal letter must include the words “Freedom of Information Act Appeal” on both the face of the appeal letter and on the envelope. Failure to follow these procedures will delay processing of the appeal.
(d) The GSA FOIA Officer must receive the requester's appeal no later than 90 calendar days after receipt by the requester of any adverse determination by GSA with respect to the FOIA request. GSA has 20 business days after receipt of a proper appeal to issue a response to the requester's appeal. The 20-workday time limit shall not begin until the GSA FOIA Officer receives the appeal. As noted in § 105.60.305 of this part, the GSA FOIA Officer may extend this time limit in unusual circumstances. GSA will process appeals of denials of expedited processing as soon as possible after receiving them. The GSA FOIA Officer may also extend the time limit in the event of unusual circumstances occur during the processing of appeals as well.
§ 105-60.701   Adjudication of appeals.
(a) The GSA Chief FOIA Officer or his or her designee shall act on behalf of GSA on all appeals under this section.
(b) An appeal ordinarily shall not be adjudicated if the request that is the subject of the appeal becomes a matter of FOIA litigation. GSA shall administratively close the appeal if it becomes the subject of litigation and provide this notice to the requester in writing that the request has been administratively closed.
(c) On receipt of any appeal involving classified information, GSA shall take appropriate action to ensure compliance with applicable classification rules.
(d) GSA shall provide its review and decision on any appeal in writing. Any decision that either upholds GSA's original determination in whole or in part shall contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied.
(e) If GSA's decision is remanded or modified on appeal, GSA shall notify the requester of that determination in writing. GSA shall then further process the request in accordance with that appeal determination and shall respond directly to the requester. If GSA affirms its original decision after timely receipt of an appeal, GSA shall inform the requester via writing as well. GSA shall inform the requester of their right to seek judicial review in the U.S. District Court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the U.S. District Court for the District of Columbia. GSA shall also inform the requester of the mediation services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration (NARA) as a non-exclusive alternative to litigation.
(f) Engaging in dispute resolution or mediation services provided by OGIS is a voluntary process. Mediation is a voluntary process. If GSA agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
§ 105-60.702   Requirements to preserve FOIA records.
GSA shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the NARA. GSA shall not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under FOIA.
§ 105-60.800   General provisions.
(a) GSA shall charge for processing requests under the FOIA in accordance with the provisions of this section and with OMB Guidelines. For purposes of assessing fees, FOIA establishes three categories of requesters:
(1) Commercial use requesters;
(2) Noncommercial scientific or educational institutions or news media requesters; and
(3) All other requesters.
(b) Fees are assessed depending on the category GSA determines the requester falls under in subpart A of this part. Requesters may seek a fee waiver. GSA shall consider requests for fee waiver in accordance with the requirements in § 105-60.807 of this subpart. To resolve any fee issues that arise under this section, GSA may contact a requester for additional information. GSA shall ensure that searches, review, and duplication of FOIA records are conducted in the most efficient and the least expensive manner.
(c) GSA shall collect all applicable fees before sending copies of records to a requester. Requesters pay fees by check, credit card, or money order made payable to the U.S. General Services Administration, or by another method as determined by GSA.
§ 105-60.801   Definitions pertaining to fee assessments.
(a) A commercial use request is a request that asks for information that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. GSA's decision to place a requester in the commercial use category shall be made on a case-by-case basis and is based on the requester's intended use of the information. GSA shall notify requesters of their placement in this category.
(b) Direct costs are those expenses that GSA incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work ( i.e., the basic rate of pay for the employee, plus sixteen (16) percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space or the heating or lighting of a facility.
(c) Duplication is reproducing a record to respond to a FOIA request. Duplicating records can occur via paper, audiovisual materials or electronic records.
(d) An educational institution is any school that operates a program of scholarly research. A requester in this fee category shall show that the request is made in connection with his or her role at the educational institution. Agencies may seek verification from the requester that the request is in furtherance of scholarly research.
(e) A noncommercial scientific institution is an institution that is not operated on a commercial basis. The term `commercial' for purposes of this subpart is that which is defined in paragraph (a) of this section 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. A requester in this category shall show that the request is authorized by a qualifying noncommercial institution, or educational institution of vocational and higher learning and where the records are sought to further scientific, or academic scholarly research, and are not for a commercial use. GSA shall advise requesters of their placement in this category.
(f) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, GSA can also consider a requester's past publication record in making this determination. GSA shall advise requesters of their placement in this category.
(g) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes the process of reviewing each individual record for possible redactions and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 105-60.601 of this part. It does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(h) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
§ 105-60.802   Fees to be charged.
In responding to FOIA requests, GSA shall charge the following fees unless a waiver or reduction of fees has been granted under § 105-60.807 of this subpart. Because the fee amounts provided below already account for the direct costs associated with a given fee type, GSA shall not add any additional costs to charges calculated under this section.
(a) Search fees. (1) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. GSA shall charge search fees for all other requesters, subject to the rules and restrictions enumerated in this subpart. GSA may properly charge for time spent searching even if the GSA FOIA Requester Service Center does not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(2) For each half hour (30 minutes) spent by GSA personnel searching for requested records, including electronic searches that do not require new programming, a $24.50 fee shall be assessed per the guidelines of the fee schedule enumerated in § 105-60.804 of this subpart.
(3) GSA shall charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. GSA shall notify the requester of the costs associated with creating such a program, and the requester shall agree to pay the associated costs before the costs may be incurred.
(4) For requests that require the retrieval of records stored by GSA at a Federal records center operated by the NARA, GSA shall charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.
(b) Duplication fees. (1) GSA shall charge duplication fees to all requesters, subject to the restrictions of § 105-60.803 of this subpart. GSA shall honor a requester's preference for receiving a record in a particular form or format where the agency can readily reproduce it in the form or format requested. Where photocopies are supplied, GSA shall provide one copy per request at the cost of $0.10 per copy. For copies of records produced on tapes, disks, or other media, GSA shall charge the direct costs of producing the copy, including operator time.
(2) Where paper documents shall be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall also pay the direct costs associated with scanning those materials. For other forms of duplication, GSA shall charge the direct costs.
(3) GSA determines the standard fee for duplication of records as follows:
(i) Per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—U.S. $0.10.
(ii) Per copy prepared by any other method of duplication—actual direct cost of production.
(c) Review fees. GSA shall charge review fees to requesters who make commercial use requests. Review fees shall be assessed based upon the initial review of the record ( i.e., the review conducted by GSA to determine whether an exemption applies to a particular record or portion of a record). No charge shall be made for review during the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with GSA or another agency's secondary review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees shall be charged at the same rates as those enumerated in the fee schedule of this section.
§ 105-60.803   Restrictions on charging fees.
(a) When GSA determines that a requester is an educational institution, noncommercial scientific institution, or representative of the news media, and that the records are not sought for commercial use, GSA shall not charge search fees.
(b) If GSA fails to comply with the time limits in which to respond to a request for agency records under FOIA, it will not charge search fees, or in the instances of requests from requesters described in paragraph (a) of this section, may not charge duplication fees, except as described in paragraphs (b)(1) through (3) of this section. GSA will charge duplication fees in accordance with § 105-60.802(b)(1) through (3) of this subpart.
(1) If GSA has determined that unusual circumstances, as defined by FOIA, apply and the agency provided timely written notice to the requester in accordance with FOIA, a failure to comply with the time limit shall be excused for an additional 10 business days.
(2) If GSA has determined that unusual circumstances, as defined by the FOIA, apply and that more than 5,000 pages are necessary to respond to the request, GSA may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. GSA shall have provided timely written notice of unusual circumstances to the requester in accordance with FOIA and GSA shall have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.
(3) If a court has determined that exceptional circumstances exist, as defined by FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(c) No search or review fees shall be charged for a half-hour period unless more than half of that period is required for search or review.
(d) Except for requesters seeking records for a commercial use, GSA shall provide without charge:
(1) The first 100 pages of duplication (or the cost equivalent for other media); and
(2) The first 2 hours of search time.
(e) No fee shall be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first 2 hours of search, is equal to or less than $49.00.
§ 105-60.804   Fee schedule.
Table 1 to § 105-60.804 outlines the basic fee categories and applicable fees:
Table 1 to § 105-60.804—Fee Requester Category Table
GSA's calculated hourly rate for manual search, computer operator/programmer time, and employee time spent reviewing records is set at a flat rate of 49.00 per hour. GSA charges for these FOIA services by the hour at $49.00 and half hour at $24.50.
The fee schedule of this section does not apply to fees charged under any statute that specifically requires GSA to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily based fee schedule program, GSA shall inform the requester of the contact information for that program.
If GSA utilizes a contractor or agency personnel outside of the FOIA Requester Service Center to perform any services described in this subpart, the standard fee is based on the equivalent hourly rates.
§ 105-60.805   Anticipated fees.
(a) When GSA determines or estimates that the fees to be assessed in accordance with this section shall exceed $49.00, the agency shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated via writing. If only a portion of the fee can be estimated readily, GSA shall advise the requester accordingly. If the request is not for noncommercial use, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, 2 hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(b) If GSA notifies the requester that the actual or estimated fees are in excess of $49.00, the request shall not be considered received and further work shall not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay. Or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester shall provide the commitment/or designate an exact dollar amount in writing the requester is willing to pay. GSA is not required to accept payments in installments.
(c) If the requester has indicated a willingness to pay some designated amount of fees, but the agency estimates that the total fee shall exceed that amount, GSA shall toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. GSA shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester submits the new estimated fee, the time to respond shall resume from where it was at the date of the notification.
(d) GSA's FOIA Public Liaison and other FOIA professionals shall be available to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(e) Although not required to provide special services, if GSA chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(f) GSA may charge interest on any unpaid bill starting on the 31st day following the date the requester is first billed. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and shall accrue from the billing date until payment is received by the agency. GSA shall follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(g) When GSA reasonably believes that a requester or a group of requesters acting in concert are attempting to divide a single request into a series of requests for the purpose of avoiding fees, GSA may aggregate those requests and charge accordingly. GSA may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, GSA shall aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.
§ 105-60.806   Advanced payments.
(a) For requests other than those described in this subpart, GSA cannot require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed ( i.e., payment before copies are sent to a requester) is not an advance payment.
(b) When GSA determines or estimates that a total fee to be charged under this section shall exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. GSA may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(c) Where a requester has previously failed to pay a properly charged FOIA fee to GSA within 30 calendar days of the billing date, GSA may require that the delinquent requester pay the full amount due, plus any applicable interest on that prior request, and require that the requester make an advance payment of the full amount of any anticipated fee before the agency begins to process a new request or continues to process a pending request or any pending appeal. If GSA has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(d) In cases in which GSA requires advance payment, the request shall not be considered received and further work shall not be completed until the required payment is received. If the requester does not pay the advance payment within 10 business days after the date of GSA's fee determination, the request shall be closed.
§ 105-60.807   Fee waivers and fee reductions.
(a) Requests for a fee waiver shall be made when the FOIA request is first submitted to the agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or being reviewed per an appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall pay any costs incurred up to the date the fee waiver request was received.
(b) Requirements for waiver or reduction of fees:
(1) Requesters may seek a waiver of fees by submitting a written rationale as to how disclosure of the requested 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; and
(2) GSA shall furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (b)(2)(i) through (iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the operations or activities of the Government. The subject of the request shall concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated; and
(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met; and
(A) Disclosure of the requested records shall be meaningfully informative about Government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(B) The disclosure shall contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public shall be considered. GSA shall presume that a representative of the news media shall satisfy this consideration;
(iii) The disclosure shall not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, GSA shall consider the following criteria:
(A) GSA shall identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, GSA shall determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (b)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. GSA ordinarily shall presume that, when a news media requester has satisfied factors in paragraph (b)(1) of this section and this paragraph (b)(2), the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market Government information for direct economic return shall not be presumed to primarily serve the public interest.
(c) Where only some of the records to be released satisfy the requirements for a fee waiver, a waiver shall be granted for those records.
§ 105-60.900   Coda.
Nothing in this subpart shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
§ 105-60.1001   Purpose and scope of subpart.
(a) By virtue of the authority vested in the Administrator of General Services by 5 U.S.C. 301 and 41 U.S.C. 121(c) this subpart establishes instructions and procedures to be followed by current and former employees of the General Services Administration in response to subpoenas or similar demands issued in judicial or administrative proceedings for production or disclosure of material or information obtained as part of the performance of a person's official duties or because of the person's official status. Nothing in these instructions applies to responses to subpoenas or demands issued by the Congress or in Federal grand jury proceedings.
(b) This subpart provides instructions regarding the internal operations of GSA and the conduct of its employees, and is not intended and does not, and may not, be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against GSA.
§ 105-60.1002   Definitions.
For purposes of this subpart, the following definitions apply:
(a) Material means any document, record, file or data, regardless of the physical form or the media by or through which it is maintained or recorded, which was generated or acquired by a current or former GSA employee by reason of the performance of that person's official duties or because of the person's official status, or any other tangible item, e.g., personal property possessed or controlled by GSA.
(b) Information means any knowledge or facts contained in material, and any knowledge or facts acquired by current or former GSA employee as part of the performance of that person's official duties or because of that person's official status.
(c) Demand means any subpoena, order, or similar demand for the production or disclosure of material, information or testimony regarding such material or information, issued by a court or other authority in a judicial or administrative proceeding, excluding congressional subpoenas or demands in Federal grand jury proceedings, and served upon a present or former GSA employee.
(d) Appropriate authority means the following officials who are delegated authority to approve or deny responses to demands for material, information or testimony:
(1) The Counsel to the Inspector General for material and information which is the responsibility of the GSA Office of Inspector General or testimony of current or former employees of the Office of the Inspector General;
(2) The Counsel to the GSA Board of Contract Appeals for material and information which is the responsibility of the Board of Contract Appeals or testimony of current or former Board of Contract Appeals employees;
(3) The GSA General Counsel, Associate General Counsel(s) or Regional Counsel for all material, information, or testimony not covered by paragraphs (d)(1) and (2) of this section.
§ 105-60.1003   Acceptance of service of a subpoena duces tecum or other legal demand on behalf of the General Services Administration.
(a) The Administrator of General Services and the following officials are the only GSA personnel authorized to accept service of a subpoena or other legal demand on behalf of GSA: The GSA General Counsel and Associate General Counsel(s) and, with respect to material or information which is the responsibility of a regional office, the Regional Administrator and Regional Counsel. The Inspector General and Counsel to the Inspector General, as well as the Chairman and Vice Chairman of the Board of Contract Appeals, are authorized to accept service for material or information which are the responsibility of their respective organizations.
(b) A present or former GSA employee not authorized to accept service of a subpoena or other demand for material, information or testimony obtained in an official capacity shall respectfully inform the process server that he or she is not authorized to accept service on behalf of GSA and refer the process server to an appropriate official listed in paragraph (a) of this section.
(c) A Regional Administrator or Regional Counsel shall notify the General Counsel of a demand which may raise policy concerns or affect multiple regions.
§ 105-60.1004   Production or disclosure prohibited unless approved by the Appropriate Authority.
No current or former GSA employee shall, in response to a demand, produce any material or disclose, through testimony or other means, any information covered by this subpart, without prior approval of the Appropriate Authority.
§ 105-60.1005   Procedure in the event of a demand for production or disclosure.
(a) Whenever service of a demand is attempted in person or via mail upon a current or former GSA employee for the production of material or the disclosure of information covered by this subpart, the employee or former employee shall immediately notify the Appropriate Authority through his or her supervisor or his or her former service, staff office, or regional office. The supervisor shall notify the Appropriate Authority. For current or former employees of the Office of Inspector General located in regional offices, Counsel to the Inspector General shall be notified through the immediate supervisor or former employing field office.
(b) The Appropriate Authority shall require that the party seeking material or testimony provide the Appropriate Authority with an affidavit, declaration, statement, and/or a plan as described in paragraphs (c) (1), (2), and (3) of this section if not included with or described in the demand. The Appropriate Authority may waive this requirement for a demand arising out of proceedings to which GSA or the United States is a party. Any waiver will be coordinated with the United States Department of Justice (DOJ) in proceedings in which GSA, its current or former employees, or the United States are represented by DOJ.
(c)(1) Oral testimony. If oral testimony is sought by a demand, the Appropriate Authority shall require the party seeking the testimony or the party's attorney to provide, by affidavit or other statement, a detailed summary of the testimony sought and its relevance to the proceedings. Any authorization for the testimony of a current or former GSA employee shall be limited to the scope of the demand as summarized in such statement or affidavit.
(2) Production of material. When information other than oral testimony is sought by a demand, the Appropriate Authority shall require the party seeking production or the party's attorney to provide a detailed summary, by affidavit or other statement, of the information sought and its relevance to the proceeding.
(3) Required plan or other information. The Appropriate Authority may require a plan or other information from the party seeking testimony or production of material of all demands reasonably foreseeable, including, but not limited to, names of all current and former GSA employees from whom testimony or production is or will likely be sought, areas of inquiry, for current employees the length of time away from duty anticipated, and identification of documents to be used in each deposition or other testimony, where appropriate.
(d) The Appropriate Authority will notify the current or former employee, the appropriate supervisor, and such other persons as circumstances may warrant, whether disclosure or production is authorized, and of any conditions or limitations to disclosure or production.
(e) Factors to be considered by the Appropriate Authority in responding to demands:
(1) Whether disclosure or production is appropriate under rules of procedure governing the proceeding out of which the demand arose;
(2) The relevance of the testimony or documents to the proceedings;
(3) The impact of the relevant substantive law concerning applicable privileges recognized by statute, common law, judicial interpretation or similar authority;
(4) The information provided by the issuer of the demand in response to requests by the Appropriate Authority pursuant to paragraphs (b) and (c) of this section;
(5) The steps taken by the issuer of the demand to minimize the burden of disclosure or production on GSA, including but not limited to willingness to accept authenticated copies of material in lieu of personal appearance by GSA employees;
(6) The impact on pending or potential litigation involving GSA or the United States as a party;
(7) In consultation with the head of the GSA organizational component affected, the burden on GSA which disclosure or production would entail; and
(8) Any additional factors unique to a particular demand or proceeding.
(f) The Appropriate Authority shall not approve a disclosure or production which would:
(1) Violate a statute or a specific regulation;
(2) Reveal classified information, unless appropriately declassified by the originating agency;
(3) Reveal a confidential source or informant, unless the investigative agency and the source or informant consent;
(4) Reveal records or information compiled for law enforcement purposes which would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would be impaired;
(5) Reveal trade secrets or commercial or financial information which is privileged or confidential without prior consultation with the person from whom it was obtained; or
(6) Be contrary to a recognized privilege.
(g) The Appropriate Authority's determination, including any reasons for denial or limitations on disclosure or production, shall be made as expeditiously as possible and shall be communicated in writing to the issuer of the demand and appropriate current or former GSA employee(s). In proceedings in which GSA, its current or former employees, or the United States are represented by DOJ, the determination shall be coordinated with DOJ which may respond to the issuer of the subpoenas or demand in lieu of the Appropriate Authority.
§ 105-60.1006   Procedure where response to demand is required prior to receiving instructions.
(a) If a response to a demand is required before the Appropriate Authority's decision is issued, a GSA attorney designated by the Appropriate Authority for the purpose shall appear with the employee or former employee upon whom the demand has been made, and shall furnish the judicial or other authority with a copy of the instructions contained in this subpart. The attorney shall inform the court or other authority that the demand has been or is being referred for the prompt consideration by the Appropriate Authority. The attorney shall respectfully request the judicial or administrative authority to stay the demand pending receipt of the requested instructions.
(b) The designated GSA attorney shall coordinate GSA's response with DOJ's Civil Division or the relevant Office of the United States Attorney and may request that a DOJ or Assistant United States Attorney appear with the employee in addition to or in lieu of a designated GSA attorney.
(c) If an immediate demand for production or disclosure is made in circumstances which preclude the appearance of a GSA or DOJ attorney on the behalf of the employee or the former employee, the employee or former employee shall respectfully make a request to the demanding authority for sufficient time to obtain advice of counsel.
§ 105-60.1007   Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 105-60.606 pending receipt of instructions, or if the court or other authority rules that the demand must be complied with irrespective of instructions by the Appropriate Authority not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply, citing these instructions and the decision of the United States Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
§ 105-60.1008   Fees, expenses, and costs.
(a) In consultation with the Appropriate Authority, a current employee who appears as a witness pursuant to a demand shall ensure that he or she receives all fees and expenses, including travel expenses, to which witnesses are entitled pursuant to rules applicable to the judicial or administrative proceedings out of which the demand arose.
(b) Witness fees and reimbursement for expenses received by a GSA employee shall be disposed of in accordance with rules applicable to Federal employees in effect at the time.
(c) Reimbursement to the GSA for costs associated with producing material pursuant to a demand shall be determined in accordance with rules applicable to the proceedings out of which the demand arose.
§ 105-62.000   Scope of part.
This part prescribes procedures for safeguarding national security information and material within GSA. They explain how to identify, classify, downgrade, declassify, disseminate, and protect such information in the interests of national security. They also supplement and conform with Executive Order 12065 dated June 28, 1978, subject: National Security Information, and the Implementing Directive dated September 29, 1978, issued through the Information Security Oversight Office.
§ 105-62.101   Security classification categories.
As set forth in Executive Order 12065, official information or material which requires protection against unauthorized disclosure in the interests of the national defense or foreign relations of the United States (hereinafter collectively termed “national security”) shall be classified in one of three categories: Namely, Top Secret, Secret, or Confidential, depending on its degree of significance to the national security. No other categories shall be used to identify official information or material as requiring protection in the interests of national security except as otherwise expressly provided by statute. The three classification categories are defined as follows:
(a) Top Secret. Top Secret refers to that national security information which requires the highest degree of protection, and shall be applied only to such information as the unauthorized disclosure of which could reasonably be expected to cause exceptionally grave damage to the national security. Examples of exceptionally grave damage include armed hostilities against the United States or its allies, disruption of foreign relations vitally affecting the national security, intelligence sources and methods, and the compromise of vital national defense plans or complex cryptologic and communications systems. This classification shall be used with the utmost restraint.
(b) Secret. Secret refers to that national security information or material which requires a substantial degree of protection, and shall be applied only to such information as the unauthorized disclosure of which could reasonably be expected to cause serious damage to the national security. Examples of serious damage include disruption of foreign relations significantly affecting the national security, significant impairment of a program or policy directly related to the national security, and revelation of significant military plans or intelligence operations. This classification shall be used sparingly.
(c) Confidential. Confidential refers to other national security information which requires protection, and shall be applied only to such information as the unauthorized disclosure of which could reasonably be expected to cause identifiable damage to the national security.
§ 105-62.102   Authority to originally classify.
(a) Top secret, secret, and confidential. The authority to originally classify information as Top Secret, Secret, or Confidential may be exercised only by the Administrator and is delegable only to the Director, Information Security Oversight Office.
(b) Limitations on delegation of classification authority. Delegations of original classification authority are limited to the minimum number absolutely required for efficient administration. Delegated original classification authority may not be redelegated.
§ 105-62.103   Access to GSA-originated materials.
Classified information shall not be disseminated outside the executive branch of the Government without the express permission of the GSA Security Officer except as otherwise provided in this § 105-62.103.
(a) Access by historical researchers. Persons outside the executive branch who are engaged in historical research projects, may be authorized access to classified information or material, provided that:
(1) A written determination is made by the Administrator of General Services that such access is clearly consistent with the interests of national security.
(2) Access is limited to that information over which GSA has classification jurisdiction.
(3) The material requested is reasonably accessible and can be located with a reasonable amount of effort.
(4) The person agrees to safeguard the information and to authorize a review of his or her notes and manuscript for determination that no classified information is contained therein by signing a statement entitled “Conditions Governing Access to Official Records for Historical Research Purposes.”
(5) An authorization for access shall be valid for a period of 2 years from the date of issuance and may be renewed under the provisions of this § 105-62.103(a).
(b) Access by former Presidential appointees. Persons who previously occupied policymaking positions to which they were appointed by the President may not remove classified information or material upon departure from office as all such material must remain under the security control of the U.S. Government. Such persons may be authorized access to classified information or material which they originated, received, reviewed, signed, or which was addressed to them while in public office, provided that the GSA element having classification jurisdiction for such information or material makes a written determination that access is consistent with the interests of national security, approval is granted by the GSA Security Officer, and the individual seeking access agrees:
(1) To safeguard the information,
(2) To authorize a review of his or her notes for determination that no classified information is contained therein, and
(3) To ensure that no classified information will be further disseminated or published.
(c) Access during judicial proceedings. Classified information will not normally be released in the course of any civilian judicial proceeding. In special circumstances however, and upon the receipt of an order or subpoena issued by a Federal court, the Administrator may authorize the limited release of classified information if he or she determines that the interests of justice cannot otherwise be served. Appropriate safeguards will be established to protect such classified material released for use in judicial proceedings.
(d) Access to material in NARS custody. The Archivist of the United States prepares procedures governing access to materials transferred to NARS custody. These procedures are issued by the Administrator of General Services in 41 CFR part 105-61.
(e) Access by the General Accounting Office and congressional committees. Classified information may be released to the General Accounting Office (GAO) and congressional committees when specifically authorized by the GSA Security Officer except as otherwise provided by law.
§ 105-62.201   Declassification and downgrading.
(a) Authority to downgrade and declassify. The authority to downgrade and declassify national security information or material shall be exercised as follows:
(1) Information or material may be downgraded or declassified by the GSA official authorizing the original classification, by a successor in capacity, by a supervisory official of either, or by the Information Security Oversight Committee on appeal.
(2) Downgrading and declassification authority may also be exercised by an official specifically authorized by the Administrator.
(3) In the case of classified information or material officially transferred to GSA by or under statute or Executive order in conjunction with a transfer of functions and not merely for storage purposes, GSA shall be deemed the originating agency for all purposes under these procedures including downgrading and declassification.
(4) In the case of classified information or material held in GSA not officially transferred under paragraph (a)(3) of this section but originated in an agency which has since ceased to exist, GSA is deemed the originating agency. Such information or material may be downgraded and declassified 30 calendar days after consulting with any other agencies having an interest in the subject matter.
(5) Classified information or material under the final declassification jurisdiction of GSA which has been transferred to NARS for accession into the Archives of the United States may be downgraded and declassified by the Archivist of the United States in accordance with Executive Order 12065, directives of the Information Security Oversight Office, and the systematic review guidelines issued by the Administrator of General Services.
(6) It is presumed that information which continues to meet classification requirements requires continued protection. In some cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise they shall be referred to the Administrator, the Director of the Information Security Oversight Office, or in accordance with the procedures for mandatory review described in § 105-62.202(b).
(b) Declassification. Declassification of information shall be given emphasis comparable to that accorded classification. Information classified under Executive Order 12065 and prior orders shall be declassified as early as national security considerations permit. Decisions concerning declassification shall be based on the loss of sensitivity of the information with the passage of time or on the occurrence of an event which permits declassification. When information is reviewed for declassification it shall be declassified unless the declassification authority established in § 105-62.202 determines that the information continues to meet the classification requirements prescribed despite the passage of time.
(c) Downgrading. Classified information that is marked for automatic downgrading is downgraded accordingly without notification to holders. Classified information that is not marked for automatic downgrading may be assigned a lower classification designation by the originator or by an official authorized to declassify the same information. Notice of downgrading shall be provided to known holders of the information.
§ 105-62.202   Review of classified materials for declassification purposes.
(a) Systematic review for declassification. Except for foreign government information, classified information constituting permanently valuable records of GSA as defined by 44 U.S.C. 2103, and information in the possession and under control of NARA, under 44 U.S.C. 2107 or 2107 note, shall be reviewed for declassification as it becomes 20 years old. Transition to systematic review at 20 years shall be implemented as rapidly as practicable and shall be completed by December 1, 1988. Foreign government information shall be reviewed for declassification as it becomes 30 years old.
(b) Mandatory review for declassification. All classified information upon request by a member of the public or a Government employee or agency to declassify and release such information under the provisions of Executive Order 12065 shall be reviewed by the responsible GSA element for possible declassification in accordance with the procedures set forth in paragraphs (c) through (g) of this section.
(c) Submission of requests for review. Requests for mandatory review of classified information shall be submitted in accordance with the following:
(1) Requests originating within GSA shall in all cases be submitted directly to the service or staff office that originated the information.
(2) For expeditious action, requests from other governmental agencies or from members of the public should be submitted directly to the service or staff office that originated the material, or, if the originating element is not known, or no longer exists, the requester shall submit the request to the GSA Security Officer who shall cause such request to be reviewed.
(d) Requirements for processing. Requests for declassification review and release of information shall be processed in accordance with the provisions set forth in paragraphs (e) through (h) of this section subject to the following conditions:
(1) The request is in writing and reasonably describes the information sought with sufficient particularity to enable the element to identify it.
(2) The requester shall be asked to correct a request that does not comply with paragraph (d)(1) of this section, to provide additional information.
(3) If within 30 days the requester does not correct the request, describe the information sought with sufficient particularity or narrow the scope of the request, the element that received the request shall notify the requester and state the reason why no action will be taken on the request.
(e) Processing of requests. Requests that meet the foregoing requirements for processing will be acted upon as follows:
(1) GSA action upon the initial request shall be completed within 60 days.
(2) Receipt of the request shall be acknowledged within 7 days.
(3) The designated service or staff office shall determine if the requested information may be declassified and shall make such information available to the requester, unless withholding it is otherwise warranted under applicable law. If the information may not be released in whole or in part, the requester shall be given a brief statement as to the reasons for denial, a notice of the right to appeal the determination to the Deputy Administrator (the notice shall include the Deputy Administrator's name, title, and address), and a notice that such an appeal must be filed with the Deputy Administrator within 60 days in order to be considered.
(f) Foreign government information. Except as provided hereinafter, requests for mandatory review for the declassification of classified documents that contain foreign government information shall be processed and acted upon in accordance with the provisions of paragraphs (c) through (e) of this section. If the request involves information that was initially received or classified by GSA, then the corresponding service or staff office shall be designated by the GSA Security Officer to determine whether the foreign government information in the document may be declassified and released in accordance with GSA policy or guidelines, after consulting with other agencies that have subject matter interest as necessary. If GSA is not the agency that received or classified the foreign government information, it shall refer the request to the appropriate agency. In those cases where agency policy or guidelines do not apply, consultation with the foreign originator, through the GSA Security Officer, may be made prior to final action on the request.
(g) Information classified outside the service or staff office. When a service or staff office receives a request for declassification of information in a document which is in the custody of the service or staff office but was classified by another service or staff office or by another Government agency, the service or staff office shall refer the request to the classifying service or staff office or Government agency, together with a copy of the document containing the information requested when practicable, and shall notify the requester of the referral, unless the agency that classified the information objects on the grounds that its association with the information requires protection. When a GSA service or staff office receives such a referral, it shall process the request in accordance with the requirements of this paragraph and, if so requested, shall notify the referring service, staff office, or agency of the determination made on the request.
(h) Action on appeal. The following procedures shall be followed when denials of requests for declassification are appealed:
(1) The Deputy Administrator shall, within 15 days of the date of the appeal, convene a meeting of the GSA Information Security Oversight Committee (ISOC) that shall include the GSA Security Officer, or his or her representative, and the GSA official who denied the original request (and, at the option of that official, any subordinates or personnel from other agencies that participated in the decision for denial).
(2) The ISOC shall learn from the official the reasons for denying the request, concentrating in particular upon which requirement continued classification is based and the identifiable damage that would result if the information were declassified. The ISOC shall also learn from the official the part or parts of the information that is classified and if by deleting minor segments of the information it might not then be declassified.
(3) The ISOC's decision to uphold or deny the appeal, in whole or in part, shall be based upon the unanimous opinion of its membership. In the event that unanimity cannot be attained, the matter shall be referred to the Administrator, whose decision shall be final.
(4) Based upon the outcome of the appeal, a reply shall be made to the person making the appeal that either encloses the requested information or part of the information, or explains why the continued classification of the information is required. A copy of the reply shall be sent to the GSA official who originally denied the request for declassification, to the GSA Security Officer, and to any other agency expressing an interest in the decision.
(5) Final action on appeals shall be completed within 30 days of the date of the appeal.
(i) Prohibition. No service of staff office in possession of a classified document may refuse to confirm the existence of the document in response to a request for the document under the provisions for mandatory review, unless the fact of its existence would itself be classifiable.
(j) Presidential papers. Information less than 10 years old which was originated by the President, by the White House staff, or by committees or commissions appointed by the President, or by others acting on behalf of the President, is exempted from mandatory review for declassification. Such information 10 years old or older is subject to mandatory review for declassification in accordance with procedures developed by the Archivist of the United States which provide for consultation with GSA on matters of primary subject interest to this agency.
§ 105-64.000   What is the purpose of this part?
This part implements the General Services Administration (GSA) rules under the Privacy Act of 1974, 5 U.S.C. 552a, as amended. The rules cover the GSA systems of records from which information is retrieved by an individual's name or personal identifier. These rules set forth GSA's policies and procedures for accessing, reviewing, amending, and disclosing records covered by the Privacy Act. GSA will comply with all existing and future privacy laws.
§ 105-64.001   What terms are defined in this part?
GSA defines the following terms to ensure consistency of use and understanding of their meaning under this part:
Agency means any organization covered by the Privacy Act as defined in 5 U.S.C. 551(1) and 5 U.S.C. 552a (a)(1). GSA is such an agency.
Computer matching program means the computerized comparison of two or more Federal personnel or payroll systems of records, or systems of records used to establish or verify an individual's eligibility for Federal benefits or to recoup delinquent debts.
Disclosure of information means providing a record or the information in a record to someone other than the individual of record.
Exempt records means records exempted from access by an individual under the Privacy Act, subsections (j)(1), Central Intelligence Agency, (j)(2) and (k)(2), law enforcement, (k)(1), Section 552 (b)(1), (k)(3), protective services to the President,(k)(4), statistical records, (k)(5), employee background investigations, (k)(6), federal service disclosure, and (k)(7), promotion in armed services.
Individual means a citizen of the United States or a legal resident alien on whom GSA maintains Privacy Act records. An individual may be addressed as you when information is provided for the individual's use.
Personally Identifiable Information (PII) means information about a person that contains some unique identifier, including but not limited to name or Social Security Number, from which the identity of the person can be determined. In OMB Circular M-06-19, the term “Personally Identifiable Information” is defined as any information about an individual maintained by an agency, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and information which can be used to distinguish or trace an individual's identity, such as their name, Social Security Number, date and place of birth, mother's maiden name, biometric records, including any other personal information which can be linked to an individual.
Record means any item, collection, or grouping of information about an individual within a system of records which contains the individual's name or any other personal identifier such as number or symbol, fingerprint, voiceprint, or photograph. The information may relate to education, financial transactions, medical conditions, employment, or criminal history collected in connection with an individual's interaction with GSA.
Request for access means a request by an individual to obtain or review his or her record or information in the record.
Routine use means disclosure of a record outside GSA for the purpose for which it is intended, as specified in the systems of records notices.
Solicitation means a request by an officer or employee of GSA for an individual to provide information about himself or herself for a specified purpose.
System of records means a group of records from which information is retrieved by the name of an individual, or by any number, symbol, or other identifier assigned to that individual.
System manager means the GSA associate responsible for a system of records and the information in it, as noted in the Federal Register systems of records notices.
Un-redacted SSN Mailed Documents Listing (USMDL) means the Agency approved list, as posted at www.gsa.gov/reference/gsa-privacy-program, designating those documents for which the inclusion of the Social Security account number (SSN) is determined to be necessary to fulfill a compelling Agency business need when the documents are requested by individuals outside the Agency or other Federal agencies, as determined by the Administrator or their designee.
§ 105-64.101   Who is responsible for enforcing these rules?
GSA Heads of Services and Staff Offices and Regional Administrators are responsible for ensuring that all systems of records under their jurisdiction meet the provisions of the Privacy Act and these rules. System managers are responsible for the system(s) of records assigned to them. The GSA Privacy Act Officer oversees the GSA Privacy Program and establishes privacy-related policy and procedures for the agency under the direction of the GSA Senior Agency Official for Privacy.
§ 105-64.102   What is GSA's policy on disclosure of information in a system of records?
No information contained in a Privacy Act system of records will be disclosed to third parties without the written consent of you, the individual of record, except under the conditions cited in § 105-64.501.
§ 105-64.103   What is GSA's policy on collecting and using information in a system of records?
System managers must collect information that is used to determine your rights, benefits, or privileges under GSA programs directly from you whenever practical, and use the information only for the intended purpose(s).
§ 105-64.104   What must the system manager tell me when soliciting personal information?
When soliciting information from you or a third party for a system of records, system managers must: Cite the authority for collecting the information; say whether providing the information is mandatory or voluntary; give the purpose for which the information will be used; state the routine uses of the information; and describe the effect on you, if any, of not providing the information. This information is found in the Privacy Act Statement. Any form that asks for personal information will contain this statement.
§ 105-64.105   When may Social Security Numbers (SSNs) be collected?
(a) Statutory or regulatory authority must exist for collecting Social Security Numbers for record systems that use the SSNs as a method of identification. Systems without statutory or regulatory authority implemented after January 1, 1975, will not collect Social Security Numbers.
(b) In compliance with OMB M-07-16 (Safeguarding Against and Responding to the Breach of Personally Identifiable Information) collection and storage of SSN will be limited to systems where no other identifier is currently available. While GSA will strive to reduce the collection and storage of SSN and other PII we recognize that some systems continue to need to collect this information.
§ 105-64.106   What is GSA's policy on information accuracy in a system of records?
System managers will ensure that all Privacy Act records are accurate, relevant, necessary, timely, and complete. All GSA systems are reviewed annually. Those systems that contain Personally Identifiable Information (PII) are reviewed to ensure they are relevant, necessary, accurate, up-to-date, and covered by the appropriate legal or regulatory authority. A listing of GSA Privacy Act Systems can be found at the following link ( http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId = 21567 ).
§ 105-64.107   What standards of conduct apply to employees with privacy-related responsibilities?
(a) Employees who design, develop, operate, or maintain Privacy Act record systems will protect system security, avoid unauthorized disclosure of information, both verbal and written, and ensure that no system of records is maintained without public notice. All such employees will follow the standards of conduct in 5 CFR part 2635, 5 CFR part 6701, 5 CFR part 735, and 5 CFR part 2634 to protect personal information.
(b) Employees who have access to privacy act records will avoid unauthorized disclosure of personal information, both written and verbal, and ensure they have met privacy training requirements. All such employees will follow GSA orders HCO 9297.1 GSA Data Release Policy, HCO 9297.2A GSA Information Breach Notification Policy, HCO 2180.1 GSA Rules of Behavior for Handling Personally Identifiable Information (PII), CIO P 2100.1E CIO P GSA Information Technology (IT) Security Policy, and CIO 2104.1 GSA Information Technology (IT) General Rules of Behavior.
(c)(1) The following conditions must be met for the inclusion of an unredacted (full) SSN or partially redacted (truncated) SSN on any document sent by mail on behalf of the agency:
(i) The inclusion of the full SSN or truncated SSN of an individual must be required or authorized by law; and
(ii) The document must be listed on the USMDL.
(2) Even when the conditions set forth in paragraph (c)(1) are met, employees shall redact SSNs in all documents sent by mail where feasible. Where full redaction is not possible due to agency requirements, partial redaction to create a truncated SSN shall be preferred to no redaction.
(3) In no case shall any complete or partial SSN be visible on the outside of any envelope or package sent by mail or displayed on correspondence that is visible through the window of an envelope or package.
§ 105-64.108   How does GSA safeguard personal information?
(a) System managers will establish administrative, technical, and physical safeguards to ensure the security and confidentiality of records, protect the records against possible threats or hazards, and permit access only to authorized persons. Automated systems will incorporate security controls such as password protection, verification of identity of authorized users, detection of break-in attempts, firewalls, or encryption, as appropriate.
(b) System managers will ensure that employees and contractors who have access to personal information in their system will have the proper background investigation and meet all privacy training requirements.
§ 105-64.109   How does GSA handle other agencies' records?
In cases where GSA has either permanent or temporary custody of other agencies' records, system managers will coordinate with those agencies on any release of information. Office of Personnel Management (OPM) records that are in GSA's custody are subject to OPM's Privacy Act rules.
§ 105-64.110   When may GSA establish computer matching programs?
(a) System managers will establish computer matching programs or agreements for sharing information with other agencies only with the consent and under the direction of the GSA Data Integrity Board that will be established when and if computer matching programs are used at GSA.
(b) GSA will designate which positions comprise the Data Integrity Board and develop a policy that defines the roles and responsibilities of these positions.
§ 105-64.111   What is GSA's policy on directives that may conflict with this part?
These rules take precedence over any GSA directive that may conflict with the requirements stated here. GSA officials will ensure that no such conflict exists in new or existing directives.
§ 105-64.201   How do I get access to my records?
You may request access to your record in person or by writing to the system manager or, in the case of geographically dispersed records, to the office maintaining the records ( see appendix A to this part). Parents or guardians may obtain access to records of minors or when a court has determined that the individual of record is incompetent.
§ 105-64.202   How do I request access in person?
If appearing in person, you must properly identify yourself through photographic identification such as an agency identification badge, passport, or driver's license. Records will be available during normal business hours at the offices where the records are maintained. You may examine the record and be provided a copy on request. If you want someone else to accompany you when reviewing a record, you must first sign a statement authorizing the disclosure of the record; the statement will be maintained with your record.
§ 105-64.203   How do I request access in writing?
If you request access in writing, mark both the envelope and the request letter “Privacy Act Request”. Include in the request your full name and address; a description of the records you seek; the title and number of the system of records as published in the Federal Register; a brief description of the nature, time, and place of your association with GSA; and any other information you believe will help in locating the record.
§ 105-64.204   Can parents and guardians obtain access to records?
If you are the parent or guardian of a minor, or of a person judicially determined to be incompetent, you must provide full information about the individual of record. You also must properly identify yourself and provide a copy of the birth certificate of the individual, or a court order establishing guardianship, whichever applies.
§ 105-64.205   Who will provide access to my record?
The system manager will make a record available to you on request, unless special conditions apply, such as for medical, law enforcement, and security records.
§ 105-64.206   How long will it take to get my record?
The system manager will make a record available within 10 workdays after receipt of your request. If a delay of more than 10 workdays is expected, the system manager will notify you in writing of the reason for the delay and when the record will be available. The system manager may ask you for additional information to clarify your request. The system manager will have an additional 10 workdays after receipt of the new information to provide the record to you, or provide another acknowledgment letter if a delay in locating the record is expected.
§ 105-64.207   Are there any fees?
No fees are charged for records when the total fee is less than $25. The system manager may waive the fee above this amount if providing records without charge is customary or in the public interest. When the cost exceeds $25, the fee for a paper copy is 10 cents per page, and the fee for materials other than paper copies is the actual cost of reproduction. For fees above $250, advance payment is required. You should pay by check or money order made payable to the General Services Administration, and provide it to the system manager.
§ 105-64.208   What special conditions apply to release of medical records?
Medical records containing information that may have an adverse effect upon a person will be released only to a physician designated in writing by you, or by your guardian or conservator. Medical records in an Official Personnel Folder (OPF) fall under the jurisdiction of the Office of Personnel Management (OPM) and will be referred to OPM for a response.
§ 105-64.209   What special conditions apply to accessing law enforcement and security records?
Law enforcement and security records are generally exempt from disclosure to individuals except when the system manager, in consultation with legal counsel and the Head of the Service or Staff Office or Regional Administrator or their representatives, determines that information in a record has been used or is being used to deny you any right, privilege, or benefit for which you are eligible or entitled under Federal law. If so, the system manager will notify you of the existence of the record and disclose the information, but only to the extent that the information does not identify a confidential source. If disclosure of information could reasonably be expected to identify a confidential source, the record will not be disclosed to you unless it is possible to delete all such information. A confidential source is a person or persons who furnished information during Federal investigations with the understanding that his or her identity would remain confidential.
§ 105-64.301   Under what conditions will I be denied access to a record?
The system manager will deny access to a record that is being compiled in the reasonable anticipation of a civil action or proceeding or to records that are specifically exempted from disclosure by GSA in its system of records notices, published in the Federal Register. Exempted systems include the Investigation Case Files, Internal Evaluation Case Files, and Security Files. These systems are exempted to maintain the effectiveness and integrity of investigations conducted by the Office of Inspector General, and others, as part of their duties and responsibilities involving Federal employment, contracts, and security.
§ 105-64.302   How will I be denied access?
If you request access to a record in an exempt system of records, the system manager will consult with the Head of Service or Staff Office or Regional Administrator or their representatives, legal counsel, and other officials as appropriate, to determine if all or part of the record may be disclosed. If the decision is to deny access, the system manager will provide a written notice to you giving the reason for the denial and your appeal rights.
§ 105-64.303   How do I appeal a denial to access a record?
If you are denied access to a record in whole or in part, you may file an administrative appeal within 30 days of the denial. The appeal should be in writing and addressed to: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street, NW., Washington, DC 20405. Mark both the envelope and the appeal letter “Privacy Act Appeal”.
§ 105-64.304   How are administrative appeal decisions made?
The GSA Privacy Act Officer will conduct a review of your appeal by consulting with legal counsel and appropriate officials. The Privacy Act Officer may grant record access if the appeal is granted. If the decision is to reject the appeal, the Privacy Act Officer will provide all pertinent information about the case to the Deputy Administrator and ask for a final administrative decision. The Deputy Administrator may grant access to a record, in which case the Privacy Act Officer will notify you in writing, and the system manager will make the record available to you. If the Deputy Administrator denies the appeal, he or she will notify you in writing of the reason for rejection and of your right to a judicial review. The administrative appeal review will take no longer than 30 workdays after the Privacy Act Officer receives the appeal. The Deputy Administrator may extend the time limit by notifying you in writing of the extension and the reason for it before the 30 days are up.
§ 105-64.305   What is my recourse to an appeal denial?
You may file a civil action to have the GSA administrative decision overturned within two years after the decision is made. You may file in a Federal District Court where you live or have a principal place of business, where the records are maintained, or in the District of Columbia.
§ 105-64.401   Can I amend my record?
You may request to amend your record by writing to the system manager with the proposed amendment. Mark both the envelope and the letter “Privacy Act Request to Amend Record”.
§ 105-64.402   What records are not subject to amendment?
You may not amend the following records under the law:
(a) Transcripts of testimony given under oath or written statements made under oath.
(b) Transcripts of grand jury proceedings, judicial proceedings, or quasi-judicial proceedings which constitute the official record of the proceedings.
(c) Pre-sentence reports that are maintained within a system of records but are the property of the courts.
(d) Records exempted from amendment by notice published in the Federal Register.
§ 105-64.403   What happens when I submit a request to amend a record?
The system manager will consult with the Head of Service or Staff Office or Regional Administrator or their representatives, and legal counsel. They will determine whether to amend an existing record by comparing its accuracy, relevance, timeliness, and completeness with the amendment you propose. The system manager will notify you within 10 workdays whether your proposed amendment is approved or denied. In case of an expected delay, the system manager will acknowledge receipt of your request in writing and provide an estimate of when you may expect a decision. If your request to amend is approved, the system manager will amend the record and send an amended copy to you and to anyone who had previously received the record. If your request to amend is denied, the system manager will advise you in writing, giving the reason for denial, a proposed alternative amendment if possible, and your appeal rights. The system manager also will notify the GSA Privacy Act Officer of any request for amendment and its disposition. Any amendment to a record may involve a person's Official Personnel Folder (OPF). OPF regulations are governed by OPM regulations, including alternate amendments and appeals of denials, and not GSA regulations.
§ 105-64.404   What must I do if I agree to an alternative amendment?
If you agree to the alternative amendment proposed by the system manager, you must notify the manager in writing of your concurrence. The system manager will amend the record and send an amended copy to you and to anyone else who had previously received the record.
§ 105-64.405   Can I appeal a denial to amend a record?
You may file an appeal within 30 workdays of a denial to amend your record by writing to the: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street, NW., Washington, DC 20405. Mark both the envelope and the appeal letter “Privacy Act Amendment Appeal.” Appeals to amend records in a GSA employee's official personnel file will be sent to the Office of Personnel Management, Washington, DC 20415.
§ 105-64.406   How will my appeal be handled?
The GSA Privacy Act Officer will consult with legal counsel and appropriate GSA officials concerning your appeal. If they decide to reject your appeal, the Privacy Act Officer will provide the Deputy Administrator with all pertinent information about the case and request a final administrative decision. The Deputy Administrator may approve your amendment, in which case the Privacy Act Officer will notify you in writing, and the system manager will amend the record and send an amended copy to you and anyone who had previously been provided with the record. If the Deputy Administrator denies the appeal, he or she will notify you in writing of the reason for denial, of your right to a judicial review, and of your right to file a Statement of Disagreement. The amendment appeal review will be made within 30 workdays after the Privacy Act Officer receives your appeal. The Deputy Administrator may extend the time limit by notifying you in writing of the reason for the extension before the 30 days are up.
§ 105-64.407   How do I file a Statement of Disagreement?
You may file a Statement of Disagreement with the system manager within 30 days of the denial to amend a record. The statement should explain why you believe the record to be inaccurate, irrelevant, untimely, or incomplete. The system manager will file the statement with your record, provide a copy to anyone who had previously received the record, and include a copy of it in any future disclosure.
§ 105-64.408   What is my recourse to a denial decision?
You may file a civil action to have the GSA decision overturned within two years after denial of an amendment appeal. You may file the civil action in a Federal District Court where you live or have a principal place of business, where the records are maintained, or in the District of Columbia.
§ 105-64.501   Under what conditions may a record be disclosed without my consent?
A system manager may disclose your record without your consent under the Privacy Act when the disclosure is: To GSA officials or employees in the performance of their official duties; required by the Freedom of Information Act; for a routine use stated in a Federal Register notice; to the Bureau of the Census for use in fulfilling its duties; for statistical research or reporting, and only when the record is not individually identifiable; to the National Archives and Records Administration (NARA) when the record has been determined to be of historical or other value that warrants permanent retention; to a U.S. law enforcement agency or instrumentality for a civil or criminal law enforcement purpose; under compelling circumstances affecting an individual's health and safety, and upon disclosure a notification will be sent to the individual; to Congress or its committees and subcommittees when the record material falls within their jurisdiction; to the Comptroller General or an authorized representative in the performance of the duties of the Government Accountability Office (GAO); under a court order; or to a consumer reporting agency under the Federal Claims Collection Act of 1966, 31 U.S.C. 3711.
§ 105-64.502   How do I find out if my record has been disclosed?
You may request an accounting of the persons or agencies to whom your record has been disclosed, including the date and purpose of each disclosure, by writing to the system manager. Mark both the envelope and the letter “Privacy Act Accounting Request”. The system manager will provide the requested information in the same way as that for granting access to records; see Subpart 105-64.2, providing no restrictions to disclosure or accounting of disclosures applies.
§ 105-64.503   What is an accounting of disclosures?
The system manager maintains an account of each record disclosure for five years or for the life of the record, whichever is longer. The accounting of disclosure information includes the name of the person or agency to whom your record has been provided, the date, the type of information disclosed, and the reason for disclosure. Other pertinent information, such as justifications for disclosure and any written consent that you may have provided, is also included. No accounting needs to be maintained for disclosures to GSA officials or employees in the performance of their duties, or disclosures under the Freedom of Information Act.
§ 105-64.504   Under what conditions will I be denied an accounting of disclosures?
The system manager will deny your request for an accounting of disclosures when the disclosures are to GSA officials or employees in the performance of their duties or disclosures under the Freedom of Information Act, for which no accounting is required; law enforcement agencies for law enforcement activities; and systems of records exempted by notice in the Federal Register. You may appeal a denial using the same procedures as those for denial of access to records, see Subpart 105-64.3.
§ 105-64.601   Procedures for establishing system of records.
The following procedures apply to any proposed new or revised system of records:
(a) Before establishing a new or revising an existing system of records, the system manager, with the concurrence of the appropriate Head of Service or Staff Office, will provide to the GSA Privacy Act Officer a proposal describing and justifying the new system or revision.
(b) A Privacy Impact Assessment (PIA) will be filled out to determine if a system notice needs to be completed.
(c) The GSA Privacy Act Officer will work with the program office to create the draft system of notice document.
(d) The GSA Privacy Office will work with various offices to take the draft system notice through the concurrence process.
(e) The GSA Privacy Act Officer will publish in the Federal Register a notice of intent to establish or revise the system of records at least 30 calendar days before the planned system establishment or revision date.
(f) The new or revised system becomes effective 30 days after the notice is published in the Federal Register unless submitted comments result in a revision to the notice, in which case, a new revised notice will be issued.
(g) When publishing a new system notice letters will be sent to the Chairman, Committee on Homeland Security and Governmental Affairs, Chairman, Committee on Oversight and Government Reform, and the Docket Library Office of Information and Regulatory Affairs, Office of Management and Budget.
§ 105-64.701   Submittal of requests for assistance and referrals.
Address requests for assistance involving GSA Privacy Act rules and procedures, or for referrals to system managers or GSA officials responsible for implementing these rules to: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street, NW., Washington, DC 20405.
§ 105-64.801   How to file a privacy complaint.
E-mail your complaint to gsa.privacyact@gsa.gov or send to: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street NW., Washington, DC 20405. Please provide as much details about the complaint in the communication. Provide contact information where you prefer all communication to be sent. The Privacy Officer will conduct an investigation and consult with appropriate GSA officials and legal counsel to render a decision within 30 workdays of the complaint being received by the privacy office. The decision will be sent by the method the complaint was received.
§ 105-64.802   Can I appeal a decision to a privacy complaint?
You may file an appeal within 30 workdays of a denial of a privacy complaint by writing to: GSA Privacy Act Officer (CIB), General Services Administration, 1800 F Street NW., Washington, DC 20405. Mark both the envelope and appeal letter “Privacy Act Complaint appeal”.
§ 105-64.803   How will my appeal be handled?
The Privacy Act Officer will consult with legal counsel and the appropriate GSA officials concerning your appeal. The decision will be made by the Senior Agency Official for Privacy. The decision will be sent within 30 workdays of the appeal being received by the privacy office. The decision provided in the appeal letter is the final recourse.
§ 105-67.100   Scope of subpart.
This subpart prescribes policies and procedures governing the debarment or suspension of contractors from purchases of Federal personal property (see FPMR part 101-45).
§ 105-67.101   Debarred, suspended and ineligible contractors.
The policies, procedures and requirements of subpart 509.4 of the General Services Administration Acquisition Regulation (GSAR) are incorporated by reference and made applicable to contracts for, and to contractors who engage in, the purchase of Federal personal property.
§ 105-68.25   How is this part organized?
(a) This part is subdivided into ten subparts. Each subpart contains information related to a broad topic or specific audience with special responsibilities, as shown in the following table:
(b) The following table shows which subparts may be of special interest to you, depending on who you are:
§ 105-68.50   How is this part written?
(a) This part uses a “plain language” format to make it easier for the general public and business community to use. The section headings and text, often in the form of questions and answers, must be read together.
(b) Pronouns used within this part, such as “I” and “you,” change from subpart to subpart depending on the audience being addressed. The pronoun “we” always is the General Services Administration.
(c) The “Covered Transactions” diagram in the appendix to this part shows the levels or “tiers” at which the General Services Administration enforces an exclusion under this part.