This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

5409 

Vol. 87, No. 21 

Tuesday, February 1, 2022 

OFFICE OF SPECIAL COUNSEL 

5 CFR Chapter VIII 

Prohibited Personnel Practices, 

Disclosures of Information Evidencing 

Wrongdoing, FOIA, Privacy Act, and 

Disability Regulations To Conform 

With Changes in Law and Filing 

Procedures and Other Technical 

Changes 

AGENCY: U.S. Office of Special Counsel. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Office of Special 

Counsel (OSC) proposes to revise its 

regulations regarding the filing of 

complaints and disclosures with OSC, 

to update the prohibited personnel 

practice provisions, Freedom of 

Information Act (FOIA) provisions, 

Privacy Act provisions, provisions 

concerning nondiscrimination based on 

disability, and to make other technical 

revisions. These revisions are intended 

to streamline OSC’s filing procedures 

and reflect changes in law. 

DATES: Interested parties should submit 

comments to the Office of Special 

Counsel at one of the addresses shown 

below on or before March 3, 2022 to be 

considered in the formulation of a final 

rule. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: frliaison@osc.gov. Include 

‘‘FY2022 Proposed Reg Comments’’ in 

the subject line of the email. 

Comments received may be posted to 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Susan Ullman, General Counsel, U.S. 

Office of Special Counsel, by telephone 

at 202–804–7000, or by email at 

sullman@osc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

OSC is proposing to revise its 

regulations pursuant to OSC’s authority 

at 5 U.S.C. 1212(e). 

I. Changes Concerning the Filing of 

Complaints and Disclosures of 

Information Evidencing Wrongdoing 

The proposed rulemaking adds a new 

scope and purpose section at 5 CFR 

1800.1 and redesignates the current 

§§ 1800.1–1800.3 as §§ 1800.2–1800.4 

respectively. The proposed rule revises 

the language at the new § 1800.2(c)(1) 

through (5) and (d), and § 1800.3(b)(1) 

and (2) by replacing references to 

various OSC complaint forms with 

references to a general complaint form 

established by OSC, currently ‘‘Form 

14,’’ that OMB approved on March 6, 

2020. The proposed rule also adds a 

paragraph at the new § 1800.2(c)(3) to 

define when a complaint contains 

sufficient information for OSC to 

investigate the allegations. 

II. Changes Concerning Prohibited 

Personnel Practices and Hatch Act 

The proposed rulemaking updates the 

prohibited personnel practice 

provisions to use more consistent 

terminology throughout. It also amends 

new § 1800.2(a)(9) to conform with 

amendments made to 5 U.S.C. 

2302(b)(9)(D) by the Follow the Rules 

Act, Public Law 115–40, and sec. 

1097(c)(1)(A) of Public Law 115–91. It 

also adds two new paragraphs at the 

new § 1800.2(a)(13)–(14), based on 

amendments made to 5 U.S.C. 

2302(b)(13)–(14) which concern the use 

of agency nondisclosure agreements and 

the access of employee medical files in 

furtherance of a different PPP. The 

proposed rulemaking also moves the 

procedures for filing a Hatch Act 

complaint and requesting a Hatch Act 

advisory opinion into the same section. 

III. Changes Concerning Disclosures of 

Information Evidencing Wrongdoing 

The proposed rulemaking amends the 

new § 1800.3(a) to add language from 

sec. 110 of the Whistleblower Protection 

Enhancement Act of 2012, which 

clarified that censorship of scientific or 

technical information could qualify as a 

type of agency wrongdoing under 5 

U.S.C. 2302(b)(8). 

IV. Clarification of OSC’s Investigative 

Authority 

Based on sec. 1097(a) of Public Law 

115–91, the proposed rulemaking adds 

a new section at 5 CFR 1810.2 to clarify 

OSC’s right to timely access to all 

agency records, even if those records 

contain privileged information. 

Providing privileged information to OSC 

does not waive the agency’s privilege 

with respect to nongovernment third 

parties. OSC is required to submit a 

report to Congress if an agency fails to 

comply with a request for documents 

from OSC. The proposed rule adds a 

new section at 5 CFR 1810.3 based on 

sec. 1097(f) of Public Law 115–91, 

which delineates OSC’s authority to 

promptly terminate investigations if 

certain criteria are met. Finally, the 

proposed rule adds a new section at 5 

CFR 1810.4 that states that, to protect 

the integrity of an OSC investigation, 

agencies should use liaisons that do not 

have perceived or actual involvement 

with the personnel actions at issue. 

V. Changes Concerning FOIA and 

Privacy Act Regulations 

The proposed rule revises OSC’s 

FOIA regulations at part 1820 by 

updating the various methods for 

making a FOIA request, defining 

‘‘unusual circumstances,’’ and clarifying 

that no fees will be assessed if OSC fails 

to make a timely response. The 

proposed rule also revises OSC’s 

Privacy Act regulations by creating 

several new sections at 5 CFR part 1830 

to add a scope and purpose section, a 

definitions section, and other sections 

concerning the management of records 

at OSC. 

VI. Changes Concerning the 

Enforcement of Nondiscrimination 

Provisions 

The proposed rule revises OSC’s 

regulations implementing the 

Rehabilitation, Comprehensive Services, 

and Developmental Disabilities 

Amendments to the Rehabilitation Act, 

codified at subchapter V of chapter 16 

of title 29 of the U.S. Code, to update 

various definitions, processes, and 

procedures. 

Procedural Determinations 

Administrative Procedure Act (APA): 

This action is taken under the Special 

Counsel’s authority at 5 U.S.C. 1212(e) 

to publish regulations in the Federal 

Register. 

Executive Orders 12866 and 13771: 

This proposed rule is not a regulatory 

action under Executive Order (E.O.) 

13771 because OSC does not anticipate 

that this proposed rule will have 

significant economic impact, raise novel 

issues, and/or have any other significant 


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impacts. Thus, this proposed rule is not 

a significant regulatory action under 

section 3(f) of E.O. 12866 and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of the 

Order. 

Congressional Review Act (CRA): OSC 

has determined that this proposed rule 

is not a major rule under the 

Congressional Review Act, as it is 

unlikely to result in an annual effect on 

the economy of $100 million or more; is 

unlikely to result in a major increase in 

costs or prices for consumers, 

individual industries, federal, state, or 

local government agencies or geographic 

regions; and is unlikely to have a 

significant adverse effect on 

competition, employment, investment, 

productivity, or innovation, or on the 

ability of U.S.-based enterprises to 

compete in domestic and export 

markets. Pursuant to 5 U.S.C. 801(a), 

OSC will transmit a copy of the 

proposed rule to each House of the 

Congress and the Comptroller General. 

Regulatory Flexibility Act (RFA): The 

Regulatory Flexibility Act does not 

apply, even though this proposed rule is 

being offered for notice and comment 

procedures under the APA. This 

proposed rule will not directly regulate 

small entities. OSC therefore need not 

perform a regulatory flexibility analysis 

of small entity impacts. 

Unfunded Mandates Reform Act 

(UMRA): This proposed revision does 

not impose any federal mandates on 

state, local, or tribal governments, or on 

the private sector within the meaning of 

the UMRA. 

National Environmental Policy Act 

(NEPA): This proposed rule will have 

no physical impact upon the 

environment and therefore will not 

require any further review under NEPA. 

Paperwork Reduction Act (PRA): This 

rule does not contain any information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the PRA. 

List of Subjects 

5 CFR Parts 1800 and 1810 

Administrative practice and 

procedure. 

5 CFR Parts 1820 and 1830 

Archives and records, Reporting and 

recordkeeping requirements. 

5 CFR Part 1850 

Administrative practice and 

procedure, Buildings and facilities, 

Equal employment opportunity, Federal 

buildings and facilities, Individuals 

with disabilities. 

Approved: January 21, 2022. 

Travis G. Millsaps, 

Deputy Special Counsel for Public Policy. 

For the reasons stated in the 

preamble, the U.S. Office of Special 

Counsel proposes to amend chapter VIII 

of title 5 of the Code of Federal 

Regulations as follows: 

■ 1. Revise part 1800 to read as follows: 

PART 1800—FILING OF COMPLAINTS 

AND ALLEGATIONS 

Sec. 

1800.1 Scope and purpose. 

1800.2 Filing complaints of prohibited 

personnel practices or other prohibited 

activities. 

1800.3 Filing disclosures of information 

evidencing wrongdoing. 

1800.4 Filing complaints of Hatch Act 

violations and requesting advisory 

opinions. 

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

§ 1800.1 Scope and purpose. 

The purpose of this part is to 

implement the U.S. Office of Special 

Counsel’s (OSC) authorities at 5 U.S.C. 

1212–1216. This part does not create 

new individual rights but instead is 

intended to inform individuals of filing 

options they may be entitled to under 5 

U.S.C. 1212–1216, and 2302. 

Individuals are encouraged to go to 

OSC’s website at https://osc.gov at for 

more information about the OSC 

complaint form that should be used 

when filing with OSC. 

§ 1800.2 Filing complaints of prohibited 

personnel practices or other prohibited 

activities. 

(a) Prohibited personnel practices. 

Pursuant to 5 U.S.C. 1214 and 1215, 

OSC has investigative and prosecutorial 

jurisdiction over allegations that one or 

more of the following prohibited 

personnel practices were committed 

against current or former Federal 

employees and applicants for Federal 

employment: 

(1) Discrimination, including 

discrimination based on marital status 

or political affiliation (see § 1810.1 of 

this chapter for information about OSC’s 

deferral policy for discrimination 

complaints); 

(2) Soliciting or considering improper 

recommendations or statements about 

any individual requesting, or under 

consideration for, a personnel action; 

(3) Coercing political activity, or 

engaging in retaliation for refusal to 

engage in political activity; 

(4) Deceiving or obstructing any 

individual with respect to competition 

for employment; 

(5) Influencing any individual to 

withdraw from competition to improve 

or injure the employment prospects of 

another individual; 

(6) Granting an unauthorized 

preference or advantage to any 

individual to improve or injure the 

employment prospects of another 

individual; 

(7) Nepotism involving a covered 

relative as defined at 5 U.S.C. 

3110(a)(3); 

(8) Retaliation for whistleblowing 

(whistleblowing is generally defined as 

the disclosure of information by an 

individual who reasonably believes that 

the information evidences a violation of 

any law, rule, or regulation; gross 

mismanagement; a gross waste of funds; 

an abuse of authority; a substantial and 

specific danger to public health or 

safety; or censorship related to scientific 

research or the integrity of the scientific 

process if the censorship will cause one 

of the aforementioned categories of 

wrongdoing); 

(9) Retaliation for: 

(i) Exercising certain grievance, 

complaint, or appeal rights; 

(ii) Providing testimony or other 

assistance to any individual exercising 

such grievance, complaint, or appeal 

rights; 

(iii) Cooperating with the Special 

Counsel, an Inspector General, or any 

other agency component responsible for 

internal investigation or review; or 

(iv) Refusing to obey an order that 

would require the violation of law, rule, 

or regulation; 

(10) Discrimination based on conduct 

that would not adversely affect job 

performance; 

(11) Violating a veterans’ preference 

requirement; 

(12) Taking or failing to take a 

personnel action in violation of any law, 

rule, or regulation implementing or 

directly concerning merit system 

principles at 5 U.S.C. 2301(b); 

(13) Implementing or enforcing any 

nondisclosure policy, form, or 

agreement that fails to include the 

statement found at 5 U.S.C. 2302(b)(13) 

or fails to inform any individual that 

they retain their whistleblowing rights; 

and 

(14) Accessing the medical record of 

any individual as part of, or otherwise 

in furtherance of, any other prohibited 

personnel practice. 

(b) Other prohibited activities. 

Pursuant to 5 U.S.C. 1216, OSC also has 

investigative and prosecutorial 

jurisdiction over any allegation 

concerning the following: 

(1) Prohibited political activity by 

Federal employees covered by the Hatch 

Act at title 5 of the U.S. Code, chapter 

73, subchapter III; 

(2) Prohibited political activity by 

State and local officers and employees 


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covered by the Hatch Act at title 5 of the 

U.S. Code, chapter 15; 

(3) Arbitrary and capricious 

withholding of information prohibited 

under the Freedom of Information Act at 

5 U.S.C. 552 (except for certain foreign 

and counterintelligence information); 

(4) Activities prohibited by any civil 

service law, rule, or regulation, 

including any activity relating to 

political intrusion in personnel 

decision-making; 

(5) Involvement by any employee in 

any prohibited discrimination found by 

any court or appropriate administrative 

authority to have occurred in the course 

of any personnel action (unless OSC 

determines that the allegation may be 

resolved more appropriately under an 

administrative appeals procedure); and 

(6) Pursuant to 38 U.S.C. 4324, 

violations of the Uniformed Services 

Employment and Reemployment Rights 

Act, codified at 38 U.S.C. 4301, et seq. 

(c) Procedures for filing complaints 

alleging prohibited personnel practices 

or other prohibited activities (other than 

the Hatch Act). (1) Anyone may file a 

complaint with OSC alleging one or 

more prohibited personnel practices, or 

other prohibited activities within OSC’s 

investigative jurisdiction. The OSC 

complaint form must be used to file all 

such complaints. 

(2) OSC will not process a complaint 

filed in any format other than the 

completed OSC complaint form 

designated in paragraph (c)(1) of this 

section. If a complainant does not use 

this form to submit a complaint, OSC 

will provide the complainant with 

information about the form. The OSC 

complaint form will be considered to be 

filed on the date on which OSC receives 

a completed form. 

(3) The OSC complaint form requests 

that the complainant provide basic 

information about the alleged prohibited 

personnel practices or other prohibited 

activities. A complaint may be amended 

to clarify or include additional 

allegations. A complaint is sufficient for 

investigation when OSC receives 

information identifying the parties, 

identifying any relevant personnel 

action(s), and describing generally the 

practices or activities at issue. 

(4) The OSC complaint form is 

available: 

(i) Online at: https://osc.gov (to print 

out and complete on paper, or to 

complete online); 

(ii) By writing to OSC at: Office of 

Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505; 

or 

(iii) By calling OSC at: (800) 872–9855 

(toll-free), or (202) 804–7000 (in the 

Washington, DC area). 

(5) A complainant can file a 

completed OSC complaint form: 

(i) Electronically at: https://osc.gov; 

(ii) By email to: info@osc.gov; or 

(iii) By mail to: Office of Special 

Counsel, 1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

§ 1800.3 Filing disclosures of information 

evidencing wrongdoing. 

(a) General. Pursuant to 5 U.S.C. 1213, 

OSC is authorized to provide an 

independent and secure channel for use 

by current or former Federal employees 

and applicants for Federal employment 

to disclose information that they 

reasonably believe evidences 

wrongdoing by a Federal agency. OSC 

must determine whether there is a 

substantial likelihood that the 

information discloses a violation of any 

law, rule, or regulation; gross 

mismanagement; a gross waste of funds; 

an abuse of authority; a substantial and 

specific danger to public health or 

safety; or censorship related to scientific 

research or the integrity of the scientific 

process if the censorship will cause one 

of the aforementioned categories of 

wrongdoing. If it does, the law requires 

OSC to refer the information to the 

appropriate agency head for an 

investigation and a written report on the 

findings to the Special Counsel. It is 

OSC’s policy to maintain the anonymity 

of individual filers throughout the 

disclosure process, unless they consent 

to their identity being revealed. The law 

does not authorize OSC to investigate 

any disclosure. 

(b) Procedures for filing disclosures. 

Current or former Federal employees 

and applicants for Federal employment 

may file a disclosure of the type of 

information described in paragraph (a) 

of this section with OSC. Such 

disclosures must be filed in writing. 

(1) Filers are encouraged to use the 

OSC complaint form to file a disclosure 

of the type of information described in 

paragraph (a) of this section with OSC. 

This form provides more information 

about OSC jurisdiction, and procedures 

for processing whistleblower 

disclosures. The OSC complaint form is 

available: 

(i) Online at: https://osc.gov (to print 

out and complete on paper, or to 

complete online); 

(ii) By writing to OSC at: Office of 

Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505; 

or 

(iii) By calling OSC at: (800) 572–2249 

(toll-free), or (202) 804–7004 (in the 

Washington, DC area). 

(2) Filers may use another written 

format to submit a disclosure to OSC, 

but the submission should include: 

(i) The name, mailing address, and 

telephone number(s) of the individual(s) 

making the disclosure(s); 

(ii) The department or agency, 

location, and organizational unit 

complained of; and 

(iii) A statement as to whether the 

filer consents to disclosure of the filer’s 

identity by OSC to the agency involved, 

in connection with any OSC referral to 

that agency. 

(3) An individual can file a disclosure 

with OSC: 

(i) Electronically at: https://osc.gov; 

(ii) By email at info@osc.gov; or 

(iii) By mail to: Office of Special 

Counsel, Disclosure Unit, 1730 M Street 

NW, Suite 218, Washington, DC 20036– 

4505. 

§ 1800.4 Filing complaints of Hatch Act 

violations and requesting advisory 

opinions. 

(a) Procedures for filing complaints 

alleging Hatch Act violations. (1) 

Complainants are encouraged to use the 

OSC complaint form to file Hatch Act 

complaints. The OSC complaint form is 

available: 

(i) Online at: https://osc.gov (to print 

out and complete on paper, or to 

complete online); or 

(ii) By writing to OSC at: Office of 

Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505. 

(2) Complaints alleging a violation of 

the Hatch Act may be submitted in any 

written form, and should include: 

(i) The complainant’s name, mailing 

address, and telephone number (unless 

the matter is submitted anonymously); 

(ii) The department or agency, 

location, and organizational unit 

complained of; and 

(iii) A concise description of the 

actions complained about, names and 

positions of employees who took the 

actions, if known to the complainant, 

and dates of the actions, preferably in 

chronological order, together with any 

documentary evidence that the 

complainant can provide. 

(3) A written Hatch Act complaint can 

also be filed with OSC: 

(i) By email to: hatchact@osc.gov; or 

(ii) By mail to: Office of Special 

Counsel, 1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

(b) Procedures for requesting Hatch 

Act advisory opinions. Pursuant to 5 

U.S.C. 1212(f), OSC is authorized to 

issue advisory opinions only about 

political activity of Federal officers and 

employees, and political activity of 

State or local officers and employees. 

An individual can seek an advisory 

opinion from OSC: 

(1) By email to: hatchact@osc.gov; 

(2) By mail to: Office of Special 

Counsel, Hatch Act Unit, 1730 M Street 


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NW, Suite 218, Washington, DC 20036– 

4505; or 

(3) By phone at: (800) 854–2824 (tollfree), or (202) 804–7002 (in the 

Washington, DC area). 

■ 2. Revise part 1810 to read as follows: 

PART 1810—INVESTIGATIVE 

AUTHORITY OF THE SPECIAL 

COUNSEL 

Sec. 

1810.1 Investigative policy in certain 

discrimination and retaliation 

complaints. 

1810.2 Access to agency information in 

investigations. 

1810.3 Termination of certain OSC 

investigations. 

1810.4 Investigative policy regarding 

agency liaisons. 

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

§ 1810.1 Investigative policy in certain 

discrimination and retaliation complaints. 

OSC is authorized to investigate 

allegations of discrimination and 

retaliation prohibited by law, as defined 

in 5 U.S.C. 2302(b)(1) and (b)(9)(A)(ii). 

Because procedures for investigating 

discrimination and retaliation 

complaints have already been 

established in the agencies and the 

Equal Employment Opportunity 

Commission, OSC will usually avoid 

duplicating those procedures and will 

defer to those procedures rather than 

initiating an independent investigation. 

§ 1810.2 Access to agency information in 

investigations. 

(a) Pursuant to 5 U.S.C. 1212(b)(5), 

OSC is authorized to have timely access 

to all agency records, data, reports, 

audits, reviews, documents, papers, 

recommendations, information, or other 

material that relate to an OSC 

investigation, review, or inquiry. 

(b) A claim of common law privilege, 

such as the attorney-client privilege, 

may not be used by any agency, or 

officer or employee of any agency, to 

withhold information from OSC. By 

providing such information to OSC, an 

agency will not be deemed to have 

waived the common law privilege 

against a non-Federal entity or against 

any individual in any other proceeding. 

(c) In the event of contumacy or 

failure of an agency to comply with any 

request under this section, the Special 

Counsel shall submit a report to the 

committees of Congress with 

jurisdiction over OSC and the 

applicable agency. 

§ 1810.3 Termination of certain OSC 

investigations. 

(a) Pursuant to 5 U.S.C. 1214(a)(6), 

within 30 days of receiving a complaint 

alleging that a prohibited personnel 

practice occurred, OSC may terminate 

an investigation of the allegation 

without further inquiry if: 

(1) The same allegation, based on the 

same set of facts and circumstances, had 

previously been: 

(i) Made by the individual and 

investigated by OSC; or 

(ii) Filed by the individual with the 

Merit Systems Protection Board; 

(2) OSC does not have jurisdiction to 

investigate the allegation; or 

(3) The individual knew or should 

have known of the alleged prohibited 

personnel practice more than 3 years 

before the allegation was received by 

OSC. 

(b) Within 30 days of terminating an 

investigation described in paragraph (a) 

of this section, OSC shall notify the 

individual, in writing, of the basis for 

terminating the investigation. 

§ 1810.4 Investigative policy regarding 

agency liaisons. 

Agency liaisons facilitate their 

agency’s cooperation with OSC’s 

investigations by ensuring that agencies 

timely and accurately respond to OSC’s 

requests for information and witness 

testimony, as well as by assisting with 

the resolution of complaints. To 

maintain the integrity of OSC’s 

investigations and to avoid actual or 

perceived conflicts, agency liaisons 

should not have current or past 

involvement in the personnel actions at 

issue in the assigned case. 

■ 3. Revise part 1820 to read as follows: 

PART 1820—FREEDOM OF 

INFORMATION ACT REQUESTS; 

PRODUCTION OF RECORDS OR 

TESTIMONY 

Sec. 

1820.1 General provisions. 

Subpart A—FOIA Regulations 

1820.2 Requirements for making FOIA 

requests. 

1820.3 Consultations and referrals. 

1820.4 Timing of responses to requests. 

1820.5 Responses to requests. 

1820.6 Appeals. 

1820.7 Fees. 

1820.8 Business information. 

1820.9 Other rights and services. 

Subpart B—Touhy Regulations 

1820.10 Scope and purpose. 

1820.11 Applicability. 

1820.12 Definitions. 

1820.13 General prohibition. 

1820.14 Factors OSC will consider. 

1820.15 Service of requests or demands. 

1820.16 Requirements for litigants seeking 

documents or testimony. 

1820.17 Processing requests or demands. 

1820.18 Restrictions that apply to 

testimony. 

1820.19 Restrictions that apply to released 

records. 

1820.20 Procedure when a decision is not 

made prior to the time a response is 

required. 

1820.21 Fees. 

1820.22 Final determination. 

1820.23 Penalties. 

1820.24 Conformity with other laws. 

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

§ 1820.1 General provisions. 

This part contains rules and 

procedures followed by the U.S. Office 

of Special Counsel (OSC) in processing 

requests for records under the Freedom 

of Information Act (FOIA), codified at 5 

U.S.C. 552. These rules and procedures 

should be read together with the FOIA 

and the FOIA page of OSC’s website 

(https://osc.gov/FOIA), which set forth 

additional information about access to 

agency records and information 

routinely provided to the public as part 

of a regular OSC activity. For example, 

forms, press releases, records published 

on OSC’s website, or public lists 

maintained at OSC headquarter offices 

pursuant to 5 U.S.C. 1219, may be 

requested and provided to the public 

without following this part. This part 

also addresses responses to demands by 

a court or other authority to an OSC 

employee or former employee for 

production of official records or 

testimony in legal proceedings. 

Subpart A—FOIA Regulations 

§ 1820.2 Requirements for making FOIA 

requests. 

(a) Submission of requests. (1) A 

request for OSC records under the FOIA 

must be made in writing. The request 

must be sent: 

(i) By email to: foiarequest@osc.gov or 

other electronic means described on the 

FOIA page of OSC’s website (https://

osc.gov/FOIA); 

(ii) Electronically to: The National 

FOIA Portal for the entire federal 

government at www.foia.gov; or 

(iii) By mail to: U.S. Office of Special 

Counsel, FOIA Officer, 1730 M Street 

NW, Suite 218, Washington, DC 20036– 

4505. 

(2) Both the request letter and 

envelope or email subject line should be 

clearly marked ‘‘FOIA Request.’’ 

(3) A FOIA request will not be 

considered to have been received by 

OSC until it reaches the FOIA Officer. 

(b) Description of records sought. 

Requests must state in the letter, email, 

or other prescribed electronic method 

the words ‘‘FOIA Request’’ or ‘‘FOIA/ 

Privacy Request.’’ The request must also 

describe the records sought in enough 

detail for them to be located with a 

reasonable amount of effort. When 

requesting records about an OSC case 

file, the case file number, name, and 


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type (for example, prohibited personnel 

practice (PPP), Hatch Act, USERRA, 

Hatch Act advisory opinion, or 

whistleblower disclosure) should be 

provided, if known. Whenever possible, 

requests should describe any particular 

record sought, such as the date, title or 

name, author, recipient, and subject 

matter. OSC requires proof of 

identification from requestors seeking 

their own case files. OSC requires a 

signed release of information from 

requestors seeking another individual’s 

case file. 

(c) Agreement to pay fees. By making 

a FOIA request the requestor agrees to 

pay all applicable fees chargeable under 

§ 1820.7 unless the Special Counsel 

waives fees, the requestor is exempt, or 

the requestor otherwise qualifies for a 

waiver of fees. 

§ 1820.3 Consultations and referrals. 

When OSC receives a FOIA request 

for a record in its possession, it may 

determine that another Federal agency 

or entity is better able to decide whether 

the record is exempt from disclosure 

under the FOIA. If so, OSC will either 

respond to the request for the record 

after consulting with the other Federal 

agency or entity or refer the 

responsibility for responding to the 

request to the other Federal agency or 

entity deemed better able to determine 

whether to release it. OSC will 

ordinarily respond promptly to 

consultations and referrals from other 

Federal agencies or entities. 

§ 1820.4 Timing of responses to requests. 

(a) In general. OSC ordinarily will 

respond to FOIA requests in order of 

receipt. In determining which records 

are responsive to a request, OSC 

ordinarily will include only records in 

its possession on the date that it begins 

its search. OSC will inform the 

requestor if it uses any other date. 

(b) Multitrack processing. (1) OSC 

may use two or more processing tracks 

to distinguish between simple and more 

complex requests based on the amount 

of work and/or time estimated to 

process the request. 

(2) When using multitrack processing, 

OSC may provide requestors in its 

slower track(s) with an opportunity to 

limit the scope of their requests in order 

to qualify for faster processing within 

the specified limits of the faster track(s). 

(c) Expedited processing. (1) OSC will 

take requests and appeals out of order 

and provide expedited treatment 

whenever OSC has established to its 

satisfaction that: 

(i) Failure to obtain requested records 

on an expedited basis could reasonably 

be expected to pose an imminent threat 

to the life or physical safety of an 

individual; 

(ii) An urgency exists to inform the 

public about an actual or alleged federal 

government activity and the requestor is 

primarily engaged in disseminating 

information; or 

(iii) The requestor with a personal 

interest in a case for which they face an 

imminent filing deadline with the Merit 

Systems Protection Board or other 

administrative tribunal or court of law 

in an individual right of action, or in a 

USERRA case referred to OSC under 

title 38 of the U.S. Code. Expedited 

status granted under this provision will 

apply only to the following requested 

records: PPP case closure and notice of 

appeal rights letters sent to the 

complainant by OSC, and the official 

complaint form submitted to OSC by a 

USERRA complainant or the original 

referred USERRA complaint if referred 

to OSC under title 38 of the U.S. Code. 

(2) A request for expedited processing 

must be made in writing and sent to 

OSC’s FOIA Officer. The expedited 

request is deemed received when it 

reaches the FOIA Officer. 

(3) A requestor who seeks expedited 

processing must submit a statement, 

certified to be true and correct to the 

best of that individual’s knowledge and 

belief, explaining in detail the basis for 

requesting expedited processing. OSC 

may waive a certification as a matter of 

administrative discretion. 

(4) OSC shall decide whether to grant 

a request for expedited processing and 

notify the requestor of its decision 

within ten (10) calendar days of the 

FOIA Officer’s receipt of the request. If 

OSC grants the request for expedited 

processing, it will process the request as 

soon as practicable. If OSC denies the 

request for expedited processing, OSC 

shall rule expeditiously on any 

administrative appeal of that decision. 

(d) Aggregated requests. OSC may 

aggregate multiple requests by the same 

requestor, or by a group of requestors 

acting in concert, if it reasonably 

believes that such requests actually 

constitute a single request that would 

otherwise create ‘‘unusual 

circumstances’’ as defined in § 1820.5, 

and that the requests involve clearly 

related matters. 

§ 1820.5 Responses to requests. 

(a) General. Ordinarily, OSC has 

twenty (20) business days from receipt 

to determine whether to grant or deny 

a FOIA request. 

(1) In unusual circumstances, OSC 

may extend the twenty (20) businessday deadline by written notice to the 

requestor setting forth the unusual 

circumstances justifying the extension. 

OSC shall notify the requestor if OSC 

cannot process the request in 20 days 

and provide the requestor an 

opportunity to modify the request so 

that OSC can process the request within 

the 20-day time limit. OSC and the 

requestor can also negotiate an 

alternative time frame for processing the 

request or modified request. OSC’s 

FOIA Public Liaison is available to 

assist in the resolution of any disputes 

between the requestor and OSC. OSC 

must also advise the requestor of the 

requestor’s right to seek dispute 

resolution services from the National 

Archives and Records Administration’s 

(NARA) Office of Government 

Information Services (OGIS). OSC may 

consider a requestor’s refusal to 

reasonably modify the request or to 

negotiate an alternative time frame as a 

factor in determining whether unusual 

and/or exceptional circumstances exist. 

(2) Unusual circumstances means— 

(i) The need to search for and collect 

the requested records from OSC field 

offices, NARA storage facilities, or other 

locations away from OSC’s FOIA office; 

(ii) The need to search for, collect, 

and appropriately examine a 

voluminous amount of separate and 

distinct records demanded in a single 

request; or 

(iii) The need for consultation and/or 

referral with another OSC unit where 

the information also concerns two or 

more components of OSC or with a 

Federal entity that has an interest in the 

information requested. 

(3) Exceptional circumstances 

means— 

(i) OSC has a backlog of pending 

requests and is making reasonable 

progress in reducing the backlog; and 

(ii) OSC estimates a search yield of 

more than 5,000 pages. 

(b) Denial of request. OSC will notify 

the requestor in writing of its 

determination to grant or deny in full or 

in part a FOIA request. 

(c) Adverse determinations. Adverse 

determinations, or denials of requests, 

consist of: A determination to withhold 

any requested record in whole or in 

part; that a requested record does not 

exist or cannot be located; that a record 

is not readily reproducible in the form 

or format sought by the requestor; that 

the request does not seek a record 

subject to the FOIA; a determination on 

any disputed fee matter; or a denial of 

a request for expedited treatment. A 

notification to a requestor of an adverse 

determination on a request shall 

include: 

(1) A brief statement of the reason(s) 

for the denial of the request, including 

any FOIA exemption applied by OSC in 

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(2) A statement that the denial may be 

appealed under § 1820.6(a), with a 

description of the requirements of that 

subsection. 

(d) Dispute resolution program. OSC 

shall inform FOIA requestors at all 

stages of the FOIA process of the 

availability of dispute resolution 

services provided by the FOIA Public 

Liaison or by NARA’s OGIS. 

§ 1820.6 Appeals. 

(a) Appeals of adverse 

determinations. A requestor may appeal 

an adverse determination to OSC’s 

Office of General Counsel. The appeal 

must be in writing, and must be 

submitted either: 

(1) By email to: foiaappeal@osc.gov, 

or other electronic means as described 

on the FOIA page of OSC’s website 

(https://osc.gov/FOIA); or 

(2) By mail to: U.S. Office of Special 

Counsel, Office of General Counsel, 

1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

(b) Submission and content. The 

Office of General Counsel must receive 

the appeal within ninety (90) calendar 

days of the date of the adverse 

determination letter. The appeal letter 

and envelope or email subject line 

should be clearly marked ‘‘FOIA 

Appeal.’’ The appeal must clearly 

identify the OSC determination 

(including the assigned FOIA request 

number, if known) being appealed. OSC 

will not ordinarily act on a FOIA appeal 

if the request becomes a matter of FOIA 

litigation. 

(c) Responses to appeals. Ordinarily, 

OSC must issue a written appeal 

decision within twenty (20) business 

days from receipt of the appeal. A 

decision affirming a denial in whole or 

in part shall inform the requestor of the 

provisions for judicial review of that 

decision, and of the availability of 

dispute resolution services. If OSC’s 

appeal decision reverses or modifies its 

denial, OSC’s notice will state that OSC 

will reprocess the request in accordance 

with that appeal decision. 

§ 1820.7 Fees. 

(a) In general. OSC provides the first 

two hours of search time and the first 

100 pages of duplication free of charge 

to all requestors. In exceptional 

circumstances, OSC may charge fees 

after determining that unusual 

circumstances exist. At the discretion of 

the Special Counsel, OSC may exempt 

certain requestors from search and 

duplication fees, including PPP 

complainants and subjects; Hatch Act 

complainants and subjects; Hatch Act 

advisory opinion requestors; 

whistleblowers; and USERRA 

complainants. OSC charges commercial 

users for search, review, and 

duplication fees under the FOIA in 

accordance with paragraph (c) of this 

section, except where a waiver or 

reduction of fees is granted under 

paragraph (h) of this section. OSC 

charges duplication fees, but not search 

fees, to educational or non-commercial 

scientific institutions; and to 

representative of the news media or 

news media requestors. OSC charges 

both search fees and duplication fees to 

all other requestors. If an exempted 

requestor abuses its exempt fee status to 

file numerous, duplicative, and/or 

voluminous FOIA requests, OSC may 

suspend the requestor’s exempt status 

and charge search and duplication fees. 

OSC may require up-front payment of 

fees before sending copies of requested 

records to a requestor. Requestors must 

pay fees by submitting to OSC’s FOIA 

Officer a check or money order made 

payable to the Treasury of the United 

States. See generally Uniform Freedom 

of Information Act Fee Schedule and 

Guidelines (hereinafter OMB Fee 

Guidelines), 52 FR 10012 (Mar. 27, 

1987). 

(b) Definitions. For purposes of this 

section: 

(1) Commercial use request means a 

request from or on behalf of an 

individual who seeks information for a 

use or purpose that furthers commercial, 

trade, or profit interests, which can 

include furthering those interests 

through litigation. If OSC determines 

that the requestor seeks to put the 

records to a commercial use, either 

because of the nature of the request or 

because OSC has reasonable cause to 

doubt a requestor’s stated use, OSC shall 

provide the requestor with a reasonable 

opportunity to clarify. 

(2) Direct costs mean those expenses 

that OSC incurs in searching for and 

duplicating (and, in the case of 

commercial use requests, reviewing) 

records to respond to a FOIA request. 

Direct costs include, for example, the 

salary of the employee performing the 

work (the basic rate of pay for the 

employee plus 16 percent of that rate to 

cover benefits) and the cost of operating 

duplicating equipment. Direct costs do 

not include overhead expenses such as 

rent, heating, or lighting the record 

storage facility. 

(3) Duplication means the reasonable 

direct cost of making copies of 

documents. 

(4) Educational institution means any 

school that operates a program of 

scholarly research. See OMB Fee 

Guidelines, 52 FR 10019. To be in this 

category, a requestor must show that the 

request is authorized by and is made 

under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use but are 

sought to further scholarly research. 

(5) Non-commercial scientific 

institution means an entity that is 

operated solely for the purpose of 

conducting scientific research the 

results of which are not intended to 

promote any particular product or 

industry and are not for commercial use. 

(6) Representative of the news media 

or news media requestor means any 

individual or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. A non-exhaustive list of 

news media entities includes print 

newspapers, electronic outlets for print 

newspapers, broadcast and cable 

television networks and stations, 

broadcast and satellite radio networks 

and stations, internet-only outlets, and 

other alternative media as methods of 

news delivery evolve. For ‘‘freelance’’ 

journalists to be regarded as working for 

a news organization, they must 

demonstrate a solid basis for expecting 

publication through that organization, 

whether print or electronic. A requestor 

seeking to qualify as a news media 

requestor must not be seeking the 

requested records for a commercial use. 

The requestor’s news-dissemination 

function is not considered to be a 

commercial use. 

(7) Review means the process of 

examining a record located in response 

to a request in order to determine 

whether any portion of the record is 

exempt from release. Review includes 

redacting exempt material, and 

otherwise evaluating and preparing the 

records for release. Review includes 

time spent obtaining and considering 

any formal objection to release made by 

a business submitter under § 1820.8(f). 

Review does not include time spent 

resolving general legal or policy issues 

about the application of exemptions. 

OSC may charge for review costs in 

connection with commercial use 

requests even if a record ultimately is 

not released. 

(8) Search means the process of 

looking for and retrieving records or 

information responsive to a FOIA 

request, as well as page-by-page or lineby-line identification of responsive 

information within records. 

(c) Fees. OSC charges the following 

fees for responding to FOIA requests: 

(1) Search. (i) The first two hours of 

search are free. OSC may charge for time 

spent searching even if it fails to locate 

responsive records, or even if OSC 


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determines that located records are 

exempt from release. 

(ii) OSC charges $5.50 per quarter 

hour spent by clerical personnel in 

searching for and retrieving a requested 

record; $9.00 per quarter hour of search 

time spent by professional personnel; 

and $17.50 per quarter hour for search 

assistance from managerial personnel. 

(iii) OSC charges the direct costs of 

conducting electronic searches, 

including the costs of operator or 

programmer staff time apportionable to 

the search. 

(iv) OSC may charge additional costs 

in accordance with the applicable 

billing schedule established by NARA 

for requests requiring the retrieval of 

records from any Federal Records 

Center. 

(2) Duplication. OSC charges all nonexempt requestors duplication fees after 

the first 100 pages. OSC’s duplication 

fee for a standard paper photocopy of a 

record will be 25 cents per page. For 

copies produced by computer, such as 

discs or printouts, OSC will charge the 

direct costs, including staff time, of 

producing the copy. For other forms of 

duplication, OSC will charge the direct 

costs of that duplication. 

(3) Review. OSC charges review fees 

to commercial use requestors. OSC will 

not charge for review at the 

administrative appeal level. 

(d) Notice of anticipated fees in excess 

of $25.00. OSC shall notify the requestor 

of the actual or estimated fees when 

OSC determines or estimates that fees 

charged under this section would 

exceed $25.00, unless the requestor has 

indicated a willingness to pay fees at 

that level. The fee notice will offer the 

requestor an opportunity to work with 

OSC to reformulate or narrow the 

request to try to lower the anticipated 

fees. OSC will not conduct a search or 

process responsive records until the 

requestor agrees to pay the anticipated 

total fee in excess of $25.00. 

(e) Charges for other services. OSC 

will ordinarily charge an additional fee 

when OSC chooses as a matter of 

administrative discretion to provide a 

special service, such as shipping records 

by other than ordinary mail. 

(f) Aggregating separate requests. OSC 

may aggregate requests and charge 

appropriate fees where OSC reasonably 

believes that a requestor or a group of 

requestors seek to avoid fees by dividing 

a request into a series of requests. OSC 

may presume that multiple such 

requests made within a 30-day period 

were divided in order to avoid fees. OSC 

will aggregate requests separated by 

more than 30 days only where a 

reasonable basis exists for determining 

that aggregation is warranted under the 

circumstances involved. 

(g) Advance payments. (1) For 

requests other than those described in 

paragraphs (g)(2) and (3) of this section, 

OSC will not require the requestor to 

make an advance payment before work 

is begun or continued on a request. 

Payment owed for work already 

completed (that is, pre-payment after 

processing a request but before copies 

are sent to the requestor) is not an 

advance payment. 

(2) OSC may require advance payment 

up to the amount of the entire 

anticipated fee before beginning to 

process the request if OSC determines or 

estimates that a total fee to be charged 

under this section will exceed $250.00. 

(3) OSC may require the requestor to 

make an advance payment in full of the 

anticipated fee where a requestor has 

previously failed to pay a properly 

charged FOIA fee within 30 business 

days of the date of billing. 

(h) Requirements for waiver or 

reduction of fees. (1) OSC will furnish 

records responsive to a request without 

charge or at a charge reduced below that 

established under paragraph (c) of this 

section where OSC determines, based 

on all available information, that the 

requestor has demonstrated that: 

(i) Release of the requested records is 

in the public interest because it is likely 

to contribute significantly to public 

understanding of the operations or 

activities of the government; and 

(ii) Release of the records is not 

primarily in the commercial interest of 

the requestor. 

(2) To determine whether the first fee 

waiver requirement is met, OSC will 

consider the following factors: 

(i) Whether the subject of the 

requested records concerns a direct and 

clear connection to ‘‘the operations or 

activities of the government,’’ not 

remote or attenuated. 

(ii) Whether the release is ‘‘likely to 

contribute’’’ to an understanding of 

government operations or activities. The 

releasable portions of the requested 

records must be meaningfully 

informative about government 

operations or activities in order to be 

‘‘likely to contribute’’ to an increased 

public understanding of those 

operations or activities. The release of 

records already in the public domain is 

unlikely to contribute to such 

understanding. 

(iii) Whether release of the requested 

records will contribute to ‘‘public 

understanding.’’ The release must 

contribute to the understanding of a 

reasonably broad audience of 

individuals interested in the subject. 

OSC shall consider a requestor’s 

expertise in the subject area and ability 

and intention to effectively convey 

information to the public. A 

representative of the news media 

presumptively satisfies this 

consideration. 

(iv) Whether the release is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities. The requestor must 

demonstrate that the release would 

significantly enhance the public’s 

understanding of the subject in 

question. 

(3) To determine whether the second 

fee waiver requirement is met, OSC will 

consider the following factors: 

(i) Whether the requestor has a 

commercial interest that would be 

furthered by the requested release. OSC 

shall consider any commercial interest 

of the requestor (with reference to the 

definition of ‘‘commercial use’’ in 

paragraph (b)(1) of this section), or of 

any individual on whose behalf the 

requestor may be acting, that would be 

furthered by the requested release. 

Requestors shall be given an 

opportunity to provide explanatory 

information about this consideration. 

(ii) Whether any identified public 

interest is greater in magnitude than that 

of any identified commercial interest in 

release. OSC ordinarily shall presume 

that a news media requestor has 

satisfied the public interest standard. 

Release to data brokers or others who 

merely compile and market government 

information for direct economic return 

shall be presumed not to primarily serve 

the public interest. 

(4) Where only a portion of the 

records to be released satisfies the 

requirements for a waiver of fees, a 

waiver shall be granted for that portion. 

(5) Requests for the waiver or 

reduction of fees should address the 

factors listed in paragraphs (h)(1), (2), 

and (3) of this section, insofar as they 

apply to each request. OSC fee 

reduction or waiver decisions may 

consider the cost-effectiveness of its 

allocation of administrative resources. 

(i) No assessment of fees. OSC may 

not assess any search fees if it misses 

the statutory 20 business-day deadline 

to respond to the request, except under 

paragraphs (i)(1) and (2) of this section. 

(1) If OSC determined that unusual 

circumstances apply and OSC provided 

a timely written notice to the requestor, 

OSC may extend the 20-day deadline by 

10 business days. OSC may not assess 

any search fees, however, if it misses the 

extended deadline. 

(2) OSC may charge search fees if the 

search yield would exceed 5,000 pages, 

and if OSC provides a timely written 

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§ 1820.8 Business information. 

(a) In general. Business information 

obtained by OSC from a submitter may 

be released only pursuant to this 

section. 

(b) Definitions. For purposes of this 

section: 

(1) Business information means trade 

secrets and commercial or financial 

information obtained by OSC from a 

submitter that may be protected from 

release under FOIA Exemption 4. 5 

U.S.C. 552(b)(4). 

(2) Submitter means any individual or 

entity from whom OSC obtains business 

information, directly or indirectly. 

(c) Designation of business 

information. A submitter of business 

information must use good-faith efforts 

to designate, by appropriate markings, 

any portion of its submission that it 

considers to be protected from release 

under exemption 4. 

(d) Notice to submitters. OSC shall 

provide a submitter with prompt written 

notice of a FOIA request or 

administrative appeal that appears to 

seek confidential business information 

wherever required under paragraph (e) 

of this section, except as provided in 

paragraph (h) of this section, in order to 

give the submitter an opportunity to 

object to release of any specified portion 

of those records under paragraph (f) of 

this section. The notice shall either 

describe the confidential business 

information requested or include copies 

of the requested records or record 

portions containing the information. 

(e) When notice is required. Notice 

shall be given to a submitter whenever: 

(1) The submitter designated the 

records in good faith as considered 

protected from release under exemption 

4; or 

(2) OSC has reason to believe that the 

records or portions of records may be 

protected from release under exemption 

4. 

(f) Opportunity to object to release. 

OSC will allow a submitter a reasonable 

time to respond to the notice described 

in paragraph (d) of this section and will 

specify that time period within the 

notice. The submitter must submit any 

objections to release in a detailed 

written statement. The statement must 

specify all grounds for withholding any 

portion of the records under any 

exemption of the FOIA and, in the case 

of exemption 4, it must show why the 

information contained in the record is 

privileged or confidential. Submitters 

who fail to respond timely to the notice 

are deemed to have consented to release 

of the records. Information provided by 

a submitter under this paragraph may 

itself be subject to release under FOIA. 

(1) Notice of intent to release. OSC 

shall consider a submitter’s objections 

and specific grounds for non-release in 

deciding whether to release business 

information. If OSC decides to release 

business information over the objection 

of a submitter, OSC shall provide 

written notice including the reason(s) 

why OSC overruled the submitter’s 

objections; a description of the business 

information to be released; and a 

reasonable specified release date. 

(2) [Reserved] 

(g) Exceptions to notice requirements. 

The notice requirements of paragraphs 

(d) and (e) of this section shall not apply 

if: 

(1) OSC determines that the 

information should not be released; 

(2) The information has been lawfully 

published or has been officially made 

available to the public; 

(3) Release of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous— 

except that, in such a case, OSC shall, 

within a reasonable time prior to a 

specified release date, give the submitter 

written notice of any final decision to 

release the information. 

(h) Notice of FOIA lawsuit. OSC shall 

promptly notify a submitter if a 

requestor files a lawsuit seeking to 

compel the release of the submitter’s 

business information. 

(i) Corresponding notice to requestors. 

OSC shall notify requestor(s): That it 

provided business submitters the 

opportunity to object to release under 

paragraph (d) of this section; if OSC 

subsequently releases the requested 

records under paragraph (g) of this 

section; and whenever a submitter files 

a lawsuit seeking to prevent OSC’s 

release of business information. 

§ 1820.9 Other rights and services. 

This subpart does not create a right or 

entitlement for any individual to any 

service or to the release of any record 

other than those available under FOIA. 

Subpart B—Touhy Regulations 

§ 1820.10 Scope and purpose. 

(a) This subpart establishes policy, 

assigns responsibilities, and prescribes 

procedures with respect to the 

production of official information, 

records, or testimony by current and 

former OSC employees, contractors, 

advisors, and consultants in connection 

with Federal or State litigation or 

administrative proceedings in which 

OSC is not a party. 

(b) OSC intends this part to: 

(1) Conserve OSC employee time for 

conducting official business; 

(2) Minimize OSC employee 

involvement in issues unrelated to 

OSC’s mission; 

(3) Maintain OSC employee 

impartiality in disputes between nonOSC litigants; and 

(4) Protect OSC’s sensitive, 

confidential information and 

deliberative processes. 

(c) OSC does not waive the sovereign 

immunity of the United States when 

allowing OSC employees to provide 

testimony or records under this part. 

§ 1820.11 Applicability. 

This subpart applies to demands and 

requests from non-OSC litigants for 

testimony from current and former OSC 

employees, contractors, advisors, and 

consultants relating to official OSC 

information and/or for production of 

official OSC records or information in 

legal proceedings in which OSC is not 

a party. 

§ 1820.12 Definitions. 

The following definitions apply to 

this part. 

(a) Demand means an order, 

subpoena, or other command of a court 

or other competent authority for OSC’s 

production or release of records or for 

an OSC employee’s appearance and 

testimony in a legal proceeding. 

(b) Request means any request, by 

whatever method, for the production of 

records and information or for 

testimony which has not been ordered 

by a court or other competent authority. 

(c) Testimony means any written or 

oral statements, including depositions, 

answers to interrogatories, affidavits, 

declarations, and interviews made by an 

individual in connection with a legal 

proceeding. 

(d) Records or official records and 

information means all information in 

OSC’s custody and control, relating to 

information in OSC’s custody and 

control, or acquired by an OSC 

employee in the performance of official 

duties. 

(e) Legal proceeding means any matter 

before a court of law, administrative 

board or tribunal, commission, 

administrative law judge, hearing 

officer, or other body that conducts a 

legal or administrative proceeding. 

(f) General Counsel means OSC’s 

General Counsel or an individual to 

whom the General Counsel has 

delegated authority under this part. 

(g) OSC employee or employee means 

any current or former OSC employee or 

contractor, including but not limited to 

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volunteers, consultants, and/or other 

advisors. 

§ 1820.13 General prohibition. 

No OSC employee may testify or 

produce official records or information 

in response to a demand or request 

without the General Counsel’s prior 

written approval. 

§ 1820.14 Factors OSC will consider. 

The General Counsel has discretion to 

grant an employee permission to testify 

on matters relating to official 

information or produce official records 

and information, in response to a 

demand or request. The General 

Counsel may consider whether: 

(a) The purposes of this subpart are 

met; 

(b) Allowing such testimony or 

production of records would be 

necessary to prevent a miscarriage of 

justice; would assist or hinder OSC in 

performing its statutory duties; or would 

be in the best interest of OSC or the 

United States; 

(c) The records or testimony can be 

obtained from other sources; 

(d) The demand or request is unduly 

burdensome or otherwise inappropriate 

under the applicable rules of discovery 

or the rules of procedure governing the 

case or matter in which the demand or 

request arose; 

(e) Release would violate a statute, 

Executive Order, or regulation; would 

reveal trade secrets, confidential, 

sensitive, or privileged information, or 

information that would otherwise be 

inappropriate for release; or would 

impede or interfere with an ongoing law 

enforcement investigation or 

proceeding, or compromise 

constitutional rights or national security 

interests; 

(f) Allowing such testimony or 

production of records would result in 

OSC appearing to favor one litigant over 

another; 

(g) A substantial government interest 

is implicated; 

(h) The demand or request is within 

the authority of the party making it; 

and/or 

(i) The demand or request is 

sufficiently specific to be answered. 

§ 1820.15 Service of requests or demands. 

Requests or demands for official 

records or information or testimony 

under this subpart must be served by 

mail to the U.S. Office of Special 

Counsel, Office of General Counsel, 

1730 M Street NW, Suite 218, 

Washington, DC 20036–4505; or by 

email to ogc@osc.gov. The subject line 

should read ‘‘Touhy Request.’’ 

§ 1820.16 Requirements for litigants 

seeking documents or testimony. 

A litigant must comply with the 

following requirements when 

submitting a request for testimony or 

official records and information under 

this subpart. A request should be 

submitted before a demand is issued. 

(a) The request must be in writing 

(email suffices) and must be submitted 

to the General Counsel. 

(b) The written request must contain 

the following information: 

(1) The caption of the legal or 

administrative proceeding, docket 

number, and name and address of the 

court or other administrative or 

regulatory authority involved; 

(2) A copy of the complaint or 

equivalent document setting forth the 

assertions in the case and any other 

pleading or document necessary to 

show relevance; 

(3) A list of categories of records 

sought, a detailed description of how 

the information sought is relevant to the 

issues in the legal or administrative 

proceeding, and a specific description of 

the substance of the testimony or 

records sought; 

(4) A statement addressing the factors 

set out in § 1820.14; 

(5) A statement indicating that the 

information sought is not available from 

another source; 

(6) If testimony is requested, the 

intended use of the testimony, and a 

showing that no document could be 

provided and used in lieu of testimony; 

(7) A description of all prior 

decisions, orders, or pending motions in 

the case that bear upon the relevance of 

the requested records or testimony; 

(8) The name, address, and telephone 

number of counsel to each party in the 

case; and 

(9) An estimate of the amount of time 

that the requestor and other parties will 

require of each OSC employee for time 

spent by the employee to prepare for 

testimony, in travel, and for attendance 

in the legal proceeding. 

(c) OSC reserves the right to require 

additional information to complete the 

request where appropriate. 

(d) The request should be submitted 

at least 14 days before the date that 

records or testimony is required. 

(e) The General Counsel may deny a 

request for records or testimony based 

on a requestor’s failure to cooperate in 

good faith to enable the General Counsel 

to make an informed decision. 

(f) The request should state that the 

requestor will provide a copy of the 

OSC employee’s testimony free of 

charge and that the requestor will 

permit OSC to have a representative 

present during the employee’s 

testimony. 

§ 1820.17 Processing requests or 

demands. 

(a) Absent exigent circumstances, 

OSC will issue a determination within 

10 business days after the General 

Counsel received the request or 

demand. 

(b) The General Counsel may grant a 

waiver of any procedure described by 

this subpart where a waiver is 

considered necessary to promote a 

significant interest of OSC or the United 

States, or for other good cause. 

(c) On request, OSC may certify that 

records are true copies in order to 

facilitate their use as evidence. 

§ 1820.18 Restrictions that apply to 

testimony. 

(a) The General Counsel may impose 

conditions or restrictions on OSC 

employee testimony including, for 

example: 

(1) Limiting the areas of testimony; 

(2) Requiring the requestor and other 

parties to the legal proceeding to agree 

that the transcript of the testimony will 

be kept under seal; 

(3) Requiring that the transcript will 

be used or made available only in the 

particular legal proceeding for which 

testimony was requested. 

(b) OSC may offer the employee’s 

written declaration in lieu of testimony. 

(c) If authorized to testify under this 

part, employees may testify as to facts 

within their personal knowledge, but, 

unless specifically authorized to do so 

by the General Counsel, the employee 

shall not; 

(1) Reveal confidential or privileged 

information; or 

(2) For a current OSC employee, 

testify as an expert or opinion witness 

with regard to any matter arising out of 

the employee’s official duties or the 

functions of OSC unless testimony is 

being given on behalf of the United 

States (see also 5 CFR 2635.805). 

(d) The scheduling of an employee’s 

testimony, including the amount of time 

that the employee will be made 

available for testimony, will be subject 

to OSC’s approval. 

§ 1820.19 Restrictions that apply to 

released records. 

(a) The General Counsel may impose 

conditions or restrictions on the release 

of official OSC records and information, 

including the requirement that parties to 

the proceeding obtain a protective order 

or execute a confidentiality agreement 

to limit access and any further 

disclosure. 

(b) If the General Counsel so 

determines, original OSC records may 

be presented for examination in 

response to a request, but they may not 


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be presented as evidence or otherwise 

used in a manner by which they could 

lose their identity as official OSC 

records, nor may they be marked or 

altered. 

§ 1820.20 Procedure in the event a 

decision is not made prior to the time a 

response is required. 

If a requestor needs a response to a 

demand or request before the General 

Counsel makes a determination whether 

to grant the demand or request, the 

employee upon whom the demand or 

request is made, unless otherwise 

advised by the General Counsel, will 

appear, if necessary, at the stated time 

and place, produce a copy of this part, 

state that the employee has been 

advised by counsel not to provide the 

requested testimony or produce 

documents at this time, and respectfully 

decline to comply with the demand or 

request, citing United States ex rel. 

Touhy v. Ragen, 340 U.S. 462 (1951). 

§ 1820.21 Fees. 

(a) Witness fees. OSC may assess fees 

for attendance by a witness. Such fees 

will include fees, expenses, and 

allowances prescribed by the court’s 

rules. If no such fees are prescribed, 

witness fees will be determined based 

on 28 U.S.C. 1821, and upon the rule of 

the federal district closest to the 

location where the witness will appear. 

Such fees will include the costs of time 

spent by the witness to prepare for 

testimony, in travel, and for attendance 

in the legal proceeding, plus travel 

costs. 

(b) Payment of fees. A requestor must 

pay witness fees for current OSC 

employees and any record certification 

fees by submitting to the General 

Counsel a check or money order for the 

appropriate amount made payable to the 

United States Department of Treasury. 

§ 1820.22 Final determination. 

The General Counsel will notify the 

requestor and, when appropriate, the 

court or other body of the final 

determination, the reasons for the 

response to the request or demand, and 

any conditions that the General Counsel 

may impose on the testimony of an OSC 

employee or the release of OSC records 

or information. The General Counsel has 

the sole discretion to make the final 

determination regarding requests to 

employees for testimony or production 

of official records and information in 

litigation in which OSC is not a party. 

The General Counsel’s decision 

exhausts administrative remedies for 

purposes of release of the information. 

§ 1820.23 Penalties. 

(a) An employee who releases official 

records or information or gives 

testimony relating to official 

information, except as expressly 

authorized by OSC, or as ordered by a 

court after OSC has had the opportunity 

to be heard, may face the penalties 

provided in 18 U.S.C. 641 and other 

applicable laws. Additionally, former 

OSC employees are subject to the 

restrictions and penalties of 18 U.S.C. 

207 and 216. 

(b) A current OSC employee who 

testifies or produces official records and 

information in violation of this subpart 

may be subject to disciplinary action. 

§ 1820.24 Conformity with other laws; 

other rights. 

This regulation is not intended to 

conflict with 5 U.S.C. 2302(b)(13). This 

subpart does not create any right, 

entitlement, or benefit, substantive or 

procedural, that a party may rely upon 

in any legal proceeding against the 

United States. 

■ 4. Revise part 1830 to read as follows: 

PART 1830—PRIVACY ACT 

REGULATIONS 

Sec. 

1830.1 Scope and purpose. 

1830.2 Definitions. 

1830.3 Requirements for making Privacy 

Act requests. 

1830.4 Medical records. 

1830.5 Requirements for requesting 

amendment of records. 

1830.6 Appeals. 

1830.7 Exemptions. 

1830.8 Fees. 

1830.9 Accounting for disclosures. 

1830.10 Conditions of disclosure. 

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

§ 1830.1 Scope and purpose. 

(a) This part contains rules and 

procedures followed by OSC in 

processing requests for records under 

the Privacy Act. Further information 

about access to OSC records generally is 

available on OSC’s website at https://

osc.gov/Privacy. 

(b) This part implements the Privacy 

Act of 1974, codified at 5 U.S.C. 552a, 

by establishing OSC policies and 

procedures for the release and 

maintenance of certain systems of 

records. See 5 U.S.C. 552a(f). This part 

also establishes policies and procedures 

for an individual to correct or amend 

their record if they believe it is not 

accurate, timely, complete, or relevant 

or necessary to accomplish an OSC 

function. 

(c) OSC personnel protected by the 

Privacy Act include all staff, experts, 

contractors, consultants, volunteers, 

interns, and temporary employees. 

(d) Other individuals engaging with 

OSC protected by the Privacy Act 

include, but are not limited to, PPP 

complainants, Hatch Act complainants, 

subjects of Hatch Act complaints, Hatch 

Act advisory opinion requesters, 

whistleblowers filing disclosures under 

5 U.S.C. 1213, and USERRA 

complainants 

(e) This part does not: 

(1) Apply to OSC record systems that 

are not Privacy Act Record Systems. 

(2) Make any records available to 

individuals other than: 

(i) Individuals who are the subjects of 

the records; 

(ii) individuals who can prove they 

have consent of subject individual; or 

(iii) individuals acting as legal 

representatives on behalf of such subject 

individuals. 

(3) Make available information 

compiled by OSC in reasonable 

anticipation of court litigation or formal 

administrative proceedings. The 

availability of such information, 

including to any subject individual or 

party to such litigation or proceeding, 

shall be governed by applicable 

constitutional principles, rules of 

discovery, privileges, and part 1820 of 

this chapter; or 

(4) Apply to personnel records 

maintained by the Human Capital Office 

of OSC. Those records are subject to 

regulations of the Office of Personnel 

Management in 5 CFR parts 293, 294, 

and 297. 

§ 1830.2 Definitions. 

As used in this part: 

(a) Access means availability of a 

record to a subject individual. 

(b) Disclosure means the availability 

or release of a record. 

(c) Maintain means to maintain, 

collect, use, or disseminate when used 

in connection with the term ‘‘record;’’ 

and to have control over or 

responsibility for a system of records 

when used in connection with the term 

‘‘system of records.’’ 

(d) Notification means 

communication to an individual 

whether or not they are a subject 

individual. 

(e) Record means any item, collection, 

or grouping of information about an 

individual that is maintained by OSC, 

including but not limited to the 

individual’s education, financial 

transactions, medical history, criminal, 

or employment history, that contains a 

name or an identifying number, symbol, 

or other identifying particular assigned 

to the individual. When used in this 

part, record means only a record that is 

in a system of records. 


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(f) Release means making available all 

or part of the information or records 

contained in an OSC system of records. 

(g) Responsible OSC official means 

the officer listed in a notice of a system 

of records as the system manager or 

another individual listed in the notice of 

a system of records to whom requests 

may be made, or the designee of either 

such officer or individual. 

(h) Subject individual means that 

individual to whom a record pertains. 

(i) System of records means any group 

of records under the control of OSC 

from which a record is retrieved by 

personal identifier such as the name of 

the individual, number, symbol or other 

unique retriever assigned to the 

individual. Single records or groups of 

records which are not retrieved by a 

personal identifier are not part of a 

system of records. See 5 U.S.C. 

552a(a)(5). 

§ 1830.3 Requirements for making Privacy 

Act requests. 

(a) Submission of requests. A request 

for OSC records under the Privacy Act 

must be made in writing. The request 

must be sent: 

(1) By email to: foiarequest@osc.gov; 

or 

(2) By mail to: U.S. Office of Special 

Counsel, Chief Privacy Officer, 1730 M 

Street NW, Suite 218, Washington, DC 

20036–4505. 

(3) Both the request letter and 

envelope or email should clearly be 

marked ‘‘Privacy Act Request.’’ A 

Privacy Act request is deemed received 

by OSC when it reaches the Chief 

Privacy Officer. 

(b) Description of records sought. 

Requestors must describe the records 

sought in enough detail for OSC to 

locate them with a reasonable amount of 

effort, including, where known, data 

such as the date, title or name, author, 

recipient, and subject matter of the 

requested record. 

(c) Proof of identity. OSC requires 

proof of identity from requestors seeking 

their own files, preferably a 

government-issued document bearing 

the subject individual’s photograph. 

OSC requires a signed consent from the 

subject individual to release records to 

an individual’s representative. 

(d) Freedom of Information Act 

processing. OSC also processes all 

Privacy Act requests for access to 

records under the Freedom of 

Information Act, 5 U.S.C. 552, by 

following the rules contained in part 

1820 of this chapter. 

§ 1830.4 Medical records. 

When a request for access involves 

medical records that are not otherwise 

exempt from disclosure, OSC may 

advise the requesting individual that 

OSC will only provide the records to a 

physician the individual designates in 

writing. Upon receipt of the designation, 

the physician will be permitted to 

review the records or to receive copies 

by mail upon proper verification of 

identity. 

§ 1830.5 Requirements for requesting 

amendment of records. 

(a) Submission of requests. 

Individuals may request amendment of 

records pertaining to them that are 

subject to amendment under the Privacy 

Act and this part. The request must be 

sent: 

(1) By email to: info@osc.gov; or 

(2) By mail to: Chief Privacy Officer, 

U.S. Office of Special Counsel, 1730 M 

Street NW, Suite 218, Washington, DC 

20036–4505. 

(3) Both the request letter and 

envelope or email should be clearly 

marked ‘‘Privacy Act Amendment 

Request.’’ Whether sent by mail or 

email, a Privacy Act amendment request 

is considered received by OSC when it 

reaches the Chief Privacy Officer. 

(b) Description of amendment sought. 

Requests for amendment should include 

the identification of the records together 

with a statement of the basis for the 

requested amendment and all available 

supporting documents and materials. 

The request needs to articulate whether 

information should be added, deleted, 

or substituted with another record and 

clearly articulate the reason for 

believing that the record should be 

corrected or amended. 

(c) Proof of identity. Rules and 

procedures set forth in § 1830.3 apply to 

requests made under this section. 

(d) Acknowledgement and response. 

Requests for amendment shall be 

acknowledged by OSC no later than ten 

(10) business days after receipt by the 

Chief Privacy Officer and a 

determination on the request shall be 

made promptly. 

(e) What will not change. The Privacy 

Act amendment or correction process 

will not be used to alter, delete, or 

amend information which is part of a 

determination of fact or which is 

evidence received in the record of a 

claim in any form of an administrative 

appeal process. Disagreements with 

these determinations are to be resolved 

through the assigned OSC Program 

Office. 

(f) Notice of error. If the record is 

wrong, OSC will correct it promptly. If 

wrong information was disclosed from 

the record, we will tell those of whom 

we are aware received that information 

that it was wrong and will give them the 

correct information. This will not be 

necessary if the change is not due to an 

error—e.g., a change of name or address. 

(g) Record found to be correct. If the 

record is correct, OSC will inform you 

in writing of the reason why we refuse 

to amend your record and we will also 

inform you of your right to appeal the 

refusal and the name and address of the 

official to whom you should send your 

appeal. 

(h) Record of another government 

agency. If you request OSC to correct or 

amend a record governed by the 

regulation of another government 

agency, we will forward your request to 

such government agency for processing 

and we will inform you in writing of the 

referral. 

§ 1830.6 Appeals. 

(a) Appeals of adverse 

determinations. A requestor may appeal 

a denial of a Privacy Act request for 

access to or amendment of records to 

OSC’s Office of General Counsel. The 

appeal must be in writing, and be sent: 

(1) By email to: info@osc.gov; or 

(2) By mail to: U.S. Office of Special 

Counsel, Office of General Counsel, 

1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

(3) The appeal must be received by 

the Office of General Counsel within 45 

calendar days of the date of the letter 

denying the request. Both the appeal 

letter and envelope or email should be 

clearly marked ‘‘Privacy Act Appeal.’’ 

An appeal is considered received by 

OSC when it reaches the Office of 

General Counsel. The appeal letter may 

include as much or as little related 

information as the requestor wishes, as 

long as it clearly identifies OSC’s 

determination (including the assigned 

request number, if known) being 

appealed. An appeal ordinarily will not 

be acted on if the request becomes a 

matter of litigation. 

(b) Responses to appeals. OSC’s 

decision on an appeal will be made in 

writing. A final determination will be 

issued within 20 business days—unless 

OSC shows good cause to extend the 20- 

day period. 

§ 1830.7 Exemptions. 

OSC exempts investigatory material 

from records subject to Privacy Act 

record requests or amendment of 

records requests. This exemption aims 

to prevent interference with OSC’s 

inquiries into matters under its 

jurisdiction, and to protect identities of 

confidential sources of information. 

OSC also reserves the right to assert 

exemptions for records received from 

another agency that could be properly 

claimed by that agency. OSC may 


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exempt any information compiled in 

reasonable anticipation of a legal action 

or proceeding. 

§ 1830.8 Fees. 

Requests for records under this 

section shall be subject to the fees set 

forth in part 1820 of this chapter. 

§ 1830.9 Accounting for disclosures. 

OSC will maintain an accounting of 

all releases of a record for six (6) years 

or for the life of the record in 

accordance with the General Records 

Schedule, whichever is longer—except 

that, we will not make accounting for: 

(a) Releases of your record made with 

your consent; 

(b) To those officers and employees of 

the Office of Special Counsel who have 

a need for the record to perform their 

duties; and 

(c) To those required to be released 

under the Freedom of Information Act, 

5 U.S.C. 552, and part 1820 of this 

chapter. 

§ 1830.10 Conditions of disclosure. 

OSC shall not release any record that 

is contained in a system of records to 

any individual or to another agency, 

except as follows: 

(a) Consent to release by the subject 

individual. Except as provided in 

paragraphs (b) and (c) of this section 

authorizing releases of records without 

consent, no release of a record will be 

made without the consent of the subject 

individual. The consent shall be in 

writing and signed by the subject 

individual. The consent shall specify 

the individual, agency, or other entity to 

whom the record may be released, 

which record may be released and, 

where applicable, during which time 

frame the record may be released. The 

subject individual’s identity and, where 

applicable, the identity of the individual 

to whom the record is to be released 

shall be verified as set forth in 

§ 1830.3(c). 

(b) Releases without the consent of the 

subject individual. The releases listed in 

this paragraph may be made without the 

consent of the subject individual, 

including: 

(1) To those officers and employees of 

the Office of Special Counsel who have 

a need for the record to perform their 

duties. 

(2) To those required to be released 

under the Freedom of Information Act, 

5 U.S.C. 552, and part 1820 of this title. 

(3) To the entities listed in in the 

Privacy Act at 5 U.S.C. 552a(b)(1) 

through (12). 

■ 5. Revise part 1850 to read as follows: 

PART 1850—ENFORCEMENT OF 

NONDISCRIMINATION ON THE BASIS 

OF DISABILITY IN PROGRAMS OR 

ACTIVITIES CONDUCTED BY THE 

OFFICE OF SPECIAL COUNSEL 

Sec. 

1850.101 Purpose. 

1850.102 Application. 

1850.103 Definitions. 

1850.104–1850.109 [Reserved] 

1850.110 Notice. 

1850.111–1850.119 [Reserved] 

1850.120 General prohibitions against 

discrimination against individuals with 

disabilities. 

1850.121–1850.129 [Reserved] 

1850.130 Employment of qualified 

individuals with disabilities. 

1850.131–1850.139 [Reserved] 

1850.140 Program accessibility: 

Discrimination against qualified 

individuals with disabilities prohibited. 

1850.141–1850.149 [Reserved] 

1850.150 Program accessibility: Existing 

facilities. 

1850.151 Program accessibility: New 

construction and alterations. 

1850.152–1850.159 [Reserved] 

1850.160 Communications. 

1850.161–1850.169 [Reserved] 

1850.170 Compliance procedures. 

1850.171–1850.999 [Reserved] 

Authority: 29 U.S.C. 794. 

§ 1850.101 Purpose. 

The purpose of this part is to 

implement section 119 of the 

Rehabilitation, Comprehensive Services, 

and Developmental Disabilities 

Amendments of 1978, which amended 

section 504 of the Rehabilitation Act of 

1973 to prohibit discrimination on the 

basis of disability in programs or 

activities conducted by Executive 

agencies or the United States Postal 

Service. 

§ 1850.102 Application. 

This part applies to all programs or 

activities conducted by the agency, 

except for programs or activities 

conducted outside the United States 

that do not involve individuals with 

disabilities in the United States. 

§ 1850.103 Definitions. 

(a) Auxiliary aids means services or 

devices that enable individuals with 

impaired sensory, manual, or speaking 

skills to have an equal opportunity to 

participate in, and enjoy the benefits of, 

programs or activities conducted by the 

agency. For example, auxiliary aids 

useful for individuals with impaired 

vision include readers, Braille materials, 

audio recordings, and other similar 

services and devices. Auxiliary aids 

useful for individuals with impaired 

hearing include telephone handset 

amplifiers, telephones compatible with 

hearing aids, telecommunication 

devices for deaf individuals (TDDs), 

interpreters, notetakers, written 

materials, and other similar services and 

devices. 

(b) Complete complaint means a 

written statement that contains the 

complainant’s name and address and 

describes the agency’s alleged 

discriminatory action in sufficient detail 

to inform the agency of the nature and 

date of the alleged violation of section 

504. It shall be signed by the 

complainant or by someone authorized 

to do so on the complainant’s behalf. 

Complaints filed on behalf of classes or 

third parties shall describe or identify 

(by name, if possible) the alleged 

victims of discrimination. 

(c) Days means calendar days, unless 

otherwise stated. 

(d) Facility means all or any portion 

of buildings, structures, equipment, 

roads, walks, parking lots, rolling stock 

or other conveyances, or other real or 

personal property. 

(e) Historic properties means those 

properties that are listed or eligible for 

listing in the National Register of 

Historic Places or properties designated 

as historic under a statute of the 

appropriate State or local government 

body. 

(f) Individual with a disability means 

any individual who has a physical or 

mental impairment that substantially 

limits one or more major life activities, 

has a record of such an impairment, or 

is regarded as having such an 

impairment. The following phrases used 

in this definition are further defined as 

follows: 

(1) Physical or mental impairment 

includes— 

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

Neurological; musculoskeletal; special 

sense organs; respiratory, including 

speech organs; cardiovascular; 

reproductive; digestive; genitourinary; 

hemic and lymphatic; skin; and 

endocrine; or 

(ii) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities. 

(iii) Also, physical and mental 

impairment includes, but is not limited 

to, such diseases and conditions as 

orthopedic, visual, speech, and hearing 

impairments, cerebral palsy, epilepsy, 

muscular dystrophy, multiple sclerosis, 

cancer, heart disease, diabetes, mental 

retardation, emotional illness, and drug 

addiction and alcoholism. 

(2) Major life activities include 

functions such as— 


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(i) Caring for oneself, performing 

manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, 

reaching, lifting, bending, speaking, 

breathing, learning, reading, 

concentrating, thinking, writing, 

communicating, interacting with others, 

and working; and 

(ii) The operation of a major bodily 

function, such as the functions of the 

immune system, special sense organs 

and skin, normal cell growth, and 

digestive, genitourinary, bowel, bladder, 

neurological, brain, respiratory, 

circulatory, cardiovascular, endocrine, 

hemic, lymphatic, musculoskeletal, and 

reproductive systems. The operation of 

a major bodily function includes the 

operation of an individual organ within 

a body system. 

(3) Has a record of such an 

impairment means has a history of, or 

has been misclassified as having, a 

mental or physical impairment that 

substantially limits one or more major 

life activities. 

(4) Is regarded as having an 

impairment means— 

(i) Has a physical or mental 

impairment that does not substantially 

limit major life activities but is treated 

by the agency as constituting such a 

limitation; 

(ii) Has a physical or mental 

impairment that substantially limits 

major life activities only as a result of 

the attitudes of others toward such 

impairment; or 

(iii) Has none of the impairments 

defined in paragraph (i) of this 

definition but is treated by the agency 

as having such an impairment. 

(g) Qualified individual with a 

disability means— 

(1) With respect to any agency 

program or activity under which an 

individual is required to perform 

services or to achieve a level of 

accomplishment, an individual with a 

disability who meets the essential 

eligibility requirements and who can 

achieve the purpose of the program or 

activity without modifications in the 

program or activity that the agency can 

demonstrate would result in a 

fundamental alteration in its nature; 

(2) With respect to any other program 

or activity, an individual with a 

disability who meets the essential 

eligibility requirements for participation 

in, or receipt of benefits from, that 

program or activity; and 

(3) Qualified individuals with 

disabilities as that term is defined for 

purposes of employment in 29 CFR 

1614.203, which is made applicable to 

this part by § 1850.130. 

(h) Section 504 means section 504 of 

the Rehabilitation Act of 1973 (Pub. L. 

93–112, 87 Stat. 394 (29 U.S.C. 794)), as 

amended by the Rehabilitation Act 

Amendments of 1974 (Pub. L. 93–516, 

88 Stat. 1617); the Rehabilitation, 

Comprehensive Services, and 

Developmental Disabilities 

Amendments of 1978 (Pub. L. 95–602, 

92 Stat. 2955); and the Rehabilitation 

Act Amendments of 1986 (Pub. L. 99– 

506, 100 Stat. 1810). As used in this 

part, Section 504 applies only to 

programs or activities conducted by 

Executive agencies and not to federally 

assisted programs. 

§§ 1850.104–1850.109 [Reserved] 

§ 1850.110 Notice. 

The agency shall make available to all 

interested individuals information 

regarding the provisions of this part and 

its applicability to the programs or 

activities conducted by the agency as 

necessary to apprise such individuals of 

the protections assured them by Section 

504 and this part. 

§§ 1850.111–1850.119 [Reserved] 

§ 1850.120 General prohibitions against 

discrimination against individuals with 

disabilities. 

(a) No qualified individual with a 

disability shall, on the basis of such 

disability, be excluded from 

participation in, be denied the benefits 

of, or otherwise be subjected to 

discrimination under any program or 

activity conducted by the agency. 

(b)(1) The agency, in providing any 

aid, benefit, or service, may not, directly 

or through contractual, licensing, or 

other arrangements, on the basis of 

disability— 

(i) Deny a qualified individual with a 

disability the opportunity to participate 

in or benefit from the aid, benefit, or 

service; 

(ii) Afford a qualified individual with 

a disability an opportunity to participate 

in or benefit from the aid, benefit, or 

service that is not equal to that afforded 

others; 

(iii) Provide a qualified individual 

with a disability with an aid, benefit, or 

service that is not as effective in 

affording equal opportunity to obtain 

the same result, to gain the same benefit, 

or to reach the same level of 

achievement as that provided to others; 

(iv) Provide different or separate aid, 

benefits, or services to individuals with 

disabilities or to any class of individuals 

with disabilities than is provided to 

others unless such action is necessary to 

provide qualified individuals with 

disabilities with aid, benefits, or 

services that are as effective as those 

provided to others; 

(v) Deny a qualified individual with a 

disability the opportunity to participate 

as a member of planning or advisory 

boards; 

(vi) Otherwise limit a qualified 

individual with a disability in the 

enjoyment of any right, privilege, 

advantage, or opportunity enjoyed by 

others receiving the aid, benefit, or 

service. 

(2) A qualified individual with a 

disability may not be excluded from 

participation in any of the agency’s 

programs or activities, even though 

permissibly separate or different 

programs or activities exist. 

(3) The agency may not, directly or 

through contractual or other 

arrangements, utilize criteria or methods 

of administration the purpose or effect 

of which would— 

(i) Subject qualified individuals with 

disabilities to discrimination on the 

basis of disability; or 

(ii) Defeat or substantially impair 

accomplishment of the objectives of a 

program or activity with respect to 

individuals with disabilities. 

(4) The agency may not, in 

determining the site or location of a 

facility, make selections the purpose or 

effect of which would— 

(i) Exclude individuals with 

disabilities from, deny them the benefits 

of, or otherwise subject them to 

discrimination under any program or 

activity conducted by the agency, or; 

(ii) Defeat or substantially impair the 

accomplishment of the objectives of a 

program or activity with respect to 

individuals with disabilities. 

(5) The agency, in the selection of 

procurement contractors, may not use 

criteria that subject qualified 

individuals with disabilities to 

discrimination on the basis of disability. 

(6) The agency may not administer a 

licensing or certification program in a 

manner that subjects qualified 

individuals with disabilities to 

discrimination on the basis of disability, 

nor may the agency establish 

requirements for the programs or 

activities of licensees or certified 

entities that subject qualified 

individuals with disabilities to 

discrimination on the basis of disability. 

However, the programs or activities of 

entities that are licensed or certified by 

the agency are not, themselves, covered 

by this part. 

(c) The exclusion of nondisabled 

individuals from the benefits of a 

program limited by Federal statute or 

Executive order to individuals with 

disabilities or the exclusion of a specific 

class of individuals with disabilities 

from a program limited by Federal 

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class of individuals with disabilities is 

not prohibited by this part. 

(d) The agency shall administer 

programs and activities in the most 

integrated setting appropriate to the 

needs of qualified individuals with 

disabilities. 

§§ 1850.121–1850.129 [Reserved] 

§ 1850.130 Employment of qualified 

individuals with disabilities. 

No qualified individual with a 

disability shall, on the basis of such 

disability, be subject to discrimination 

in employment under any program or 

activity conducted by the agency. The 

definitions, requirements, and 

procedures of section 501 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

791), as established by the Equal 

Employment Opportunity Commission 

in 29 CFR part 1614, shall apply to 

employment in federally conducted 

programs or activities. 

§§ 1850.131–1850.139 [Reserved] 

§ 1850.140 Program accessibility: 

Discrimination against qualified individuals 

with disabilities prohibited. 

Except as otherwise provided in 

§ 1850.150, no qualified individual with 

disabilities shall, because the agency’s 

facilities are inaccessible to or unusable 

by individuals with disabilities, be 

denied the benefits of, be excluded from 

participation in, or otherwise be 

subjected to discrimination under any 

program or activity conducted by the 

agency. 

§§ 1850.141–1850.149 [Reserved] 

§ 1850.150 Program accessibility: Existing 

facilities. 

(a) General. The agency shall operate 

each program or activity so that the 

program or activity, when viewed in its 

entirety, is readily accessible to and 

usable by individuals with disabilities. 

This paragraph does not— 

(1) Necessarily require the agency to 

make each of its existing facilities 

accessible to and usable by individuals 

with disabilities; 

(2) In the case of historic preservation 

programs, require the agency to take any 

action that would result in a substantial 

impairment of significant historic 

features of an historic property; or 

(3) Require the agency to take any 

action that it can demonstrate would 

result in a fundamental alteration in the 

nature of a program or activity or in 

undue financial and administrative 

burdens. In those circumstances where 

agency personnel believe that the 

proposed action would fundamentally 

alter the program or activity or would 

result in undue financial and 

administrative burdens, the agency has 

the burden of proving that compliance 

with § 1850.150(a) would result in such 

alteration or burdens. The decision that 

compliance would result in such 

alteration or burdens must be made by 

the agency head or the agency head’s 

designee after considering all agency 

resources available for use in the 

funding and operation of the conducted 

program or activity and must be 

accompanied by a written statement of 

the reasons for reaching that conclusion. 

If an action would result in such an 

alteration or such burdens, the agency 

shall take any other action that would 

not result in such an alteration or such 

burdens but would nevertheless ensure 

that individuals with disabilities receive 

the benefits and services of the program 

or activity. 

(b) Methods—(1) General. The agency 

may comply with the requirements of 

this section through such means as 

redesign of equipment, reassignment of 

services to accessible buildings, 

assignment of aides to beneficiaries, 

home visits, delivery of services at 

alternate accessible sites, alteration of 

existing facilities and construction of 

new facilities, use of accessible rolling 

stock, or any other methods that result 

in making its programs or activities 

readily accessible to and usable by 

individuals with disabilities. The 

agency is not required to make 

structural changes in existing facilities 

where other methods are effective in 

achieving compliance with this section. 

The agency, in making alterations to 

existing buildings, shall meet 

accessibility requirements to the extent 

compelled by the Architectural Barriers 

Act of 1968, as amended (42 U.S.C. 

4151–4157), and any regulations 

implementing it. In choosing among 

available methods for meeting the 

requirements of this section, the agency 

shall give priority to those methods that 

offer programs and activities to qualified 

individuals with disabilities in the most 

integrated setting appropriate. 

(2) Historic preservation programs. In 

meeting the requirements of 

§ 1850.150(a) in historic preservation 

programs, the agency shall give priority 

to methods that provide physical access 

to individuals with disabilities. In cases 

where a physical alteration to an 

historic property is not required because 

of § 1850.150(a)(2) or (3), alternative 

methods of achieving program 

accessibility include— 

(i) Using audio-visual materials and 

devices to depict those portions of an 

historic property that cannot otherwise 

be made accessible; 

(ii) Assigning individuals to guide 

individuals with disabilities into or 

through portions of historic properties 

that cannot otherwise be made 

accessible; or 

(iii) Adopting other innovative 

methods. 

§ 1850.151 Program accessibility: New 

construction and alterations. 

Each building or part of a building 

that is constructed or altered by, on 

behalf of, or for the use of the agency 

shall be designed, constructed, or 

altered so as to be readily accessible to 

and usable by individuals with 

disabilities. The definitions, 

requirements, and standards of the 

Architectural Barriers Act (42 U.S.C. 

4151–4157), as established in 41 CFR 

101–19.600 to 101–19.607, apply to 

buildings covered by this section. 

§§ 1850.152–1850.159 [Reserved] 

§ 1850.160 Communications. 

(a) The agency shall take appropriate 

steps to ensure effective communication 

with applicants, participants, personnel 

of other Federal entities, and members 

of the public. 

(1) The agency shall furnish 

appropriate auxiliary aids where 

necessary to afford an individual with a 

disability an equal opportunity to 

participate in, and enjoy the benefits of, 

a program or activity conducted by the 

agency. 

(i) In determining what type of 

auxiliary aid is necessary, the agency 

shall give primary consideration to the 

requests of the individual with a 

disability. 

(ii) The agency need not provide 

individually prescribed devices, readers 

for personal use or study, or other 

devices of a personal nature. 

(2) Where the agency communicates 

with parties by telephone, 

telecommunication devices for deaf 

individuals or equally effective 

telecommunication systems shall be 

used to communicate with individuals 

with impaired hearing. 

(b) The agency shall ensure that 

interested individuals, including 

individuals with impaired vision or 

hearing, can obtain information as to the 

existence and location of accessible 

services, activities, and facilities. 

(c) The agency shall provide signage 

at a primary entrance to each of its 

inaccessible facilities, directing users to 

a location at which they can obtain 

information about accessible facilities. 

The international symbol for 

accessibility shall be used at each 

primary entrance of an accessible 

facility. 

(d) This section does not require the 

agency to take any action that it can 

demonstrate would result in a 


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fundamental alteration in the nature of 

a program or activity or in undue 

financial and administrative burdens. In 

those circumstances where agency 

personnel believe that the proposed 

action would fundamentally alter the 

program or activity or would result in 

undue financial and administrative 

burdens, the agency has the burden of 

proving that compliance with this 

section would result in such alteration 

or burdens. The decision that 

compliance would result in such 

alteration or burdens must be made by 

the agency head or the agency head’s 

designee after considering all agency 

resources available for use in the 

funding and operation of the conducted 

program or activity and must be 

accompanied by a written statement of 

the reasons for reaching that conclusion. 

If an action required to comply with this 

section would result in such an 

alteration or such burdens, the agency 

shall take any other action that would 

not result in such an alteration or such 

burdens but would nevertheless ensure 

that, to the maximum extent possible, 

individuals with disabilities receive the 

benefits and services of the program or 

activity. 

§§ 1850.161–1850.169 [Reserved] 

§ 1850.170 Compliance procedures. 

(a) The agency shall process 

complaints alleging violations of section 

504 with respect to employment 

according to the procedures established 

by the Equal Employment Opportunity 

Commission in 29 CFR part 1614 

pursuant to section 501 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

791). See Directive No. 51, Equal 

Employment Opportunity, NonDiscrimination Policy, for procedural 

information. 

(b) All complaints of discrimination 

on the basis of disability in programs 

and activities conducted by the agency 

shall be filed under the procedures 

described in this paragraph. 

(1) Who may file. Any individual who 

believes that they have been subjected 

to discrimination prohibited by this 

part, or an authorized representative of 

such individual, may file a complaint. 

Any individual who believes that any 

specific class of individuals has been 

subjected to discrimination prohibited 

by this part and who is a member of that 

class or the authorized representative of 

a member of that class may file a 

complaint. A charge on behalf of an 

individual or member of a class of 

individuals claiming to be aggrieved 

may be made by any individual, agency, 

or organization. 

(2) Where and when to file. 

Complaints shall be filed with the 

Director, Office of Equal Employment 

Opportunity (EEO Director), U.S. Office 

of Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036 

within 35-calendar days of the alleged 

act of discrimination. A complaint filed 

by personal delivery is considered filed 

on the date it is received by the EEO 

Director. The date of filing by facsimile 

or email is the date the facsimile or 

email is sent. The date of filing by mail 

is determined by the postmark date; if 

no legible postmark date appears on the 

mailing, the submission is presumed to 

have been mailed five days (excluding 

days on which the agency is closed for 

business) before its receipt. The date of 

filing by commercial overnight delivery 

is the date the document was delivered 

to the commercial overnight delivery 

service. 

(3) Acceptance of complaint. (i) The 

agency shall accept a complete 

complaint that is filed in accordance 

with paragraph (b) of this section and 

over which it has jurisdiction. The EEO 

Director shall notify the complainant of 

receipt and acceptance of the complaint. 

(ii) If the agency receives a complaint 

over which it does not have jurisdiction, 

it shall promptly notify the complainant 

and shall make reasonable efforts to 

refer the complaint to the appropriate 

entity. 

(iii) If the EEO Director receives a 

complaint that is not complete, the 

Director shall notify the complainant 

that additional information is needed. If 

the complainant fails to complete the 

complaint and return it to the EEO 

Director within 15 days of the 

complainant’s receipt of the request for 

additional information, the EEO 

Director shall dismiss the complaint 

with prejudice and shall inform the 

complainant. 

(4) Initial decision. Within 180 days of 

the receipt of a complete complaint, the 

EEO Director shall notify the 

complainant of the results of the 

investigation in an initial decision 

containing— 

(i) Findings of fact and conclusions of 

law; 

(ii) When applicable, a description of 

a remedy for each violation found; and 

(iii) A notice of the right to appeal. 

(5) Appeals. Any appeal of the EEO 

Director’s initial decision must be filed 

with the Principal Deputy Special 

Counsel (PDSC), U.S. Office of Special 

Counsel, 1730 M Street NW, Suite 218, 

Washington, DC 20036 by the 

complainant within 35 days of the date 

the EEO Director issues the decision 

required by paragraph (b)(4) of this 

section. The agency may extend this 

time for good cause when a complainant 

shows that circumstances beyond the 

complainant’s control prevented the 

filing of an appeal within the prescribed 

time limit. An appeal filed by personal 

delivery is considered filed on the date 

it is received by the PDSC. The date of 

filing by facsimile is the date of the 

facsimile. The date of filing by mail is 

determined by the postmark date; if no 

legible postmark date appears on the 

mailing, the submission is presumed to 

have been mailed five days (excluding 

days on which the agency is closed for 

business) before its receipt. The date of 

filing by commercial overnight delivery 

is the date the document was delivered 

to the commercial overnight delivery 

service. The appeal should be clearly 

marked ‘‘Appeal of Section 504 

Decision’’ and must contain specific 

objections explaining why the 

complainant believes the initial 

decision was factually or legally wrong. 

A copy of the initial decision being 

appealed should be attached to the 

appeal letter. 

(6) Appeal decision. The PDSC shall 

notify the complainant of the results of 

the appeal within 60 days of the receipt 

of the request. If the PDSC needs 

additional information from the 

complainant, the PDSC shall have 60 

days from the date the additional 

information is received to make a 

determination on the appeal. 

(7) Extension of time. The time limits 

cited in paragraphs (b)(2) and (5) of this 

section may be extended for an 

individual case when the PDSC 

determines there is good cause, based 

on the particular circumstances of that 

case, for the extension. 

(8) Delegation of authority. The 

agency may delegate its authority for 

conducting complaint investigations to 

other Federal agencies or may contract 

with a nongovernmental investigator to 

perform the investigation, but the 

authority for making the final 

determination may not be delegated to 

another entity. 

(c) The agency shall notify the 

Architectural and Transportation 

Barriers Compliance Board upon receipt 

of any complaint alleging that a building 

or facility that is subject to the 

Architectural Barriers Act of 1968, as 

amended (42 U.S.C. 4151–4157), is not 

readily accessible to and usable by 

individuals with disabilities. 

§§ 1850.171–1850.999 [Reserved] 

[FR Doc. 2022–01560 Filed 1–31–22; 8:45 am] 

BILLING CODE P 


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