This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

63401 

Vol. 87, No. 201 

Wednesday, October 19, 2022 

OFFICE OF SPECIAL COUNSEL 

5 CFR Chapter 18 

Prohibited Personnel Practices, 

Disclosures of Information Evidencing 

Wrongdoing, FOIA, Production of 

Records or Testimony, Privacy Act, 

and Disability Regulations To Conform 

With Changes in Law and Filing 

Procedures and Other Technical 

Changes 

AGENCY: U.S. Office of Special Counsel. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Special 

Counsel (OSC) revised its regulations to 

update the information on filing of 

complaints and disclosures with OSC, 

to update the prohibited personnel 

practice provisions, Freedom of 

Information Act (FOIA) provisions, 

Privacy Act provisions, provisions 

concerning nondiscrimination based on 

disability, and to make other technical 

revisions. These revisions are intended 

to streamline OSC’s filing procedures 

and reflect changes in law. 

DATES: This final rule is effective 

October 19, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Susan Ullman, General Counsel, U.S. 

Office of Special Counsel, by telephone 

at 202–804–7000, or by email at 

frliaison@osc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

OSC published proposed regulations 

on February 1, 2022. See 87 FR 5409. 

OSC solicited public comment on those 

proposed regulations, and the 30-day 

comment period ended March 4, 2022. 

OSC has considered the comments and 

is issuing this final rule. 

II. Overview of Comments Received 

In response to the proposed rule, OSC 

received five sets of comments. Two 

were from individuals; two were from 

organizations; and one was from a 

consortium of three organizations. One 

of the organizations endorsed the 

consortium’s comments. The 

consortium then amended its comments 

to cross-endorse the endorsing 

organization’s comments. In this 

document OSC refers collectively to 

these cross-endorsing organizations as 

‘‘the consortium.’’ In the first section we 

address general comments. In the 

sections that follow we address 

comments related to specific sections of 

the rule. OSC did not receive any 

comments concerning its Hatch Act 

program at § 1800.4, its regulations 

governing Production of Records or 

Testimony at subpart B of part 1820, or 

its disability regulations at part 1850. 

III. General Comments 

Comment: An individual commenter 

noted that the proposed rule did not cite 

to section 1097(m) of the National 

Defense Authorization Act for Fiscal 

Year 2018, Public Law 115–91. 

OSC Response: In the Proposed Rule, 

OSC set forth the statutory authority for 

issuing the Rule. Under section 

1097(m), OSC was ‘‘to prescribe 

regulations as may be necessary to 

perform’’ the functions of the office, 

including any functions that are 

required by changes in section 1097. 

OSC determined that no new 

regulations were necessary to perform 

the functions of the office. 

Comment: The consortium asked that 

OSC convene a town hall to hear from 

stakeholders to ‘‘improve’’ the rule and 

to ‘‘develop regulations reinforcing what 

has worked, and fixing what has not.’’ 

OSC Response: The Administrative 

Procedure Act establishes the process 

for commenting on proposed rules. 

Accordingly, OSC respectfully declines 

the request to host a town hall meeting. 

OSC further notes that it maintains 

continual contact with stakeholders. 

Comment: The consortium suggested 

that OSC expand its regulations to 

encompass its Alternate Dispute 

Resolution (ADR) program. 

OSC Response: OSC has added 

§ 1800.2(d) about its ADR program. OSC 

also refers interested persons to its 

public website—which includes a 

detailed description of OSC’s ADR 

program—linked here: https://osc.gov/ 

Services/Pages/ADR.aspx. 

Comment: The consortium asked that 

the rule ‘‘inform employees of the 

nature of available relief and the criteria 

to grant it . . . [and] include an 

assessment for damages caused by the 

pain and suffering of whistleblower 

retaliation and the traumatic stress it 

causes.’’ 

OSC Response: OSC declines to 

include in its regulations information 

about remedies potentially available to 

employees who file Prohibited Practices 

Personnel (PPP) complainants with OSC 

because OSC does not have the 

authority to award relief—that authority 

rests with the Merit Systems Protection 

Board (MSPB). See 5 U.S.C. 1221. The 

MSPB has issued its own regulations 

that may be responsive to the 

consortium’s request. OSC’s website 

does include information about 

potentially available remedies. All 

agencies have an ongoing duty to inform 

their employees of the rights and 

remedies available to the employees 

under civil service and whistleblower 

protection laws. See 5 U.S.C. 2302(c). 

Section IV below includes OSC’s 

responses to comments targeted at 

specific provisions in the proposed rule. 

IV. Specific Comments 

Comments on Part 1800—Filing of 

Complaints and Allegations 

Comments on § 1800.2(c) 

Comment: The consortium objected to 

§ 1800.2(c)’s requirement that filers use 

OSC’s Form 14 to file complaints, 

alleging that this rule might unduly 

burden certain filers, and suggesting 

that OSC look to the Department of 

Labor’s (DOL’s) whistleblower 

complaint program within the 

Occupational Safety and Health 

Administration (OSHA) process as a 

model for accepting whistleblower 

complaints. It further argued that filers 

‘‘need tools and guidance that is 

accessible and valuable to them in a 

language that they can understand.’’ 

OSC Response: OSC has successfully 

used Form 14 as its exclusive online 

complaint form for PPPs since August 

26, 2019. OSC published Form 14 for 

public comment on October 15, 2019. 

See 84 FR 55188 (October 15, 2019). 

None of the commenters responding to 

this proposed rule commented on the 

proposed Form 14 at that time or to the 

30-Day Notice and Request for 

Comments published at 85 FR 5725–26 

(January 31, 2020). OSC prefers that 

individuals who file disclosures or 

Hatch Act complaints use the online 

Form 14 but will accept submissions in 

other formats. See §§ 1800.3 and 1800.4. 


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The structured OSC Form benefits 

PPP filers by eliciting key information 

and then guiding filers to organize facts 

and allegations in a useful and readable 

way. Prior to the use of Form 14, and 

its predecessor Form 11, OSC intake 

staff often found it inefficient and timeconsuming to determine the nature of 

the PPP claim(s) involved leading to 

longer wait times before filers received 

a substantive response. Form 14 has 

improved OSC’s ability to efficiently 

and effectively review PPP complaints 

at the intake stage because OSC’s intake 

unit spends less time requesting and 

waiting for filers to provide additional 

information. 

DOL’s OSHA program is not 

analogous to OSC’s process. OSHA 

handles complaints from non-Federal 

employees from broad and varied 

backgrounds/industries, investigates 

private and corporate entities, and 

administers 24 separate whistleblower 

laws. In contrast, OSC has a limited and 

unique mission to safeguard the merit 

system and to act as a safe channel for 

certain disclosures of wrongdoing 

within the Executive Branch. DOL’s 

OSHA operations therefore should not 

be considered ‘‘similarly situated’’ and 

do not provide a good point of 

comparison for evaluating complaint 

filing systems. 

As for any potential burden on nonprofessional or disabled persons, OSC 

also already successfully processes 

complaints from federal employees in or 

job applicants for ‘‘nonprofessional’’ 

jobs, and from disabled persons. If OSC 

needs additional information or 

clarification from the filer, OSC first 

opens a complaint file, and then seeks 

supplemental information and 

clarification from the filer once the file 

is opened. 

Filers who prefer not to answer in the 

space provided on Form 14 itself may 

address the Form’s questions and 

provide supplemental information in a 

separate letter or document, but in any 

event the complainant must include a 

signed Form 14 with their submission. 

OSC’s website contains detailed 

instructions on how to file a PPP 

complaint along with ‘‘Useful Tips’’ if 

filers encounter difficulty accessing or 

submitting the Form. See https://

osc.gov/pages/file-complaint.aspx. Also, 

§ 1800.2(c) includes contact details for 

OSC’s intake division. And, as OSC 

notes on the website and on Form 14, 

OSC’s program specialists, who staff the 

Complaints Review Division (CRD), are 

available to answer inquiries and 

provide further assistance via info@

osc.gov or CRD’s telephone hotline, 

202–804–7000. For example, CRD 

specialists assist filers who need help 

completing or accessing Form 14; 

clearing any errors in accessing or 

submitting the form; obtaining a PDF 

copy of the form; or submitting a 

completed form/attachments for manual 

processing. 

OSC’s ongoing IT improvements 

should further allay the commenters’ 

concerns about challenges for some 

filers to use Form 14. OSC will be 

introducing a web-based Form 14 to 

increase ease of access to Form 14. 

OSC’s web-based Form 14 will also 

comply with ADA/Rehabilitation Act 

requirements. 

Comment: The consortium asserts that 

§ 1800.2(c)(3) should ‘‘tell complainants 

what is necessary for OSC to open a 

field investigation and explain the level 

of evidence needed.’’ An individual 

commenter and the consortium also 

asked that the rule include greater detail 

regarding how OSC exercises discretion 

in carrying out its statutory authorities 

under 5 U.S.C. 1212. 

OSC Response: By statute, OSC 

investigates all PPP complaints it 

receives. The proposed regulation is not 

intended to delimit how OSC exercises 

its discretion to determine when OSC’s 

investigation has uncovered sufficient 

evidence to make statutorily required 

determinations. These decisions are 

inherently individualized and made on 

a case-by-case basis. The 14 PPPs 

enumerated at 5 U.S.C. 2302 address an 

array of prohibited actions across the 

breadth of the civil service. OSC cannot 

propose regulations that would capture 

all the factors OSC may rely on to 

evaluate each prospective PPP 

complaint—especially because many 

complainants include allegations of 

more than one PPP in their complaint. 

Generally, though, OSC considers the 

same factors as any law enforcement 

agency—namely, the statutory authority, 

relevant case law, the recency of the 

alleged PPP, seriousness of harm, 

impact on important government 

interest, likelihood for success, potential 

for meaningful remedies, available 

resources, and any other factors the 

Special Counsel deems pertinent. 

Most importantly, though, these 

decisions are committed to the 

discretion of the Special Counsel, who 

is entrusted to protect the integrity of 

the merit system. A detailed, 

circumscribed regulation limiting the 

Special Counsel in exercising 

prosecutorial discretion would 

undermine the very independent 

judgment that the Special Counsel is 

required to exercise. 

Courts have consistently declined to 

question or interfere with OSC’s 

exercise of prosecutorial discretion. See 

Carson v. U.S. Office of Special 

Counsel, 633 F.3d 487, 493 (6th Cir. 

2011) (district court has no jurisdiction 

to consider OSC’s jurisdictional 

determinations or merits of its 

investigations); DeLeonardis v. 

Weiseman, 986 F.2d 725, 727 (5th Cir. 

1993) (‘‘We agree with our colleagues of 

the D.C. Circuit that when [OSC] 

decides to terminate an investigation 

that it began pursuant to a complaint, 

the decision is not reviewable.’’); and 

Wren v. Merit Sys. Prot. Bd., 681 F.2d 

867, 876 n. 9 (D.C. Cir. 1982) (‘‘It is also 

quite clear from the statutory language 

and corresponding legislative history 

that Congress did not mean to make 

[OSC’s] decisions to terminate or 

conduct an investigation or bring a 

proceeding before the Board reviewable 

on the merits.’’). 

Comment: The consortium also 

complained that the regulations do not 

reflect what it describes as 

‘‘unpublished policies for case 

disposition,’’ including regarding 

closing cases at the end of certain 

settlement negotiations. 

OSC Response: OSC treats each PPP 

complaint individually and does not 

have ‘‘unpublished policies for case 

disposition.’’ Before OSC terminates any 

investigation, 5 U.S.C. 1214(a)(1)(D) 

requires OSC to provide the filer with a 

written status report of the proposed 

findings of fact and legal conclusions. 

The filer may then submit written 

comments about the report to the 

Special Counsel within 10 days. After 

the comment period passes and OSC 

terminates the investigation, section 

1214(a)(2) requires that OSC provide the 

filer in writing: a notice that the 

investigation has been terminated; a 

summary of the relevant facts; the 

reasons for terminating the 

investigation; and a response to any 

comments submitted by the filer. These 

statements explain OSC’s reasons for a 

case disposition, including when a 

complainant declined a settlement 

proposal that OSC considers a 

reasonable offer from the Agency that 

allegedly committed the PPP. 

Comment: The comment alleging 

‘‘unpublished policies’’ also asked that 

the final rule require OSC to inform the 

surviving family of deceased 

complainants of the survivors’ ‘‘rights as 

beneficiaries’’ if a complainant dies 

during settlement negotiations. 

OSC Response: In the sad, unfortunate 

circumstance the comment describes, 

OSC staff would not be able to inform 

survivors of their rights as beneficiaries 

because OSC cannot provide legal 

advice, but OSC has and will alert 

survivors to the possibility that they 

have legal rights. 


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Comment: The consortium requested 

that the regulations include ‘‘an 

institutionalized right for complainants 

to testify and answer questions from an 

OSC representative on the full scope of 

supporting evidence’’ for a PPP 

complaint, as well as to rebut agency 

responses, noting that DOL’s OSHA 

regulations for the 24 corporate 

whistleblower laws provide this type of 

guidance. 

OSC Response: As noted above, OSC 

considers the comparison to DOL’s 

OSHA whistleblower protection 

inapposite. OSC’s Form 14 is a thorough 

questionnaire that guides complainants 

to provide detailed information and 

support for their claims. OSC staff are 

skilled in assessing the need for 

additional information and, if necessary, 

soliciting relevant information. A 

mandatory requirement such as the one 

the consortium proposes would 

interfere with OSC’s efficiency, 

effectiveness, and discretion. As 

discussed above, before OSC terminates 

any investigation, it provides ‘‘a written 

status report to the person who made 

the allegation of the proposed findings 

of fact and legal conclusions’’ and ‘‘[t]he 

person may submit written comments 

about the report.’’ 5 U.S.C. 

1214(a)(1)(D). If OSC terminates an 

investigation, it explains to the 

complainant the reasons why. See 5 

U.S.C. 1214(a)(2). OSC’s case closure 

letters also inform PPP complainants 

asserting whistleblower reprisal 

complaints based on violations of 5 

U.S.C. 2302(b)(8) and (b)(9) that the 

complainants may further pursue their 

claims at the MSPB as an Individual 

Right of Action (IRA) appeal. See 5 

U.S.C. 1214(a)(3)(A) and 1221(a). If OSC 

has not completed its investigation 

within 120 days after the complainant 

filed with OSC, the complainant may 

file an IRA appeal directly with the 

MSPB. See 5 U.S.C. 1214(a)(3)(B). 

Comment: The consortium stated that 

§ 1800.2(c) allowing anyone to file a PPP 

complaint is too broad and needs 

further definition. 

OSC Response: Under 5 U.S.C. 

1214(a)(1)(A), OSC cannot limit who 

can file a PPP complaint. Instead, it 

requires the Special Counsel to receive 

any allegation of a PPP and to 

investigate. Section 1800.2(c) 

appropriately reflects this statutory 

provision. Further, the operative 

analysis does not turn on the identity of 

the complainant or even whether the 

complainant was harmed but rather on 

whether OSC has jurisdiction to 

investigate the employing entity and 

whether the complaint on its face states 

the elements of a PPP. OSC therefore 

declines to change this section. 

Comments on § 1800.2 

Comment: The consortium 

commented that the proposed rule 

‘‘does not even inform employees’’ of 

OSC’s option to negotiate with an 

agency to obtain a voluntary ‘‘stay’’ to 

temporarily halt an agency’s proposed 

or final determination on an adverse 

action, or of OSC’s statutory option to 

seek a formal stay. 

OSC Response: As for formal stays, 5 

U.S.C. 1214(b)(1)(A)(i) provides the 

authority for OSC to seek a formal stay 

from the Merit Systems Protection 

Board, so it is unnecessary to repeat it 

in the regulations. The statute also 

grants the discretionary authority to the 

Special Counsel in selecting cases 

appropriate for stays. In addition, an 

employee seeking corrective action from 

OSC based on allegations of 

whistleblower reprisal may request a 

stay directly from the MSPB without 

waiting for OSC to act. See 5 U.S.C. 

1221(c)(1). 

With respect to informal stays from 

agencies, OSC believes it is impractical 

to issue a regulation governing its use of 

informal stays. OSC may request that an 

agency temporarily stay an adverse 

action during the OSC investigation. 

This is one of many informal actions 

that OSC may seek when OSC has 

reasonable grounds to believe that the 

facts and circumstances warrant such a 

request. 

OSC’s website provides information 

about OSC’s stay authority, including 

the availability of informal stays. See, 

e.g., https://osc.gov/Documents/PPP/ 

Policy%20Statements/ 

Policy%20Statement%20on

%20Stays%20of%20Personnel

%20Actions.pdf. 

Comment: The consortium asked that 

the rule ‘‘define standards for 

determining what and who will be 

redacted from the public record, such as 

agency reports, whistleblower 

comments, referral letters, etc.’’ 

OSC Response: In determining how 

best to protect the privacy interests of 

persons whose names and/or identities 

might otherwise be exposed to 

unwarranted invasions of their personal 

privacy OSC follows: the Privacy Act, 5 

U.S.C. 552a; exceptions to the Privacy 

Act set forth in OSC’s Routine Uses, 82 

FR 45076 (September 27, 2017); and 

OSC’s governing statutes, 5 U.S.C. 

1212(g)(1) and 1213(h). 

Comments on § 1800.3 

Comment: The consortium asked that 

§ 1800.3 be clarified to identify who is 

eligible to file disclosures under 5 

U.S.C. 1213. 

OSC Response: OSC respectfully 

directs all commenters to the text of 5 

U.S.C. 1213, which states that OSC 

accepts disclosures from federal 

employees, former federal employees, or 

applicants for federal employment. 

Comment: The organizational 

commenters asked that OSC’s 

regulations include a description of 

OSC’s authority under 5 U.S.C. 1213(g) 

to refer disclosures for ‘‘preliminary 

review’’ when supported by the lesser 

standard of a ‘‘reasonable belief’’ and 

explain the difference between the 

‘‘reasonable belief’’ and ‘‘substantial 

likelihood’’ standards. 

OSC Response: OSC respectfully 

notes that the comment is based on an 

apparent misreading of the relevant 

statute. Section 1213(g) does not refer to 

a ‘‘reasonable belief’’ standard. 

Comment: An individual commenter 

and the consortium asked that the rule 

include greater detail regarding how 

OSC exercises discretion in carrying out 

its statutory authorities ‘‘investigating 

cases where a federal employee 

whistleblower discloses wrongdoing by 

the federal agency employer’’ under 

section 1213. 

OSC Response: These comments 

appear to mis-read OSC’s statutory 

authorities. Section 1213 does not 

authorize OSC to investigate disclosures 

of wrongdoing, only to refer allegations 

to the appropriate agency head. 

Comment: The organizational 

commenters asked that the regulations 

provide ‘‘OSC’s decision-making criteria 

for acceptance of agency reports’’ and 

‘‘disclose all material Disclosure Unit 

procedures and standards.’’ 

OSC Response: The requirements for 

agency reports are set forth in 5 U.S.C. 

1213(d). OSC does not currently have 

any written procedures or standards that 

further define the statutory standard. 

OSC does have an Appendix that sets 

forth requirements and guidance for the 

agency creating the report, which is 

available on OSC’s website and which 

OSC sends to the agency head when 

OSC refers a matter for investigation. 

When the Special Counsel receives a 

report, OSC forwards it to the 

complainant so the complainant may 

submit comments to the Special 

Counsel. The Special Counsel reviews 

the agency’s report and determines 

whether ‘‘the findings of the head of the 

agency appear reasonable.’’ 5 U.S.C. 

1213(e)(2)(A). The Special Counsel may 

require the head of the agency to submit 

a supplemental report if the Special 

Counsel concludes that additional 

information or documentation is needed 

to determine whether the report is 

‘‘reasonable and sufficient.’’ 5 U.S.C. 

1213(e)(5). Public examples of OSC 

referral letters with appendices, agency 

reports, whistleblower comments, and 


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agency supplemental reports can be 

found in the Public Files section of 

OSC’s website at https://osc.gov. 

Comment: The consortium critiqued 

how agency Offices of Inspectors 

General (OIG) conduct investigations of 

alleged wrongdoing, especially 

regarding some OIG’s alleged failures to 

interview ‘‘key witnesses’’ and ‘‘alleged 

wrongdoers’’ who have left their 

respective agencies. The consortium 

then asked that OSC’s proposed rule 

‘‘address both the standards for 

investigating agencies more specifically 

and the procedures for handling agency 

evasion of complete investigations and 

reports that respond to the issues 

identified by Special Counsel’s referral 

letter.’’ 

OSC Response: OSC, like OIGs, is 

limited by its statutory authority. OSC 

has the statutory authority to refer a 

disclosure of wrongdoing to the head of 

an Agency for investigation, but no 

authority to mandate that Agencies 

pursue witnesses who have left federal 

employment. Likewise, OIGs currently 

do not have statutory authority to 

compel testimony from employees that 

have resigned or otherwise left 

government service. OSC publishes its 

current investigation guidance 

document to Agencies (Appendix) on its 

website. https://osc.gov/Documents/ 

Public%20Files/1213%20Appendix.pdf. 

This guidance directs Agencies to 

interview the whistleblower if the 

whistleblower has consented to 

disclosure of their identity. 

Comment: The consortium also 

commented that the final regulation 

‘‘should disclose all OSC policies that 

are material for action on . . . 

whistleblowing procedures.’’ 

OSC Response: OSC has added 

§ 1800.3(a)(1) to the final rule to reflect 

the Disclosure Unit’s deferral policy 

when OSC and the Agency receive 

overlapping information/disclosures. 

Comments on Part 1820—Freedom of 

Information Act Requests; Production of 

Records or Testimony 

Comments on § 1820.2 

Comment: An organizational 

commenter objected to OSC’s proposed 

change to § 1820.2(a)(2) and (b) to 

require the FOIA request letter or email 

to use the terms ‘‘FOIA Request’’ or 

‘‘FOIA/Privacy Request.’’ 

OSC Response: OSC works to achieve 

the goals of FOIA, including promoting 

expeditious, efficient responses to 

requests for information. OSC must 

therefore ensure that communications 

are quickly forwarded to OSC’s FOIA 

unit. This labeling requirement helps 

OSC achieve these aims and does not 

appear to overly burden the filer. OSC 

therefore declines to change 

§ 1820.2(a)(2) and (b). 

Comment: An organizational 

commenter objects that proposed 

§ 1820.2(d) deems a FOIA requestor to 

have agreed to pay all applicable fees up 

to $25 ‘‘unless the Special Counsel 

waives fees, the requestor is exempt, or 

the requestor otherwise qualifies for a 

waiver of fees.’’ The organizational 

commenter argues that this proposed 

provision means that a FOIA requestor 

would automatically be deemed to have 

agreed to pay all applicable fees 

whenever OSC denies a fee waiver 

request. Moreover, in that case a FOIA 

requestor would further be deemed to 

have agreed to pay all applicable fees 

even if their FOIA request expressly 

limited the amount of fees they were 

willing to pay. 

The commenter suggested that, 

instead, the final rule should require 

OSC to notify requestors of a fee waiver 

denial and provide the requestor the 

opportunity to specify or limit the 

amount of fees they are willing to pay 

before OSC begins processing the FOIA 

request—i.e., before any fees are 

incurred. OSC would also honor any fee 

limitation the requestor specified in the 

FOIA request or in its response to OSC’s 

fee waiver denial. 

OSC Response: OSC has revised 

§ 1820.7(d) to clarify its fee waiver 

provisions. 

Comment on § 1820.4 

Comment: A commenter wanted the 

rule to incorporate the statutory 

language ‘‘Multiple requests involving 

unrelated matters shall not be 

aggregated.’’ As stated in the General 

Provisions to part 1820, ‘‘These rules 

and procedures should be read together 

with the FOIA . . .’’, and the FOIA 

already precludes such aggregation of 

unrelated matters. OSC accordingly 

respectfully declines to adopt the 

proposed change to § 1820.4(d) and (f). 

Comments on § 1820.7 

Comment on § 1820.7(a): Two 

commenters puzzled over the sentence: 

‘‘In exceptional circumstances, OSC 

may charge fees after determining that 

unusual circumstances exist.’’ 

OSC Response: OSC updated 

§ 1820.7(a) to read, ‘‘In exceptional 

circumstances, OSC may charge fees.’’ 

Comment on § 1820.7(b): A 

commenter asked that OSC include a fee 

category included in the FOIA statute: 

‘‘All other requestors.’’ 

OSC Response: OSC added a 

definition of ‘‘all other requestors’’ to 

§ 1820.7(b). 

Comment on § 1820.7(e): An 

organizational commenter also objects 

to the new 1820.7(e), which allows OSC 

to charge an additional fee if it needs to 

provide a special service, such as 

shipping records by other than ordinary 

mail. The commenter proposes that the 

new section require OSC to seek 

advance approval before charging for 

the special services if they ‘‘are not 

necessary to respond to the request.’’ 

OSC Response: OSC adopted the 

suggested change and revised 

§ 1820.7(e) accordingly. 

Comment: An organizational 

commenter objected to the provisions 

regarding public interest fee waivers in 

proposed § 1820.7(h)(2)(ii) and (h)(3)(ii) 

as overly narrow. The commenter 

argued that the final rule should 

exclude the reference to the ‘‘releasable 

portions’’ of the requested records in 

§ 1820.7(h)(2)(ii) on the grounds that a 

requestor’s entitlement to a public 

interest fee waiver ‘‘should be evaluated 

based on the face of the request’’ and 

should not turn on whether the records 

are ultimately found to be ‘‘exempt from 

disclosure’’ unless they are ‘‘patently 

exempt documents. Carney v. U.S. Dep’t 

of Justice, 19 F.3d 807, 815 (2d Cir. 

1994); see also, e.g., Citizens for Resp. 

& Ethics in Washington v. U.S. Dep’t of 

Just., 602 F. Supp. 2d 121, 125–28 

(D.D.C. 2009).’’ 

OSC Response: OSC adopted the 

suggested change and revised 

§ 1820.7(h)(2)(ii) and (h)(3)(ii) 

accordingly. 

Comment: An organizational 

commenter noted that the relevant 

balancing test in § 1820.7(h)(3)(ii) 

should be whether the commercial 

interest outweighs the public interest, 

not whether the public interest 

outweighs the commercial interest. The 

commenter noted that, for disclosure to 

be ‘‘not primarily in the commercial 

interest of the requester,’’ the public 

interest in disclosure needs to be only 

equal to the commercial interest. The 

commenter asserted that the public 

interest in disclosure does not need to 

be ‘‘greater in magnitude than’’ the 

commercial interest and asked that OSC 

exclude that test from the final rule. 

OSC Response: OSC adopted the 

suggested change and revised 

§ 1820.7(h)(3)(ii) accordingly. 

Comments on Part 1830—Privacy Act 

Regulations 

Comment: An organizational 

commenter suggested changing 

‘‘physician’’ to ‘‘licensed health care 

professional’’ in § 1830.4. 

OSC Response: OSC adopted the 

suggested change and revised § 1830.4 

accordingly. 


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Federal Register / Vol. 87, No. 201 / Wednesday, October 19, 2022 / Rules and Regulations 63405 

Part 1850—Enforcement of 

Nondiscrimination on the Basis of 

Disability in Programs or Activities 

Conducted by the Office of Special 

Counsel 

OSC received no comments on this 

part but has made a non-substantive 

change to § 1850.170(b)(2) by updating 

the contact information because OSC no 

longer accepts fax submissions. 

Final Rule 

Administrative Procedure Act (APA): 

This action is taken under the Special 

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

to publish regulations in the Federal 

Register. 

Executive Orders 12866 and 13771: 

This rule is not a regulatory action 

under Executive Order (E.O.) 13771 

because OSC does not anticipate that 

proposed rule will have significant 

economic impact, raise novel issues, 

and/or have any other significant 

impacts. Thus, this rule is not a 

significant regulatory action under 

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

require an assessment of potential costs 

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

Order. 

Congressional Review Act (CRA): OSC 

has determined that this rule is not 

subject to the CRA because it falls under 

the exception provided at 5 U.S.C. 

804(3)(C). 

Regulatory Flexibility Act (RFA): The 

RFA does not apply because this rule 

will not directly regulate small entities. 

OSC therefore need not perform a 

regulatory flexibility analysis of small 

entity impacts. 

Unfunded Mandates Reform Act 

(UMRA): This rule does not impose any 

federal mandates on state, local, or tribal 

governments, or on the private sector 

within the meaning of the UMRA. 

National Environmental Policy Act 

(NEPA): This rule will have no physical 

impact upon the environment and 

therefore will not require any further 

review under NEPA. 

Paperwork Reduction Act (PRA): This 

rule does not contain any information 

collection requirements that require the 

approval of the Office of Management 

and Budget under the PRA. 

List of Subjects 

5 CFR Parts 1800 and 1810 

Administrative practice and 

procedure. 

5 CFR Part 1811 

Contracting with an inspector general. 

5 CFR Parts 1820 and 1830 

Archives and records, Reporting and 

recordkeeping requirements. 

5 CFR Part 1850 

Administrative practice and 

procedure, Buildings and facilities, 

Equal employment opportunity, Federal 

buildings and facilities, Individuals 

with disabilities. 

Approved: October 6, 2022. 

Travis G. Millsaps, 

Deputy Special Counsel for Public Policy. 

For the reasons stated in the 

preamble, OSC issues this final rule to 

amend chapter 18 of title 5 of the Code 

of Federal Regulations as follows: 

■ 1. Revise part 1800 to read as follows: 

PART 1800—FILING OF COMPLAINTS 

AND ALLEGATIONS 

Sec. 

1800.1 Scope and purpose. 

1800.2 Filing complaints of prohibited 

personnel practices or other prohibited 

activities. 

1800.3 Filing disclosures of information 

evidencing wrongdoing. 

1800.4 Filing complaints of Hatch Act 

violations and requesting advisory 

opinions. 

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

§ 1800.1 Scope and purpose. 

The purpose of this part is to 

implement the U.S. Office of Special 

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

1212–1216 and should be read in 

concert with these statutory provisions. 

This part does not create new individual 

rights but instead is intended to inform 

individuals of filing options they may 

be entitled to under 5 U.S.C. 1212–1216, 

and 2302. Individuals are encouraged to 

go to OSC’s website at https://osc.gov 

for more information about the OSC 

complaint form that should be used 

when filing with OSC. 

§ 1800.2 Filing complaints of prohibited 

personnel practices or other prohibited 

activities. 

(a) Prohibited personnel practices. 

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

OSC has investigative and prosecutorial 

jurisdiction over allegations that one or 

more of the prohibited personnel 

practices enumerated at 5 U.S.C. 2302 

were committed against current or 

former Federal employees or applicants 

for Federal employment, including: 

(1) Discrimination, including 

discrimination based on marital status 

or political affiliation (see § 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 


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investigative and prosecutorial 

jurisdiction over any allegation 

concerning the following: 

(1) Prohibited political activity by 

Federal employees covered by the Hatch 

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

73, subchapter III; 

(2) Prohibited political activity by 

State and local officers and employees 

covered by the Hatch Act at title 5 of the 

U.S. Code, chapter 15; 

(3) Arbitrary and capricious 

withholding of information that should 

be released pursuant to the Freedom of 

Information Act at 5 U.S.C. 552 (except 

for certain foreign and 

counterintelligence information); 

(4) Activities prohibited by any civil 

service law, rule, or regulation, 

including any activity relating to 

political intrusion in personnel 

decision-making; 

(5) Involvement by any employee in 

any prohibited discrimination found by 

any court or appropriate administrative 

authority to have occurred in the course 

of any personnel action (unless OSC 

determines that the allegation may be 

resolved more appropriately under an 

administrative appeals procedure); and 

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

violations of the Uniformed Services 

Employment and Reemployment Rights 

Act (USERRA), codified at 38 U.S.C. 

4301, et seq. 

(c) Procedures for filing complaints 

alleging prohibited personnel practices 

or other prohibited activities (other than 

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

complaint with OSC alleging one or 

more prohibited personnel practices, or 

other prohibited activities within OSC’s 

investigative jurisdiction. The OSC 

complaint form must be used to file all 

such complaints. 

(2) OSC will not process a complaint 

filed in any format other than the 

completed OSC complaint form 

designated in paragraph (c)(1) of this 

section. OSC will, however, accept 

material supplementing the contents of 

Form 14, as long as the filer also 

submits a signed form. If a filer does not 

use this form to submit a complaint, 

OSC will provide the filer with 

information about the form and obtain 

a signature on the form. The OSC 

complaint form will be considered to be 

filed on the date on which OSC receives 

a completed form. 

(3) The OSC complaint form requests 

that the filer provide basic information 

about the alleged prohibited personnel 

practices or other prohibited activities. 

A complaint may be amended to clarify 

or include additional allegations. A 

complaint is sufficient for investigation 

when OSC receives information 

identifying the parties, identifying any 

relevant personnel action(s), and 

describing generally the practices or 

activities at issue. 

(4) The OSC complaint form is 

available: 

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

out and complete on paper, or to 

complete online); 

(ii) By writing to OSC at: U.S. Office 

of Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505; 

or 

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

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

Washington, DC area). 

(5) A complainant can file a 

completed OSC complaint form: 

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

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

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

Counsel, 1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

(d) Alternate Dispute Resolution. For 

selected cases, OSC may offer 

Alternative Dispute Resolution (ADR) 

pursuant to the voluntary Alternative 

Dispute Resolution Act of 1998, 5 U.S.C. 

571–573. OSC provides information 

about its ADR program and process on 

its website at https://osc.gov. 

§ 1800.3 Filing disclosures of information 

evidencing wrongdoing. 

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

OSC is authorized to provide an 

independent and secure channel for use 

by current or former Federal employees 

and applicants for Federal employment 

to disclose information that they 

reasonably believe evidences 

wrongdoing by a Federal agency. Within 

45 days of receipt of the disclosure, OSC 

must determine whether there is a 

substantial likelihood that the 

information discloses a violation of any 

law, rule, or regulation; gross 

mismanagement; a gross waste of funds; 

an abuse of authority; a substantial and 

specific danger to public health or 

safety; or censorship related to scientific 

research or the integrity of the scientific 

process if the censorship will cause one 

of the aforementioned categories of 

wrongdoing. If it does, the law requires 

OSC to refer the information to the 

appropriate agency head for an 

investigation and a written report on the 

findings; and the agency head must 

submit the report to the Special 

Counsel. OSC may not disclose the 

identity of an individual who makes the 

disclosure unless the individual 

consents or the Special Counsel 

determines that the disclosure of the 

identity is necessary because of an 

imminent danger to public health or 

safety or imminent violation of any 

criminal law. The law does not 

authorize OSC to investigate any 

disclosure. 

(1) Deferral policy for certain 

disclosures. When OSC determines that 

a disclosure is being or has been 

investigated by an Agency, OSC will 

usually defer to such investigation 

rather than make a substantial 

likelihood determination. 

(b) Procedures for filing disclosures. 

Current or former Federal employees 

and applicants for Federal employment 

may file with OSC a disclosure of the 

type of information described in 5 

U.S.C. 1213(a)(1). Such disclosures must 

be filed in writing. 

(1) Filers are encouraged to use the 

OSC complaint form, which is available 

online, to file a disclosure of the type of 

information described in 5 U.S.C. 

1213(a)(1). OSC’s complaint form 

provides more information about OSC 

jurisdiction and procedures for 

processing whistleblower disclosures. 

The OSC complaint form is available: 

(i) Online at: https://osc.gov (may be 

completed online or printed out and 

completed on paper); 

(ii) By writing to OSC at: U.S. Office 

of Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505; 

or 

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

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

Washington, DC area). 

(2) Filers may use another written 

format to submit a disclosure to OSC, 

but the submission should include: 

(i) The name, mailing address, and 

telephone number(s) of the individual(s) 

making the disclosure(s); 

(ii) The department or agency, 

location, and organizational unit 

complained of; and 

(iii) A statement as to whether the 

filer consents to disclosure of the filer’s 

identity by OSC to the agency involved, 

in connection with any OSC referral to 

that agency. 

§ 1800.4 Filing complaints of Hatch Act 

violations and requesting advisory 

opinions. 

(a) Procedures for filing complaints 

alleging Hatch Act violations. 

(1) Complainants are encouraged to 

use the OSC complaint form (Form 14) 

to file Hatch Act complaints. The OSC 

complaint form is available: 

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

out and complete on paper, or to 

complete online); or 

(ii) By writing to OSC at: U.S. Office 

of Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036–4505. 

(2) Complaints alleging a violation of 

the Hatch Act not submitted on Form 14 

may also be submitted in any written 

form, and should include: 


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(i) The complainant’s name, mailing 

address, and telephone number (unless 

the matter is submitted anonymously); 

(ii) The department or agency, 

location, and organizational unit 

complained of; and 

(iii) A concise description of the 

actions complained about, names and 

positions of employees who took the 

actions, if known to the complainant, 

and dates of the actions, preferably in 

chronological order, together with any 

documentary evidence that the 

complainant can provide. 

(3) Written Hatch Act complaints 

including the information in 

1800.4(a)(2) above may be filed with 

OSC: 

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

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

Counsel, 1730 M Street NW, Suite 218, 

Washington, DC 20036–4505. 

(b) Procedures for requesting Hatch 

Act advisory opinions. Pursuant to 5 

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

issue advisory opinions only about 

political activity of Federal officers and 

employees, and political activity of 

certain State or local officers and 

employees. An individual can seek an 

advisory opinion from OSC: 

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

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

Counsel, Hatch Act Unit, 1730 M Street 

NW, Suite 218, Washington, DC 20036– 

4505; or 

(3) By phone at: (800) 854–2824 (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. 301 and 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), 

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. Add part 1811 to read as follows: 

PART 1811—OUTSIDE INSPECTOR 

GENERAL 

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

§ 1811.1 Requirement to contract with an 

outside inspector general. 

The Special Counsel shall enter into 

at least one agreement with the 

Inspector General of an agency under 

which— 

(1) the Inspector General shall— 

(A) receive, review, and investigate 

allegations of prohibited personnel 

practices or wrongdoing filed by 

employees of the Office of Special 

Counsel; and 

(B) develop a method for an employee 

of the Office of Special Counsel to 

communicate directly with the 

Inspector General; and 

(2) the Special Counsel— 

(A) may not require an employee of 

the Office of Special Counsel to seek 

authorization or approval before directly 

contacting the Inspector General in 

accordance with the agreement; and 

(B) may reimburse the Inspector 

General for services provided under the 

agreement. 

■ 4. Revise part 1820 to read as follows: 

PART 1820—FREEDOM OF 

INFORMATION ACT REQUESTS; 

PRODUCTION OF RECORDS OR 

TESTIMONY 

Sec. 1820.1 General provisions. 

Subpart A—FOIA Regulations 

1820.2 Requirements for making FOIA 

requests. 

1820.3 Consultations and referrals. 

1820.4 Timing of responses to requests. 

1820.5 Responses to requests. 

1820.6 Appeals. 

1820.7 Fees. 

1820.8 Business information. 

1820.9 Other rights and services. 

Subpart B—Production of Records or 

Testimony 

1820.10 Scope and purpose. 

1820.11 Applicability. 

1820.12 Definitions. 

1820.13 General prohibition. 

1820.14 Factors OSC will consider. 

1820.15 Service of requests or demands. 

1820.16 Requirements for litigants seeking 

documents or testimony. 

1820.17 Processing requests or demands. 

1820.18 Restrictions that apply to 

testimony. 

1820.19 Restrictions that apply to released 

records. 

1820.20 Procedure when a decision is not 

made prior to the time a response is 

required. 


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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 

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 


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and provide the requestor an 

opportunity to modify the request so 

that OSC can process the request within 

the 20-day time limit. OSC and the 

requestor can also negotiate an 

alternative time frame for processing the 

request or modified request. OSC’s 

FOIA Public Liaison is available to 

assist in the resolution of any disputes 

between the requestor and OSC. OSC 

must also advise the requestor of the 

requestor’s right to seek dispute 

resolution services from the National 

Archives and Records Administration’s 

(NARA) Office of Government 

Information Services (OGIS). OSC may 

consider a requestor’s refusal to 

reasonably modify the request or to 

negotiate an alternative time frame as a 

factor in determining whether unusual 

and/or exceptional circumstances exist. 

(2) Unusual circumstances means— 

(i) The need to search for and collect 

the requested records from OSC field 

offices, NARA storage facilities, or other 

locations away from OSC’s FOIA office; 

(ii) The need to search for, collect, 

and appropriately examine a 

voluminous amount of separate and 

distinct records demanded in a single 

request; or 

(iii) The need for consultation and/or 

referral with another OSC unit where 

the information concerns two or more 

components of OSC or with a Federal 

entity that has an interest in the 

information requested. 

(3) Exceptional circumstances 

means— 

(i) OSC has a backlog of pending 

requests and is making reasonable 

progress in reducing the backlog; and 

(ii) OSC estimates a search yield of 

more than 5000 pages. 

(b) OSC will notify the requestor in 

writing of its determination to grant or 

deny in full or in part a FOIA request. 

(c) Adverse determinations. Adverse 

determinations, or denials of requests, 

consist of: A determination to withhold 

any requested record in whole or in 

part; that a requested record does not 

exist or cannot be located; that a record 

is not readily reproducible in the form 

or format sought by the requestor; that 

the request does not seek a record 

subject to the FOIA; a determination on 

any disputed fee matter; or a denial of 

a request for expedited treatment. A 

notification to a requestor of an adverse 

determination on a request shall 

include: 

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

for the denial of the request, including 

any FOIA exemption applied by OSC in 

denying the request; and 

(2) A statement that the denial may be 

appealed under § 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. At 

the discretion of the Special Counsel, 

OSC may exempt certain requestors 

from search and duplication fees, 

including PPP complainants and 

subjects; Hatch Act complainants and 

subjects; Hatch Act advisory opinion 

requestors; whistleblowers; and 

USERRA complainants. OSC charges 

commercial users for search, review, 

and duplication fees under the FOIA in 

accordance with paragraph (c) of this 

section, except where a waiver or 

reduction of fees is granted under 

paragraph (h) of this section. OSC 

charges duplication fees, but not search 

fees, to educational or non-commercial 

scientific institutions; and to 

representative of the news media or 

news media requestors. OSC charges 

both search fees and duplication fees to 

all other requestors. If an exempted 

requestor abuses its exempt fee status to 

file numerous, duplicative, and/or 

voluminous FOIA requests, OSC may 

suspend the requestor’s exempt status 

and charge search and duplication fees. 

OSC may require up-front payment of 

fees before sending copies of requested 

records to a requestor. Requestors must 

pay fees by submitting to OSC’s FOIA 

Officer a check or money order made 

payable to the Treasury of the United 

States. See generally Uniform Freedom 

of Information Act Fee Schedule and 

Guidelines (hereinafter OMB Fee 

Guidelines), 52 FR 10,012, 10,017–18 

(Mar. 27, 1987). 

(b) Definitions. For purposes of this 

section: 

All other requestors means all 

requestors who do not fall into the 

categories of commercial use, 

educational institution, noncommercial 

scientific institution, and 

representatives of the news media. 

Commercial use request means a 

request from or on behalf of an 

individual who seeks information for a 

use or purpose that furthers commercial, 

trade, or profit interests, which can 

include furthering those interests 

through litigation. If OSC determines 

that the requestor seeks to put the 

records to a commercial use, either 

because of the nature of the request or 

because OSC has reasonable cause to 

doubt a requestor’s stated use, OSC shall 

provide the requestor with a reasonable 

opportunity to clarify. 

Direct costs mean those expenses that 

OSC incurs in searching for and 

duplicating (and, in the case of 

commercial use requests, reviewing) 

records to respond to a FOIA request. 

Direct costs include, for example, the 

salary of the employee performing the 

work (the basic rate of pay for the 

employee plus 16 percent of that rate to 

cover benefits) and the cost of operating 

duplicating equipment. Direct costs do 

not include overhead expenses such as 

rent, heating, or lighting the record 

storage facility. 

Duplication means the reasonable 

direct cost of making copies of 

documents. 

Educational institution means any 

school that operates a program of 

scholarly research. See OMB Fee 

Guidelines, 52 FR at 10,019. To be in 


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this category, a requestor must show 

that the request is authorized by and is 

made under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use but are 

sought to further scholarly research. 

Non-commercial scientific institution 

means an entity that is operated solely 

for the purpose of conducting scientific 

research the results of which are not 

intended to promote any particular 

product or industry and are not for 

commercial use. 

Representative of the news media or 

news media requestor means any 

individual or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. A non-exhaustive list of 

news media entities includes print 

newspapers, electronic outlets for print 

newspapers, broadcast and cable 

television networks and stations, 

broadcast and satellite radio networks 

and stations, internet-only outlets, and 

other alternative media as methods of 

news delivery evolve. For ‘‘freelance’’ 

journalists to be regarded as working for 

a news organization, they must 

demonstrate a solid basis for expecting 

publication through that organization, 

whether print or electronic. A requestor 

seeking to qualify as a news media 

requestor must not be seeking the 

requested records for a commercial use. 

The requestor’s news-dissemination 

function is not considered to be a 

commercial use. 

Review means the process of 

examining a record located in response 

to a request in order to determine 

whether any portion of the record is 

exempt from release. Review includes 

redacting exempt material, and 

otherwise evaluating and preparing the 

records for release. Review includes 

time spent obtaining and considering 

any formal objection to release made by 

a business submitter under § 1820.8(f). 

Review does not include time spent 

resolving general legal or policy issues 

about the application of exemptions. 

OSC may charge for review costs in 

connection with commercial use 

requests even if a record ultimately is 

not released. 

Search means the process of looking 

for and retrieving records or information 

responsive to a FOIA request, as well as 

page-by-page or line-by-line 

identification of responsive information 

within records. 

(c) Fees. OSC charges the following 

fees for responding to FOIA requests: 

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

search are free. OSC may charge for time 

spent searching even if it fails to locate 

responsive records, or even if OSC 

determines that located records are 

exempt from release. 

(ii) OSC charges $5.50 per quarter 

hour spent by clerical personnel in 

searching for and retrieving a requested 

record; $9.00 per quarter hour of search 

time spent by professional personnel; 

and $17.50 per quarter hour for search 

assistance from managerial personnel. 

(iii) OSC charges the direct costs of 

conducting electronic searches, 

including the costs of operator or 

programmer staff time apportionable to 

the search. 

(iv) OSC may charge additional costs 

in accordance with the applicable 

billing schedule established by NARA 

for requests requiring the retrieval of 

records from any Federal Records 

Center. 

(2) Duplication. OSC charges all 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 or if OSC waived fees before 

undertaking the search. OSC will not 

conduct a search or process responsive 

records until OSC and the requestor 

reach an agreement on the fees. If a 

requestor wants to pay a lower amount 

than $25.00, the fee notice will offer the 

requestor an opportunity to work with 

OSC to reformulate or narrow the 

request to try to lower the anticipated 

fees. 

(e) Charges for other services. OSC 

will notify requestors in advance if OSC 

intends to charge additional fees to 

provide special services, such as 

shipping records by other than ordinary 

mail. 

(f) Aggregating separate requests. OSC 

may aggregate requests and charge 

appropriate fees where OSC reasonably 

believes that a requestor or a group of 

requestors seek to avoid fees by dividing 

a request into a series of requests. OSC 

may presume that multiple such 

requests made within a 30-day period 

were divided in order to avoid fees. OSC 

will aggregate requests separated by 

more than 30 days only where a 

reasonable basis exists for determining 

that aggregation is warranted under the 

circumstances involved. 

(g) Advance payments. (1) For 

requests other than those described in 

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

OSC will not require the requestor to 

make an advance payment before work 

is begun or continued on a request. 

Payment owed for work already 

completed (that is, pre-payment after 

processing a request but before copies 

are sent to the requestor) is not an 

advance payment. 

(2) OSC may require advance payment 

up to the amount of the entire 

anticipated fee before beginning to 

process the request if OSC determines or 

estimates that a total fee to be charged 

under this section will exceed $250.00. 

(3) OSC may require the requestor to 

make an advance payment in full of the 

anticipated fee where a requestor has 

previously failed to pay a properly 

charged FOIA fee within 30 business 

days of the date of billing. 

(h) Requirements for waiver or 

reduction of fees. (1) OSC will furnish 

records responsive to a request without 

charge or at a charge reduced below that 

established under paragraph (c) of this 

section where OSC determines, based 

on all available information, that the 

requestor has demonstrated that: 

(i) Release of the requested records is 

in the public interest because it is likely 

to contribute significantly to public 

understanding of the operations or 

activities of the government; and 

(ii) Release of the records is not 

primarily in the commercial interest of 

the requestor. 

(2) To determine whether the first fee 

waiver requirement is met, OSC will 

consider the following factors: 

(i) Whether the subject of the 

requested records concerns a direct and 

clear connection to ‘‘the operations or 

activities of the government,’’ not 

remote or attenuated. 

(ii) Whether the release is ‘‘likely to 

contribute’’ to an understanding of 

government operations or activities. The 

requested records must be meaningfully 

informative about government 

operations or activities in order to be 

‘‘likely to contribute’’ to an increased 

public understanding of those 

operations or activities. The release of 

records already in the public domain is 

unlikely to contribute to such 

understanding. 

(iii) Whether release of the requested 

records will contribute to ‘‘public 

understanding.’’ The release must 

contribute to the understanding of a 

reasonably broad audience of 


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individuals interested in the subject. 

OSC shall consider a requestor’s 

expertise in the subject area and ability 

and intention to effectively convey 

information to the public. A 

representative of the news media 

presumptively satisfies this 

consideration. 

(iv) Whether the release is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities. The requestor must 

demonstrate that the release would 

significantly enhance the public’s 

understanding of the subject in 

question. 

(3) To determine whether the second 

fee waiver requirement is met, OSC will 

consider the following factors: 

(i) Whether the requestor has a 

commercial interest that would be 

furthered by the requested release. OSC 

shall consider any commercial interest 

of the requestor (with reference to the 

definition of ‘‘commercial use’’ in 

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

any individual on whose behalf the 

requestor may be acting, that would be 

furthered by the requested release. 

Requestors shall be given an 

opportunity to provide explanatory 

information about this consideration. 

(ii) Whether any identified 

commercial interest in the disclosure, is 

equal to or less than that of any 

identified public interest. OSC 

ordinarily shall presume that a news 

media requestor has satisfied the public 

interest standard. Release to data 

brokers or others who primarily compile 

and market government information for 

direct economic return shall be 

presumed not to primarily serve the 

public interest. 

(4) Where only a portion of the 

records to be released satisfies the 

requirements for a waiver of fees, a 

waiver shall be granted for that portion. 

(5) Requests for the waiver or 

reduction of fees should address the 

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

and (3) of this section, insofar as they 

apply to each request. OSC fee 

reduction or waiver decisions may 

consider the cost-effectiveness of its 

allocation of administrative resources. 

(i) No assessment of fees. OSC may 

not assess any search fees if it misses 

the statutory 20-business-day deadline 

to respond to the request, except under 

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

(1) If OSC determined that unusual 

circumstances apply and OSC provided 

a timely written notice to the requestor, 

OSC may extend the 20-day deadline by 

10 business days. OSC may not assess 

any search fees, however, if it misses the 

extended deadline. 

(2) OSC may charge search fees if the 

search yield would exceed 5,000 pages, 

and if OSC provides a timely written 

notice to the requestor. 

§ 1820.8 Business information. 

(a) In general. Business information 

obtained by OSC from a submitter may 

be released only pursuant to this 

section. 

(b) Definitions. For purposes of this 

section: 

Business information means trade 

secrets and commercial or financial 

information obtained by OSC from a 

submitter that may be protected from 

release under FOIA Exemption 4. 5 

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

Submitter means any individual or 

entity from whom OSC obtains business 

information, directly or indirectly. 

(c) Designation of business 

information. A submitter of business 

information must use good-faith efforts 

to designate, by appropriate markings, 

any portion of its submission that it 

considers to be protected from release 

under FOIA Exemption 4. 

(d) Notice to submitters. OSC shall 

provide a submitter with prompt written 

notice of a FOIA request or 

administrative appeal that appears to 

seek confidential business information 

wherever required under paragraph (e) 

of this section, except as provided in 

paragraph (h) of this section, in order to 

give the submitter an opportunity to 

object to release of any specified portion 

of those records under paragraph (f) of 

this section. The notice shall either 

describe the confidential business 

information requested or include copies 

of the requested records or record 

portions containing the information. 

(e) When notice is required. Notice 

shall be given to a submitter whenever: 

(1) The submitter designated the 

records in good faith as considered 

protected from release under FOIA 

Exemption 4; or 

(2) OSC has reason to believe that the 

records or portions of records may be 

protected from release under FOIA 

Exemption 4. 

(f) Opportunity to object to release. 

OSC will allow a submitter a reasonable 

time to respond to the notice described 

in paragraph (d) of this section and will 

specify that time period within the 

notice. The submitter must submit any 

objections to release in a detailed 

written statement. The statement must 

specify all grounds for withholding any 

portion of the records under any 

exemption of the FOIA and, in the case 

of Exemption 4, it must show why the 

information contained in the record is 

privileged or confidential. Submitters 

who fail to respond timely to the notice 

are deemed to have consented to release 

of the records. Information provided by 

a submitter under this paragraph may 

itself be subject to release under FOIA. 

(1) Notice of intent to release. OSC 

shall consider a submitter’s objections 

and specific grounds for non-release in 

deciding whether to release business 

information. If OSC decides to release 

business information over the objection 

of a submitter, OSC shall provide 

written notice including the reason(s) 

why OSC overruled the submitter’s 

objections; a description of the business 

information to be released; and a 

reasonable specified release date. 

(g) Exceptions to notice requirements. 

The notice requirements of paragraphs 

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

if: 

(1) OSC determines that the 

information should not be released; 

(2) The information has been lawfully 

published or has been officially made 

available to the public; 

(3) Release of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous— 

except that, in such a case, OSC shall, 

within a reasonable time prior to a 

specified release date, give the submitter 

written notice of any final decision to 

release the information. 

(h) Notice of FOIA lawsuit. OSC shall 

promptly notify a submitter if a 

requestor files a lawsuit seeking to 

compel the release of the submitter’s 

business information. 

(i) Corresponding notice to requestors. 

OSC shall notify requestor(s): that it 

provided submitters the opportunity to 

object to release under paragraph (d) of 

this section; if OSC subsequently 

releases the requested records under 

paragraph (g) of this section; and 

whenever a submitter files a lawsuit 

seeking to prevent OSC’s release of 

business information. 

§ 1820.9 Other rights and services. 

This subpart does not create a right or 

entitlement for any individual to any 

service or to the release of any record 

other than those available under FOIA. 

Subpart B—Production of Records or 

Testimony 

§ 1820.10 Scope and purpose. 

(a) This part establishes policy, 

assigns responsibilities, and prescribes 

procedures with respect to the 

production of official information, 

records, or testimony by current and 


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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 part applies to demands and 

requests from non-OSC litigants for 

testimony from current and former OSC 

employees, contractors, advisors, and 

consultants relating to official OSC 

information and/or for production of 

official OSC records or information in 

legal proceedings in which OSC is not 

a party. 

§ 1820.12 Definitions. 

The following definitions apply to 

this part. 

Demand means an order, subpoena, or 

other command of a court or other 

competent authority for OSC’s 

production or release of records or for 

an OSC employee’s appearance and 

testimony in a legal proceeding. 

General Counsel means OSC’s General 

Counsel or an individual to whom the 

General Counsel has delegated authority 

under this part. 

Legal proceeding means any matter 

before a court of law, administrative 

board or tribunal, commission, 

administrative law judge, hearing 

officer, or other body that conducts a 

legal or administrative proceeding. 

OSC employee or employee means 

any current or former OSC employee or 

contractor, including but not limited to 

OSC: temporary employees, interns, 

volunteers, consultants, and/or other 

advisors. 

Records or official records and 

information means all information in 

OSC’s custody and control, relating to 

information in OSC’s custody and 

control, or acquired by an OSC 

employee in the performance of official 

duties. 

Request means any request, by 

whatever method, for the production of 

records and information or for 

testimony which has not been ordered 

by a court or other competent authority. 

Testimony means any written or oral 

statements, including depositions, 

answers to interrogatories, affidavits, 

declarations, and interviews made by an 

individual in connection with a legal 

proceeding. 

§ 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, with the general 

proviso that OSC’s release of 

information is subject to the Privacy 

Act, 5 U.S.C. 552a, and applicable 

privileges including but not limited to 

the attorney work product and 

deliberative process privileges. See 

especially §§ 1830.1(e)(2)(ii) and 

1830.10(a) below. The General Counsel 

may also consider whether: 

(a) The purposes of this part are met; 

(b) Allowing such testimony or 

production of records would be 

necessary to prevent a miscarriage of 

justice; would assist or hinder OSC in 

performing its statutory duties; or would 

be in the best interest of OSC or the 

United States; 

(c) The records or testimony can be 

obtained from other sources; 

(d) The demand or request is unduly 

burdensome or otherwise inappropriate 

under the applicable rules of discovery 

or the rules of procedure governing the 

case or matter in which the demand or 

request arose; 

(e) Release would violate a statute, 

Executive Order, or regulation; would 

reveal trade secrets, confidential, 

sensitive, or privileged information, or 

information that would otherwise be 

inappropriate for release; or would 

impede or interfere with an ongoing law 

enforcement investigation or 

proceeding, or compromise 

constitutional rights or national security 

interests; 

(f) Allowing such testimony or 

production of records would result in 

OSC appearing to favor one litigant over 

another; 

(g) A substantial government interest 

is implicated; 

(h) The demand or request is within 

the authority of the party making it; 

and/or 

(i) The demand or request is 

sufficiently specific to be answered. 

§ 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 part. A request should be submitted 

before a demand is issued. 

(a) The request must be in writing 

(email suffices) and must be submitted 

to the General Counsel. 

(b) The written request must contain 

the following information: 

(1) The caption of the legal or 

administrative proceeding, docket 

number, and name and address of the 

court or other administrative or 

regulatory authority involved; 

(2) A copy of the complaint or 

equivalent document setting forth the 

assertions in the case and any other 

pleading or document necessary to 

show relevance; 

(3) A list of categories of records 

sought, a detailed description of how 

the information sought is relevant to the 

issues in the legal or administrative 

proceeding, and a specific description of 

the substance of the testimony or 

records sought; 

(4) A statement addressing the factors 

set out in § 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. 


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(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 

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 under applicable laws. 

Additionally, former OSC employees are 

subject to the restrictions and penalties 

of 18 U.S.C. 207 and 216. 

(b) A current OSC employee who 

testifies or produces official records and 

information in violation of this part may 

be subject to disciplinary action. 

§ 1820.24 Conformity with other laws and 

regulations; other rights. 

This regulation is not intended to 

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

with any statutory or common law 

privilege against the release of protected 

information. This part does not create 

any right, entitlement, or benefit, 

substantive or procedural, that a party 

may rely upon in any legal proceeding 

against the United States. 

■ 5. Revise part 1830 to read as follows: 

PART 1830—PRIVACY ACT 

REGULATIONS 

Sec. 

1830.1 Scope and purpose. 

1830.2 Definitions. 

1830.3 Requirements for making Privacy 

Act requests. 

1830.4 Medical records. 

1830.5 Requirements for requesting 

amendment of records. 

1830.6 Appeals. 

1830.7 Exemptions. 

1830.8 Fees. 

1830.9 Accounting for releases. 

1830.10 Conditions of disclosure. 

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

1212(e). 

§ 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. 


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(b) This part implements the Privacy 

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

by establishing OSC policies and 

procedures for the release of records and 

maintenance of certain systems of 

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

also establishes policies and procedures 

for an individual to correct or amend 

their record if they believe it is not 

accurate, timely, complete, or relevant 

or necessary to accomplish an OSC 

function. 

(c) OSC personnel protected by the 

Privacy Act include all staff, experts, 

contractors, consultants, volunteers, 

interns, and temporary employees. 

(d) Other individuals engaging with 

OSC protected by the Privacy Act 

include, but are not limited to, PPP 

complainants, subjects of PPP 

complaints, Hatch Act complainants, 

subjects of Hatch Act complaints, Hatch 

Act advisory opinion requesters, 

whistleblowers filing disclosures under 

5 U.S.C. 1213, and USERRA 

complainants, and the subjects of 

USERRA complaints. 

(e) This part does not: 

(1) Apply to OSC record systems that 

are not Privacy Act Record Systems. 

(2) Make any records available to 

individuals other than: 

(i) individuals who are the subjects of 

the records (‘‘subject individuals’’); 

(ii) individuals who can prove they 

have the consent of the subject 

individual; or 

(iii) individuals acting as legal 

representatives on behalf of such subject 

individuals. 

(3) Make available information 

compiled by OSC in reasonable 

anticipation of court litigation or formal 

administrative proceedings. The 

availability of such information, 

including to any subject individual or 

party to such litigation or proceeding, 

shall be governed by applicable 

constitutional principles, rules of 

discovery, privileges, and part 1820 of 

this chapter; or 

(4) Apply to personnel records 

maintained by the Human Capital Office 

of OSC. Those records are subject to 

regulations of the Office of Personnel 

Management in 5 CFR parts 293, 294, 

and 297. 

§ 1830.2 Definitions. 

As used in this part: 

Access means availability of a record 

to a subject individual. 

Disclosure means the availability or 

release of a record. 

Maintain means to maintain, collect, 

use, or disseminate when used in 

connection with the term ‘‘record;’’ and 

to have control over or responsibility for 

a system of records when used in 

connection with the term ‘‘system of 

records.’’ 

Notification means communication to 

an individual whether or not they are a 

subject individual. 

Record means any item, collection, or 

grouping of information about an 

individual that is maintained by OSC, 

including, but not limited to, the 

individual’s education, financial 

transactions, medical history, criminal, 

or employment history, that contains a 

name or an identifying number, symbol, 

or other identifying particular assigned 

to the individual. When used in this 

part, record means only a record that is 

in a system of records. 

Release means making available all or 

part of the information or records 

contained in an OSC system of records. 

Responsible OSC official means the 

officer listed in a notice of a system of 

records as the system manager or 

another individual listed in the notice of 

a system of records to whom requests 

may be made, or the designee of either 

such officer or individual. 

Subject individual means that 

individual to whom a record pertains. 

System of records means any group of 

records under the control of OSC from 

which a record is retrieved by personal 

identifier such as the name of the 

individual, number, symbol or other 

unique retriever assigned to the 

individual. Single records or groups of 

records which are not retrieved by a 

personal identifier are not part of a 

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

552a(a)(5). 

§ 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 

licensed health care professional the 

individual designates in writing. Upon 

receipt of the designation, the licensed 

health care professional will be 

permitted to review the records or to 

receive copies by mail upon proper 

verification of identity. 

§ 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: foiarequest@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 


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determination on the request shall be 

made promptly. 

(e) What will not change. The Privacy 

Act amendment or correction process 

will not be used to alter, delete, or 

amend information which is part of a 

determination of fact or which is 

evidence received in the record of a 

claim in any form of an administrative 

appeal process. Disagreements with 

these determinations are to be resolved 

through the assigned OSC Program 

Office. 

(f) Notice of error. If the record is 

wrong, OSC will correct it promptly. If 

wrong information was disclosed from 

the record, we will tell those of whom 

we are aware received that information 

that it was wrong and will give them the 

correct information. This will not be 

necessary if the change is not due to an 

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

(g) Record found to be correct. If the 

record is correct, OSC will inform the 

requestor in writing of the reason why 

we refuse to amend the record, the right 

to appeal the refusal, and the name and 

address of the official to whom the 

appeal should be sent. 

(h) Record of another government 

agency. If you request OSC to correct or 

amend a record governed by the 

regulation of another government 

agency, we will forward your request to 

such government agency for processing 

and we will inform you in writing of the 

referral. 

§ 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: foiarequest@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 requests to amend 

records. This exemption aims to prevent 

interference with OSC’s inquiries into 

matters under its jurisdiction, and to 

protect identities of confidential sources 

of information. OSC also reserves the 

right to assert exemptions for records 

received from another agency that could 

be properly claimed by that agency. 

OSC may exempt any information 

compiled in reasonable anticipation of a 

legal action or proceeding. 

§ 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 releases. 

OSC will maintain an accounting of 

all releases of a record for six (6) years 

or for the life of the record in 

accordance with the General Records 

Schedule, whichever is longer—except 

that, we will not make an accounting for 

releases: 

(a) Of a subject individual’s records 

record made with the subject 

individual’s consent; 

(b) To employees of OSC who have a 

need for the record to perform their 

duties; and 

(c) Required under the Freedom of 

Information Act, 5 U.S.C. 552, and part 

1820 of this chapter. 

§ 1830.10 Conditions of release. 

OSC shall not release any record that 

is contained in a system of records to 

any individual or to another agency, 

except as follows: 

(a) Consent to release by the subject 

individual. Except as provided in 

paragraphs (b) and (c) of this section 

authorizing releases of records without 

consent, no release of a record will be 

made without the consent of the subject 

individual. The consent shall be in 

writing and signed by the subject 

individual. The consent shall specify 

the individual, agency, or other entity to 

whom the record may be released, 

which record may be released and, 

where applicable, during which time 

frame the record may be released. The 

subject individual’s identity and, where 

applicable, the identity of the individual 

to whom the record is to be released 

shall be verified as set forth in 

§ 1830.3(c). 

(b) Releases without the consent of the 

subject individual. The releases listed in 

this paragraph may be made without the 

consent of the subject individual, 

including: 

(1) To employees and contractors of 

the Office of Special Counsel who have 

a need for the record to perform their 

duties. 

(2) As required by the Freedom of 

Information Act, 5 U.S.C. 552, and part 

1820 of this chapter. 

(3) To the entities listed in in the 

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

through (12). 

■ 6. Revise part 1850 to read as follows: 

PART 1850—ENFORCEMENT OF 

NONDISCRIMINATION ON THE BASIS 

OF DISABILITY IN PROGRAMS OR 

ACTIVITIES CONDUCTED BY THE 

OFFICE OF SPECIAL COUNSEL 

Sec. 

1850.101 Purpose. 

1850.102 Application. 

1850.103 Definitions. 

1850.104–1850.109 [Reserved] 

1850.110 Notice. 

1850.111–1850.119 [Reserved] 

1850.120 General prohibitions against 

discrimination against individuals with 

disabilities. 

1850.121–1850.129 [Reserved] 

1850.130 Employment of qualified 

individuals with disabilities. 

1850.131–1850.139 [Reserved] 

1850.140 Program accessibility: 

Discrimination against qualified 

individuals with disabilities prohibited. 

1850.141–1850.149 [Reserved] 

1850.150 Program accessibility: Existing 

facilities. 

1850.151 Program accessibility: New 

construction and alterations. 

1850.152–1850.159 [Reserved] 

1850.160 Communications. 

1850.161–1850.169 [Reserved] 

1850.170 Compliance procedures. 

1850.171–1850.999 [Reserved] 

Authority: 29 U.S.C. 794. 

§ 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 OSC, except for 

programs or activities conducted 

outside the United States that do not 

involve individuals with disabilities in 

the United States. 


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§ 1850.103 Definitions. 

Auxiliary aids means services or 

devices that enable individuals with 

impaired sensory, manual, or speaking 

skills to have an equal opportunity to 

participate in, and enjoy the benefits of, 

programs or activities conducted by 

OSC. For example, auxiliary aids useful 

for individuals with impaired vision 

include readers, Braille materials, audio 

recordings, and other similar services 

and devices. Auxiliary aids useful for 

individuals with impaired hearing 

include telephone handset amplifiers, 

telephones compatible with hearing 

aids, telecommunication devices for 

deaf individuals (TDDs), interpreters, 

notetakers, written materials, and other 

similar services and devices. 

Complete complaint means a written 

statement that contains the 

complainant’s name and address and 

describes OSC’s alleged discriminatory 

action in sufficient detail to inform OSC 

of the nature and date of the alleged 

violation of Section 504. It shall be 

signed by the complainant or by 

someone authorized to do so on the 

complainant’s behalf. Complaints filed 

on behalf of classes or third parties shall 

describe or identify (by name, if 

possible) the alleged victims of 

discrimination. 

Days means calendar days, unless 

otherwise stated. 

Facility means all or any portion of 

buildings, structures, equipment, roads, 

walks, parking lots, rolling stock or 

other conveyances, or other real or 

personal property. 

Historic properties means those 

properties that are listed or eligible for 

listing in the National Register of 

Historic Places or properties designated 

as historic under a statute of the 

appropriate State or local government 

body. 

Individual with a disability means any 

individual who has a physical or mental 

impairment that substantially limits one 

or more major life activities, has a 

record of such an impairment, or is 

regarded as having such an impairment. 

The following phrases used in this 

definition are further defined as follows: 

Physical or mental impairment 

includes— 

(1) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

Neurological; musculoskeletal; special 

sense organs; respiratory, including 

speech organs; cardiovascular; 

reproductive; digestive; genitourinary; 

hemic and lymphatic; skin; and 

endocrine; or 

(2) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities. 

(3) Also, physical and mental 

impairment includes, but is not limited 

to, such diseases and conditions as 

orthopedic, visual, speech, and hearing 

impairments, cerebral palsy, epilepsy, 

muscular dystrophy, multiple sclerosis, 

cancer, heart disease, diabetes, mental 

retardation, emotional illness, and drug 

addiction and alcoholism. 

Major life activities include functions 

such as— 

(1) Caring for oneself, performing 

manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, 

reaching, lifting, bending, speaking, 

breathing, learning, reading, 

concentrating, thinking, writing, 

communicating, interacting with others, 

and working; and 

(2) The operation of a major bodily 

function, such as the functions of the 

immune system, special sense organs 

and skin, normal cell growth, and 

digestive, genitourinary, bowel, bladder, 

neurological, brain, respiratory, 

circulatory, cardiovascular, endocrine, 

hemic, lymphatic, musculoskeletal, and 

reproductive systems. The operation of 

a major bodily function includes the 

operation of an individual organ within 

a body system. 

Qualified individual with a disability 

means— 

(1) With respect to any OSC program 

or activity under which an individual is 

required to perform services or to 

achieve a level of accomplishment, an 

individual with a disability who meets 

the essential eligibility requirements 

and who can achieve the purpose of 

OSC’s program or activity without 

modifications in the program or activity 

that OSC can demonstrate would result 

in a fundamental alteration in its nature; 

(2) With respect to any other program 

or activity, an individual with a 

disability who meets the essential 

eligibility requirements for participation 

in, or receipt of benefits from, that 

program or activity; and 

(3) Qualified individuals with 

disabilities as that term is defined for 

purposes of employment in 29 CFR 

1614.203, which is made applicable to 

this part by § 1850.130. 

Has a record of such an impairment 

means has a history of, or has been 

misclassified as having, a mental or 

physical impairment that substantially 

limits one or more major life activities. 

Is regarded as having an impairment 

means— 

(1) Has a physical or mental 

impairment that does not substantially 

limit major life activities but is treated 

by the agency as constituting such a 

limitation; 

(2) Has a physical or mental 

impairment that substantially limits 

major life activities only as a result of 

the attitudes of others toward such 

impairment; or 

(3) Has none of the impairments 

defined in paragraph (1) of this 

definition but is treated by the agency 

as having such an impairment. 

Section 504 means Section 504 of the 

Rehabilitation Act of 1973 (Pub. L. No. 

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

amended by the Rehabilitation Act 

Amendments of 1974 (Pub. L. No. 93– 

516, 88 Stat. 1617); the Rehabilitation, 

Comprehensive Services, and 

Developmental Disabilities 

Amendments of 1978 (Pub. L. No. 95- 

602, 92 Stat. 2955); and the 

Rehabilitation Act Amendments of 1986 

(Pub. L. 99–506, 100 Stat. 1810). As 

used in this part, Section 504 applies 

only to programs or activities conducted 

by Executive agencies and not to 

federally assisted programs. 

§ § 1850.104–1850.109 [Reserved] 

§ 1850.110 Notice. 

OSC shall make available to all 

interested individuals information 

regarding the provisions of this part and 

its applicability to the programs or 

activities conducted by OSC as 

necessary to apprise such individuals of 

the protections assured them by Section 

504 and this part. 

§ § 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 OSC. 

(b) OSC, in providing any aid, benefit, 

or service, may not, directly or through 

contractual, licensing, or other 

arrangements, on the basis of 

disability— 

(1) Deny a qualified individual with a 

disability the opportunity to participate 

in or benefit from the aid, benefit, or 

service; 

(2) Afford a qualified individual with 

a disability an opportunity to participate 

in or benefit from the aid, benefit, or 

service that is not equal to that afforded 

others; 

(3) Provide a qualified individual 

with a disability with an aid, benefit, or 

service that is not as effective in 

affording equal opportunity to obtain 


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the same result, to gain the same benefit, 

or to reach the same level of 

achievement as that provided to others; 

(4) Provide different or separate aid, 

benefits, or services to individuals with 

disabilities or to any class of individuals 

with disabilities than is provided to 

others unless such action is necessary to 

provide qualified individuals with 

disabilities with aid, benefits, or 

services that are as effective as those 

provided to others; 

(5) Deny a qualified individual with a 

disability the opportunity to participate 

as a member of planning or advisory 

boards; 

(6) Otherwise limit a qualified 

individual with a disability in the 

enjoyment of any right, privilege, 

advantage, or opportunity enjoyed by 

others receiving the aid, benefit, or 

service. 

(7) OSC may not exclude a qualified 

individual with a disability from 

participation in any of OSC’s programs 

or activities, even though permissibly 

separate or different programs or 

activities exist. 

(c) OSC may not, directly or through 

contractual or other arrangements, 

utilize criteria or methods of 

administration the purpose or effect of 

which would— 

(1) Subject qualified individuals with 

disabilities to discrimination on the 

basis of disability; or 

(2) Defeat or substantially impair 

accomplishment of the objectives of a 

program or activity with respect to 

individuals with disabilities. 

(d) OSC may not, in determining the 

site or location of a facility, make 

selections the purpose or effect of which 

would— 

(1) Exclude individuals with 

disabilities from, deny them the benefits 

of, or otherwise subject them to 

discrimination under any program or 

activity conducted by OSC, or; 

(2) Defeat or substantially impair the 

accomplishment of the objectives of a 

program or activity with respect to 

individuals with disabilities. 

(e) OSC, in the selection of 

procurement contractors, may not use 

criteria that subject qualified 

individuals with disabilities to 

discrimination on the basis of disability. 

(f) OSC may not administer a 

licensing or certification program in a 

manner that subjects qualified 

individuals with disabilities to 

discrimination on the basis of disability, 

nor may OSC establish requirements for 

the programs or activities of licensees or 

certified entities that subject qualified 

individuals with disabilities to 

discrimination on the basis of disability. 

However, the programs or activities of 

entities that are licensed or certified by 

OSC are not, themselves, covered by 

this part. 

(g) This part does not prohibit the 

exclusion of nondisabled individuals 

from the benefits of a program limited 

by Federal statute or Executive order to 

individuals with disabilities or the 

exclusion of a specific class of 

individuals with disabilities from a 

program limited by Federal statute or 

Executive order to a different class of 

individuals with disabilities. 

(h) OSC shall administer programs 

and activities in the most integrated 

setting appropriate to the needs of 

qualified individuals with disabilities. 

§ § 1850.121–1850.129 [Reserved] 

§ 1850.130 Employment of qualified 

individuals with disabilities. 

OSC shall not subject any qualified 

individual with a disability, on the basis 

of such disability, to discrimination in 

employment under any program or 

activity OSC conducts. The definitions, 

requirements, and procedures of Section 

501 of the Rehabilitation Act of 1973 (29 

U.S.C. 791), as established by the Equal 

Employment Opportunity Commission 

in 29 CFR part 1614, shall apply to 

employment in federally conducted 

programs or activities. 

§ § 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 OSC’s 

facilities are inaccessible to or unusable 

by individuals with disabilities, be 

denied the benefits of, be excluded from 

participation in, or otherwise be 

subjected to discrimination under any 

program or activity conducted by OSC. 

§ § 1850.141–1850.149 [Reserved] 

§ 1850.150 Program accessibility: Existing 

facilities. 

(a) General. OSC shall operate each 

program or activity so that the program 

or activity, when viewed in its entirety, 

is readily accessible to and usable by 

individuals with disabilities. This 

paragraph does not— 

(1) Necessarily require OSC to make 

each of its existing facilities accessible 

to and usable by individuals with 

disabilities; 

(2) In the case of historic preservation 

programs, require OSC to take any 

action that would result in a substantial 

impairment of significant historic 

features of an historic property; or 

(3) Require OSC to take any action 

that it can demonstrate would result in 

a fundamental alteration in the nature of 

a program or activity or in undue 

financial and administrative burdens. In 

those circumstances where OSC 

personnel believe that the proposed 

action would fundamentally alter the 

program or activity or would result in 

undue financial and administrative 

burdens, OSC has the burden of proving 

that compliance with this paragraph (a) 

would result in such alteration or 

burdens. The decision that compliance 

would result in such alteration or 

burdens must be made by the Special 

Counsel or the Special Counsel’s 

designee after considering all OSC 

resources available for use in the 

funding and operation of the conducted 

program or activity and must be 

accompanied by a written statement of 

the reasons for reaching that conclusion. 

If an action would result in such an 

alteration or such burdens, OSC shall 

take any other action that would not 

result in such an alteration or such 

burdens but would nevertheless ensure 

that individuals with disabilities receive 

the benefits and services of the program 

or activity. 

(b) Methods—(1) General. OSC may 

comply with the requirements of this 

section through such means as redesign 

of equipment, reassignment of services 

to accessible buildings, assignment of 

aides to beneficiaries, home visits, 

delivery of services at alternate 

accessible sites, alteration of existing 

facilities and construction of new 

facilities, use of accessible rolling stock, 

or any other methods that result in 

making its programs or activities readily 

accessible to and usable by individuals 

with disabilities. OSC is not required to 

make structural changes in existing 

facilities where other methods are 

effective in achieving compliance with 

this section. OSC, in making alterations 

to existing buildings, shall meet 

accessibility requirements to the extent 

compelled by the Architectural Barriers 

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

4151–4157), and any regulations 

implementing it. In choosing among 

available methods for meeting the 

requirements of this section, OSC shall 

give priority to those methods that offer 

programs and activities to qualified 

individuals with disabilities in the most 

integrated setting appropriate. 

(2) Historic preservation programs. In 

meeting the requirements of paragraph 

(a) of this section in historic 

preservation programs, OSC shall give 

priority to methods that provide 

physical access to individuals with 

disabilities. In cases where a physical 

alteration to an historic property is not 

required because of paragraphs (a)(2) or 

(3) of this section, alternative methods 


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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 OSC shall be 

designed, constructed, or altered so as to 

be readily accessible to and usable by 

individuals with disabilities. The 

definitions, requirements, and standards 

of the Architectural Barriers Act (42 

U.S.C. 4151–4157), as established in 41 

CFR 101-19.600 to 101–19.607, apply to 

buildings covered by this section. 

§ § 1850.152–1850.159 [Reserved] 

§ 1850.160 Communications. 

(a) OSC shall take appropriate steps to 

ensure effective communication with 

applicants, participants, personnel of 

other Federal entities, and members of 

the public. 

(1) OSC shall furnish appropriate 

auxiliary aids where necessary to afford 

an individual with a disability an equal 

opportunity to participate in, and enjoy 

the benefits of, a program or activity 

conducted by OSC. 

(i) In determining what type of 

auxiliary aid is necessary, OSC shall 

give primary consideration to the 

requests of the individual with a 

disability. 

(ii) OSC need not provide 

individually prescribed devices, readers 

for personal use or study, or other 

devices of a personal nature. 

(2) Where OSC communicates with 

parties by telephone, 

telecommunication devices for deaf 

individuals or equally effective 

telecommunication systems shall be 

used to communicate with individuals 

with impaired hearing. 

(b) OSC shall ensure that interested 

individuals, including individuals with 

impaired vision or hearing, can obtain 

information as to the existence and 

location of accessible services, 

activities, and facilities. 

(c) OSC shall provide signage at a 

primary entrance to each of its 

inaccessible facilities, if any, directing 

users to a location at which they can 

obtain information about accessible 

facilities. The international symbol for 

accessibility shall be used at each 

primary entrance of an accessible 

facility. 

(d) This section does not require OSC 

to take any action that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity or in undue 

financial and administrative burdens. In 

those circumstances where OSC 

personnel believe that the proposed 

action would fundamentally alter the 

program or activity or would result in 

undue financial and administrative 

burdens, OSC has the burden of proving 

that compliance with this section would 

result in such alteration or burdens. The 

decision that compliance would result 

in such alteration or burdens must be 

made by the Special Counsel or the 

Special Counsel’s designee after 

considering all OSC resources available 

for use in the funding and operation of 

the conducted program or activity and 

must be accompanied by a written 

statement of the reasons for reaching 

that conclusion. If an action required to 

comply with this section would result 

in such an alteration or such burdens, 

OSC shall take any other action that 

would not result in such an alteration or 

such burdens but would nevertheless 

ensure that, to the maximum extent 

possible, individuals with disabilities 

receive the benefits and services of the 

program or activity. 

§ § 1850.161–1850.169 [Reserved] 

§ 1850.170 Compliance procedures. 

(a) OSC shall process complaints 

alleging violations of section 504 with 

respect to employment according to the 

procedures established by the Equal 

Employment Opportunity Commission 

in 29 CFR part 1614 pursuant to section 

501 of the Rehabilitation Act of 1973 (29 

U.S.C. 791). 

(b) All complaints of discrimination 

on the basis of disability in programs 

and activities conducted by OSC shall 

be filed under the procedures described 

in this paragraph. 

(1) Who may file. Any individual who 

believes that they have been subjected 

to discrimination prohibited by this 

part, or an authorized representative of 

such individual, may file a complaint. 

Any individual who believes that any 

specific class of individuals has been 

subjected to discrimination prohibited 

by this part and who is a member of that 

class or the authorized representative of 

a member of that class may file a 

complaint. A charge on behalf of an 

individual or member of a class of 

individuals claiming to be aggrieved 

may be made by any individual, agency, 

or organization. 

(2) Where and when to file. 

Complaints shall be filed with the 

Director, Office of Equal Employment 

Opportunity (EEO Director), U.S. Office 

of Special Counsel, 1730 M Street NW, 

Suite 218, Washington, DC 20036 

within 35-calendar days of the alleged 

act of discrimination. A complaint filed 

by personal delivery is considered filed 

on the date it is received by the EEO 

Director. The date of filing by email is 

the date the email is sent. The date of 

filing by mail is determined by the 

postmark date; if no legible postmark 

date appears on the mailing, the 

submission is presumed to have been 

mailed five days (excluding days on 

which the agency is closed for business) 

before its receipt. The date of filing by 

commercial overnight delivery is the 

date the document was delivered to the 

commercial overnight delivery service. 

(3) Acceptance of complaint. (i) OSC 

shall accept a complete complaint that 

is filed in accordance with paragraph (b) 

of this section and over which it has 

jurisdiction. The EEO Director shall 

notify the complainant of receipt and 

acceptance of the complaint. 

(ii) If OSC receives a complaint over 

which it does not have jurisdiction, it 

shall promptly notify the complainant 

and shall make reasonable efforts to 

refer the complaint to the appropriate 

entity. 

(iii) If the EEO Director receives a 

complaint that is not complete, the 

Director shall notify the complainant 

that additional information is needed. If 

the complainant fails to complete the 

complaint and return it to the EEO 

Director within 15 days of the 

complainant’s receipt of the request for 

additional information, the EEO 

Director shall dismiss the complaint 

with prejudice and shall inform the 

complainant. 

(4) Within 180 days of the receipt of 

a complete complaint, the EEO Director 

shall notify the complainant of the 

results of the investigation in an initial 

decision containing— 

(i) Findings of fact and conclusions of 

law; 

(ii) When applicable, a description of 

a remedy for each violation found; and 

(iii) A notice of the right to appeal. 

(5) Any appeal of the EEO Director’s 

initial decision must be filed with the 

Principal Deputy Special Counsel 

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

1730 M Street NW, Suite 218, 

Washington, DC 20036 by the 

complainant within 35 days of the date 

the EEO Director issues the decision 

required by paragraph (b)(4) of this 

section. OSC may extend this time for 

good cause when a complainant shows 

that circumstances beyond the 


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Federal Register / Vol. 87, No. 201 / Wednesday, October 19, 2022 / Rules and Regulations 63419 

complainant’s control prevented the 

filing of an appeal within the prescribed 

time limit. An appeal filed by personal 

delivery is considered filed on the date 

it is received by the PDSC. The date of 

filing by mail is determined by the 

postmark date; if no legible postmark 

date appears on the mailing, the 

submission is presumed to have been 

mailed five days (excluding days on 

which the agency is closed for business) 

before its receipt. The date of filing by 

commercial overnight delivery is the 

date the document was delivered to the 

commercial overnight delivery service. 

The appeal should be clearly marked 

‘‘Appeal of Section 504 Decision’’ and 

must contain specific objections 

explaining why the complainant 

believes the initial decision was 

factually or legally wrong. A copy of the 

initial decision being appealed should 

be attached to the appeal letter. 

(6) The PDSC shall notify the 

complainant of the results of the appeal 

within 60 days of the receipt of the 

request. If the PDSC needs additional 

information from the complainant, the 

PDSC shall have 60 days from the date 

the additional information is received to 

make a determination on the appeal. 

(7) The time limits cited in paragraphs 

(b)(2) and (5) of this section may be 

extended for an individual case when 

the PDSC determines there is good 

cause, based on the particular 

circumstances of that case. 

(8) OSC may delegate its authority for 

conducting complaint investigations to 

other Federal agencies or may contract 

with a nongovernmental investigator to 

perform the investigation, but the 

authority for making the final 

determination may not be delegated to 

another entity. 

(c) OSC shall notify the Architectural 

and Transportation Barriers Compliance 

Board upon receipt of any complaint 

alleging that a building or facility that 

is subject to the Architectural Barriers 

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

4151–4157), is not readily accessible to 

and usable by individuals with 

disabilities. 

§ § 1850.171–1850.999 [Reserved] 

[FR Doc. 2022–22155 Filed 10–18–22; 8:45 am] 

BILLING CODE 7405–01–P 

DEPARTMENT OF AGRICULTURE 

Rural Utilities Service 

7 CFR Part 1740 

[Docket No. RUS–20–Telecom–0023] 

RIN 0572–AC51 

Rural eConnectivity Program 

AGENCY: Rural Utilities, USDA. 

ACTION: Final rule; confirmation and 

response to comments. 

SUMMARY: The Rural Utilities Service 

(RUS or Agency), an agency in the 

United States Department of Agriculture 

(USDA) Rural Development Mission 

area, published a final rule with 

comment in the Federal Register on 

February 26, 2021, to establish the Rural 

eConnectivity Program (ReConnect 

Program). The final rule described the 

eligibility requirements, the application 

process, the criteria that RUS uses to 

assess applicants’ creditworthiness and 

outlined the application process. 

Through this action, RUS is confirming 

the final rule as it was published and 

providing responses to the public 

comments that addressed the broadband 

speed used to determine eligibility. 

DATES: The final rule published 

February 26, 2021, at 86 FR 11609, is 

confirmed as of April 27, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Laurel Leverrier, Assistant 

Administrator; Telecommunication 

Program; Rural Development; U.S. 

Department of Agriculture; 1400 

Independence Avenue SW; Room 4121– 

S; Washington, DC 20250; telephone 

202–720–3416, email laurel.leverrier@

usda.gov. Persons with disabilities or 

who require alternative means for 

communication should contact the 

USDA Target Center at 202–720–2600. 

SUPPLEMENTARY INFORMATION: The 

ReConnect Program was authorized by 

the Consolidated Appropriations Act, 

2018 (Pub. L. 115–141), which directed 

the program to be conducted under the 

Rural Electrification Act of 1936 (7 

U.S.C. 901 et seq). The program has 

received successive appropriations by 

Congress and has matured due to 

Agency experience and feedback 

provided by stakeholders. Since its 

establishment in 2018, the ReConnect 

Program has been implemented by 

issuing four Funding Opportunity 

Announcements (FOA). 

The ReConnect Program provides 

loans, grants, and loan/grant 

combinations to facilitate broadband 

deployment in rural areas. In facilitating 

the expansion of broadband services 

and infrastructure, the program fuels 

long-term rural economic development 

and opportunities across rural America. 

The final rule that published February 

26, 2021 (86 FR 11603), included a 60- 

day comment period that ended on 

April 27, 2021. The final rule 

specifically requested comments on the 

speed used to determine eligibility. The 

Agency received comments from 73 

respondents. Respondents included 

industry associations, engineering firms, 

individuals, education providers, Tribes 

and Tribal organizations, economic 

development and municipal 

organizations, manufacturers, 

telecommunications providers and 

nonprofits. Thirty-five of the 

respondents provided constructive 

feedback on the regulation and the 

remaining 38 were supportive of the 

program. 

As requested in the rule, several of the 

constructive comments included 

suggestions to increase the standard of 

sufficient access from 10/1 Mbps to at 

least 25/3 Mbps. One respondent 

requested that RUS acknowledge that 

the current definition of broadband, 25/ 

3 Mbps, does not correspond with the 

requisite download and upload speeds 

for many businesses, education, and 

health care applications. Two 

recommended that RUS use a weighted 

priority scale to allow funds to go first 

to 10/1 areas, and then to areas up to 25/ 

3 or even higher. Two others requested 

that RUS prioritize areas with speeds 

slower than 25/3 Mbps and suggested 

that sufficient access should be defined 

at 100/20 Mbps. 

Agency response: As provided in 7 

CFR part 1940, ‘‘Sufficient Access to 

Broadband’’ is set forth in each funding 

announcement. No change to the 

rulemaking is necessary. Comments 

provided in response to the rule were 

taken into account for the funding 

announcement issued on October 25, 

2021, at 86 FR 58860. 

The RUS appreciates comments from 

interested parties. The Agency confirms 

the final rule without change. 

Andrew Berke, 

Administrator, Rural Utilities Service. 

[FR Doc. 2022–22677 Filed 10–18–22; 8:45 am] 

BILLING CODE 3410–15–P 


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