54270 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Rules and Regulations 

ELECTION ASSISTANCE COMMISSION 

11 CFR Parts 9409, 9411, and 9420 

RIN 3265–AA01 

Testimony by Commission Employees 

Relating to Official Information and 

Production of Official Records in Legal 

Proceedings, Standards of Conduct for 

Commission Employees, and 

Nondiscrimination on the Basis of 

Handicap in Programs or Activities 

Conducted by the U.S. Election 

Assistance Commission 

AGENCY: United States Election 

Assistance Commission (EAC). 

ACTION: Final rule. 

SUMMARY: The U.S. Election Assistance 

Commission is promulgating 

administrative regulations to implement 

standards of conduct for Commission 

employees, requirements on testimony 

by Commission employees and 

production of Commission records in 

legal proceedings, and requirements for 

nondiscrimination on the basis of 

handicap in programs or activities 

conducted by the Commission. 

DATES: The rules promulgated today 

become effective September 18, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Tamar Nedzar, Attorney, U.S. Election 

Assistance Commission, 1225 New York 

Avenue, NW., Suite 1100, Washington, 

DC 20005. Telephone (202) 566–3100. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

The following is an outline of the 

preamble. 

I. Legal Basis for the Rulemaking 

II. Discussion of the Rulemaking 

III. Rulemaking Analyses and Notices 

I. Legal Basis for the Rulemaking 

This rulemaking action is taken to 

establish administrative requirements 

necessary for the proper functioning of 

the Election Assistance Commission 

(EAC). The Office of Government Ethics, 

established by the Ethics in Government 

Act of 1978, which is responsible for 

exercising leadership in the federal 

government for the prevention of 

conflicts of interest and the fostering of 

high ethical standards for government 

employees, has promulgated regulations 

on the standards of conduct for federal 

government employees. The EAC, 

pursuant to 1 CFR 21.21, is cross 

referencing the Office of Government 

Ethics regulations in its own regulations 

in part 9411 of 11 CFR Chapter II to 

ensure that all employees of the EAC are 

aware of the standards of ethical 

conduct applicable to them as 

employees of the Commission. 

Similarly, the Office of Personnel 

Management, under the Hatch Act 

Reform Amendments of 1993, has 

promulgated regulations defining what 

political activities are permitted and 

prohibited for federal government 

employees. The EAC, pursuant to 1 CFR 

21.21, is cross referencing the Office of 

Personnel Management regulations in 

its own regulations in part 9411 of 11 

CFR Chapter II to ensure that all 

employees of the EAC are aware of the 

political activities permitted and 

prohibited to them as employees of the 

Commission. 

The U.S. Supreme Court, in United 

States ex rel Touhy v. Ragen, 340 U.S. 

462 (1951), established limits on the 

power of legal tribunals to require 

agencies of the federal government to 

produce official records or allow their 

employees to provide testimony relating 

to official information in connection 

with legal proceedings in which the 

federal agency is not a named party. The 

EAC is adopting regulations (sometimes 

referred to as ‘‘Touhy’’ procedures) in 

part 9409 of 11 CFR Chapter II to 

provide guidance for the internal 

operations of the Commission and to 

inform the public about Commission 

procedures concerning the service of 

process and responses to demands or 

requests for the production of official 

Commission documents or the 

testimony of Commission employees in 

proceedings in which the Commission 

is not a named party. 

Finally, in the Rehabilitation, 

Comprehensive Services, and 

Developmental Disabilities Act of 1978, 

29 U.S.C. 794, Congress provided that 

each federal agency shall promulgate 

such regulations as may be necessary to 

carry out the provisions of the act 

relating to nondiscrimination under 

federal grants and programs. The EAC is 

adopting regulations in part 9420 of 11 

CFR Chapter II to prohibit 

discrimination on the basis of handicap 

in programs or activities conducted by 

the Commission. 

The EAC is promulgating 11 CFR 

parts 9409, 9411, and 9420 as final 

rules, under the exemption in 5 U.S.C. 

553(b)(3)(a) for interpretive rules, 

general statements of policy, and rules 

of agency organization, procedure, or 

practice. 

II. Discussion of the Rulemaking 

The United States Election Assistance 

Commission was created by Congress in 

the Help America Vote Act of 2002. The 

Commission’s primary function is to 

serve as a national clearinghouse and 

resource for information on and 

procedures for federal elections. The 

EAC conducts studies on election 

administration and makes those studies 

available to the public. The EAC also 

has adopted Voluntary Voting System 

Guidelines; administers a voting system 

testing and certification program; 

allocates election-related federal 

funding to the States; and carries out 

administrative duties under the 

National Voter Registration Act of 1993 

(the Motor Voter Law), including 

developing and maintaining a mail voter 

registration application form for 

elections to federal office. 

The rules being adopted address the 

internal administration of the EAC. By 

establishing standards of conduct for 

EAC personnel, rules governing when 

and how internal EAC documents may 

be released and EAC personnel may 

testify in legal matters in which the EAC 

is not a named party, and rules ensuring 

nondiscrimination on the basis of 

handicap in programs and activities 

conducted by the EAC, the Commission 

is satisfying the requirement in the 

Administrative Procedure Act, 5 U.S.C. 

552, that federal agencies publish in the 

Federal Register statements of the 

general course and method of how the 

agencies’ functions are channeled and 

determined. In addition, the EAC is 

either adopting by cross reference or 

modeling the three sets of regulatory 

requirements it is adopting on 

regulations addressing the same topics 

previously adopted by other federal 

agencies. Thus, many of the provisions 

in these rules are identical to or closely 

resemble the requirements adopted by 

other federal agencies, and as such 

represent regulatory ‘‘best practices’’ on 

the topics of standards of conduct, 

‘‘Touhy’’ procedures, and 

nondiscrimination on the basis of 

handicap. 

Although not required by law, the 

EAC posted these regulations on its Web 

site for the period from August 5, 2008 

to September 4, 2008. The EAC received 

no comments during that period. 

Accordingly, no changes were made to 

the regulations and they are being 

submitted to the Federal Register with 

the same content they contained when 

posted on the EAC’s Web site. 

III. Regulatory Analyses and Notices 

Regulatory Flexibility Act, as Amended 

The Regulatory Flexibility Act, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996 (5 U.S.C. 601 et seq.) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 


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other statute, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small government 

jurisdictions. Because the rules adopted 

today are administrative in nature and 

exempt from notice and comment 

rulemaking under § 553(b)(3)(a) of the 

Administrative Procedure Act, the EAC 

has concluded that a regulatory 

flexibility analysis is not required. 

Unfunded Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4; 2 U.S.C. 1532) 

requires each agency to assess the 

effects of its regulatory actions on State, 

local, and tribal governments and the 

private sector. Any agency promulgating 

a rule likely to result in a federal 

mandate requiring expenditures by a 

State, local, or tribal government or by 

the private sector of $120.7 million or 

more in any one year must prepare a 

written statement incorporating various 

assessments, estimates, and descriptions 

that are delineated in the Act. The EAC 

has determined that these 

administrative rules will create no 

unfunded mandates because they 

require no expenditures by a State, 

local, or tribal government and will not 

have an impact of $120.7 million or 

more in any one year. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as amended by 

SBREFA, provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. If the rule meets the 

definition of a major rule, as defined in 

SBREFA, the Comptroller General must 

provide a report to Congress and the 

rule may not take effect until 60 days 

after it has been published in the 

Federal Register. The current action is 

a Final Rule that does not meet the 

definition of a major rule. The EAC is 

submitting the necessary rule report to 

the Congress and the Comptroller 

General of the United States. 

National Environmental Policy Act 

The EAC analyzed these rules for the 

purpose of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321 et seq.) and determined that this 

action includes no circumstances that 

would have any effect on the quality of 

the environment. The rules pertain 

solely to the dissemination of 

information. Thus, these actions do not 

require an environmental assessment or 

an environmental impact statement. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires the EAC to 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. The regulations 

in part 9409 and part 9411 pertain 

solely to the internal administration of 

the EAC. These rules do not impose any 

reporting or recordkeeping 

requirements. The regulations in part 

9420 also pertain to internal 

administrative procedures, but may 

result in complaints filed with the EAC. 

The EAC anticipates that only a very 

small number of such complaints, if 

any, will be submitted on an annualized 

basis and the paperwork burden of such 

complaints will also be very small, 

amounting to fewer than eight hours per 

year. 

Executive Order 12630 (Taking of 

Private Property) 

These rules would not effect a taking 

of private property or otherwise have 

taking implications under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights.’’ 

Executive Order 12988 (Civil Justice 

Reform) 

These rules meet applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, ‘‘Civil Justice Reform,’’ to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Executive Order 13045 (Protection of 

Children) 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (April 23, 1997, 

62 FR 19885), requires that agencies 

issuing economically significant rules, 

which also concern an environmental 

health or safety risk that an agency has 

reason to believe may 

disproportionately affect children, must 

include an evaluation of the 

environmental health and safety effects 

of the regulation on children. Section 5 

of Executive Order 13045 directs an 

agency to submit for a covered 

regulatory action an evaluation of its 

environmental health or safety effects 

on children. The EAC has determined 

that these rules are not covered 

regulatory actions as defined under 

Executive Order 13045. This 

determination is based upon the fact 

that these rules do not constitute an 

environmental health risk or safety risk 

that would disproportionately affect 

children. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

federal programs and activities do not 

apply to this rulemaking. 

Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

The EAC has analyzed these rules 

under Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use.’’ These rules are 

not a significant energy action within 

the meaning of section 4(b) of the 

Executive Order. They involve internal 

procedures of the EAC, are not 

economically significant, and will not 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

List of Subjects 

11 CFR Part 9409 

Administrative practice and 

procedure, Courts, Government 

employees, Practice and procedure. 

11 CFR Part 9411 

Administrative practice and 

procedure, Conduct standards, Conflict 

of interest, Government employees. 

11 CFR Part 9420 

Administrative practice and 

procedure, Grants and administration, 

Individuals with disabilities, 

Nondiscrimination. 

■ In consideration of the foregoing, EAC 

amends title 11, Code of Federal 

Regulations, Chapter II, as follows: 

■ 1. Add part 9409 to read as follows: 

PART 9409—TESTIMONY BY 

COMMISSION EMPLOYEES RELATING 

TO OFFICIAL INFORMATION AND 

PRODUCTION OF OFFICIAL RECORDS 

IN LEGAL PROCEEDINGS 

Sec. 

9409.1 Purpose and scope. 

9409.2 Applicability. 

9409.3 Definitions. 

9409.4 Production or disclosure prohibited 

unless approved by appropriate 

Commission official. 

9409.5 Procedures for demand for 

testimony or production of documents. 

9409.6 Service of subpoenas or requests. 

9409.7 Factors to be considered by the 

General Counsel. 

9409.8 Processing demands or requests. 

9409.9 Final determination. 

9409.10 Restrictions that apply to 

testimony. 

9409.11 Restrictions that apply to released 

records. 

9409.12 Procedure when a decision is not 

made prior to the time a response is 

required. 


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9409.13 Procedures when the General 

Counsel directs an employee not to 

testify or provide documents. 

9409.14 Fees. 

9409.15 Penalties. 

Authority: 44 U.S.C. 3102. 

§ 9409.1 Purpose and scope. 

(a) This part sets forth policies and 

procedures you must follow when you 

submit a demand or request to an 

employee of the United States Election 

Assistance Commission to produce 

official records and information, or 

provide testimony relating to official 

information, in connection with a legal 

proceeding. You must comply with 

these requirements when you request 

the release or disclosure of official 

records and information. 

(b) The Commission intends these 

provisions to: 

(1) Promote economy and efficiency 

in its programs and operations; 

(2) Minimize the possibility of 

involving the Commission in 

controversial issues not related to its 

functions; 

(3) Maintain the Commission’s 

impartiality among private litigants 

where the Commission is not a named 

party; and 

(4) Protect sensitive, confidential 

information and the deliberative 

processes of the Commission. 

(c) In providing for these 

requirements, the Commission does not 

waive the sovereign immunity of the 

United States. 

(d) This part is intended only to 

provide guidance for the internal 

operations of the Commission and to 

inform the public about Commission 

procedures concerning the service of 

process and responses to demands or 

requests. The procedures specified in 

this part, or the failure of any 

Commission employee to follow the 

procedures specified in this part, are not 

intended to create, do not create, and 

may not be relied upon to create a right 

or benefit, substantive or procedural, 

enforceable at law by a party against the 

United States. 

§ 9409.2 Applicability. 

(a) This part applies to demands and 

requests to employees for factual or 

expert testimony relating to official 

information, or for production of official 

records or information, in legal 

proceedings in which the Commission 

is not a named party. However, it does 

not apply to: 

(1) Demands upon or requests for a 

Commission employee to testify as to 

facts or events that are unrelated to his 

or her official duties or that are 

unrelated to the functions of the 

Commission; 

(2) Demands upon or requests for a 

former Commission employee to testify 

as to matters in which the former 

employee was not directly or materially 

involved while at the Commission; 

(3) Requests for the release of records 

under the Freedom of Information Act, 

5 U.S.C. 552, or the Privacy Act, 5 

U.S.C. 552a; and 

(4) Congressional demands and 

requests for testimony or records. 

§ 9409.3 Definitions. 

As used in this part, the term— 

Commission means the U.S. Election 

Assistance Commission, established by 

the Help America Vote Act of 2002, 42 

U.S.C. 15301 et seq. 

Commission employee or employee 

means: 

(a) Any current or former officer or 

employee of the Commission; 

(b) Any other individual hired 

through contractual agreement by or on 

behalf of the Commission or who has 

performed or is performing services 

under an agreement for the Commission; 

and 

(c) Any individual who served or is 

serving in any consulting or advisory 

capacity to the Commission, whether 

formal or informal. 

(d) This definition does not include 

persons who are no longer employed by 

the Commission and who are retained or 

hired as expert witnesses or who agree 

to testify about general matters, matters 

available to the public, or matters with 

which they had no specific involvement 

or responsibility during their 

employment with the Commission. 

Demand means a subpoena, or an 

order or other command of a court or 

other competent authority, for the 

production, disclosure, or release of 

records or for the appearance and 

testimony of a Commission employee 

that is issued in a legal proceeding. 

General Counsel means the General 

Counsel of the Commission or a person 

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. 

Legal proceeding includes all phases of 

litigation. 

Records or official records and 

information means: 

(a) All documents and materials that 

are Commission records under the 

Freedom of Information Act (5 U.S.C. 

552); 

(b) All other documents and materials 

contained in files of the Commission; 

and 

(c) All other information or materials 

acquired by a Commission employee in 

the performance of his or her official 

duties or because of his or her official 

status. 

Request means any informal request, 

by whatever method, for the production 

of records and information or for 

testimony that has not been ordered by 

a court or other competent authority. 

Testimony means any written or oral 

statements, including depositions, 

answers to interrogatories, affidavits, 

declarations, interviews, and statements 

made by an individual in connection 

with a legal proceeding. 

§ 9409.4 Production or disclosure 

prohibited unless approved by appropriate 

Commission official. 

(a) No employee or former employee 

of the Commission shall, in response to 

a demand of a court or other authority, 

produce a record or disclose any 

information relating to any record of the 

Commission, or disclose any 

information or produce any material 

acquired as part of the performance of 

his official duties or because of his 

official status without the prior, written 

approval of the General Counsel of the 

Commission. 

(b) Any expert or opinion testimony 

by a former employee of the 

Commission shall be excepted from the 

requirements of this part where the 

testimony involves only general 

expertise gained while employed at the 

Commission. 

§ 9409.5 Procedures for demand for 

testimony or production of documents. 

(a) A demand directed to the 

Commission for the testimony of a 

Commission employee or for the 

production of documents shall be 

served in accordance with the Federal 

Rules of Civil Procedure, Federal Rules 

of Criminal Procedure, or applicable 

State procedures and shall be directed 

to the General Counsel, U.S. Election 

Assistance Commission, 1225 New York 

Avenue, NW., Suite 1100, Washington, 

DC 20005. Acceptance of a demand 

shall not constitute an admission or 

waiver with respect to jurisdiction, 

propriety of service, improper venue, or 

any other defense in law or equity 

available under the applicable laws or 

rules. 

(b) If a subpoena is served on the 

Commission or a Commission employee 

before submitting a written request and 

receiving a final determination, the 

Commission will oppose the subpoena 

on grounds that the request was not 

submitted in accordance with this part. 

(c) A written request must contain the 

following information: 


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(1) The caption of the legal 

proceeding, docket number, name and 

address of the court or other authority 

involved; and the procedural posture of 

the legal proceeding. 

(2) A copy of the complaint or 

equivalent document setting forth the 

assertions in the case and any other 

pleading or document necessary to 

show relevance; 

(3) A list of categories of records 

sought, a detailed description of how 

the information sought is relevant to the 

issues in the legal proceeding, and a 

specific description of the substance of 

the testimony or records sought; 

(4) A statement as to how the need for 

the information outweighs the need to 

maintain any confidentiality of the 

information and outweighs the burden 

on the Commission to produce the 

records or provide testimony; 

(5) A statement indicating that the 

information sought is not available from 

another source, from other persons or 

entities, or from the testimony of 

someone other than a Commission 

employee, such as a retained expert; 

(6) If testimony is requested, the 

intended use of the testimony, a general 

summary of the desired testimony, and 

a showing that no document could be 

provided and used in lieu of testimony; 

(7) A description of all prior 

decisions, orders, or pending motions in 

the case that bear upon the relevance of 

the requested records or testimony; 

(8) The name, address, and telephone 

number of counsel to each party in the 

case; 

(9) An estimate of the amount of time 

that the requester and other parties will 

require of each Commission employee 

for time spent by the employee to 

prepare for testimony, in travel, and for 

attendance in the legal proceeding; and 

(10) Whether travel by the 

Commission employee is required to 

provide the testimony; or, in lieu of inperson testimony, whether a deposition 

may be taken at the employee’s duty 

station. 

(d) The Commission reserves the right 

to require additional information to 

complete a request where appropriate. 

(e) A request should be submitted at 

least 45 days before the date that records 

or testimony is required. Requests 

submitted in less than 45 days before 

records or testimony is required must be 

accompanied by a written explanation 

stating the reasons for the late request 

and the reasons for expedited 

processing. 

(f) Failure to cooperate in good faith 

to enable the General Counsel to make 

an informed decision may serve as the 

basis for a determination not to comply 

with a request. 

(g) Notification to the General 

Counsel: 

(1) Employees shall immediately refer 

all inquiries and demands made on the 

Commission to the General Counsel. 

(2) An employee who receives a 

subpoena shall immediately forward the 

subpoena to the General Counsel. The 

General Counsel will determine the 

manner in which to respond to the 

subpoena. 

§ 9409.6 Service of subpoenas or 

requests. 

Subpoenas or requests for official 

records or information or testimony 

must be served on the General Counsel, 

U.S. Election Assistance Commission, 

1225 New York Avenue, NW., Suite 

1100, Washington, DC 20005. 

§ 9409.7 Factors to be considered by the 

General Counsel. 

The General Counsel, in his or her 

sole discretion, may grant an employee 

permission to testify on matters relating 

to official information, or produce 

official records and information, in 

response to a demand or request. 

Among the relevant factors that the 

General Counsel may consider in 

making this decision are whether: 

(a) The purposes of this part are met; 

(b) Allowing such testimony or 

production of records would be 

necessary to prevent a miscarriage of 

justice; 

(c) The Commission has an interest in 

the decision that may be rendered in the 

legal proceeding; 

(d) Allowing such testimony or 

production of records would assist or 

hinder the Commission in performing 

its statutory duties or use Commission 

resources where responding to the 

demand or request will interfere with 

the ability of Commission employees to 

do their work; 

(e) Allowing such testimony or 

production of records would be in the 

best interest of the Commission or the 

United States; 

(f) The records or testimony can be 

obtained from other sources; 

(g) The demand or request is unduly 

burdensome or otherwise inappropriate 

under the applicable rules of discovery 

or the rules of procedure governing the 

case or matter in which the demand or 

request arose; 

(h) Disclosure would violate a statute, 

Executive order or regulation; 

(i) Disclosure would reveal 

confidential, sensitive, or privileged 

information, trade secrets or similar, 

confidential commercial or financial 

information, otherwise protected 

information, or information which 

would otherwise be inappropriate for 

release; 

(j) Disclosure would impede or 

interfere with an ongoing law 

enforcement investigation or 

proceedings, or compromise 

constitutional rights; 

(k) Disclosure would result in the 

Commission appearing to favor one 

litigant over another; 

(l) Disclosure relates to documents 

that were produced by another agency; 

(m) A substantial Government interest 

is implicated; 

(n) The demand or request is within 

the authority of the party making it; and 

(o) The demand or request is 

sufficiently specific to be answered. 

§ 9409.8 Processing demands or requests. 

(a) After service of a demand or 

request to testify, the General Counsel 

will review the demand or request and, 

in accordance with the provisions of 

this part, determine whether, or under 

what conditions, to authorize the 

employee to testify on matters relating 

to official information and/or produce 

official records and information. 

(b) The Commission will process 

requests in the order in which they are 

received. Absent exigent or unusual 

circumstances, the Commission will 

respond within 45 days from the date a 

request is received. The time for 

response will depend upon the scope of 

the request. 

(c) The General Counsel may grant a 

waiver of any procedure described by 

this part where a waiver is considered 

necessary to promote a significant 

interest of the Commission or the 

United States or for other good cause. 

§ 9409.9 Final determination. 

The General Counsel will make the 

final determination on demands and 

requests to employees for production of 

official records and information or 

testimony. All final determinations are 

within the sole discretion of the General 

Counsel. The General Counsel will 

notify the requester and the court or 

other authority of the final 

determination, the reasons for the grant 

or denial of the demand or request, and 

any conditions that the General Counsel 

may impose on the release of records or 

information, or on the testimony of a 

Commission employee. 

§ 9409.10 Restrictions that apply to 

testimony. 

(a) The General Counsel may impose 

conditions or restrictions on the 

testimony of Commission employees 

including, for example, limiting the 

areas of testimony or requiring the 

requester and other parties to the legal 

proceeding to agree that the transcript of 

the testimony will be kept under seal or 


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will only be used or made available in 

the particular legal proceeding for 

which testimony was requested. The 

General Counsel may also require a 

copy of the transcript of testimony at the 

requester’s expense. 

(b) The Commission may offer the 

employee’s written declaration in lieu of 

testimony. 

(c) If authorized to testify under this 

part, an employee may testify as to facts 

within his or her personal knowledge, 

but, unless specifically authorized to do 

so by the General Counsel, the employee 

shall not: 

(1) Disclose confidential or privileged 

information; or 

(2) For a current Commission 

employee, testify as an expert or 

opinion witness with regard to any 

matter arising out of the employee’s 

official duties or the functions of the 

Commission unless testimony is being 

given on behalf of the United States. 

§ 9409.11 Restrictions that apply to 

released records. 

(a) The General Counsel may impose 

conditions or restrictions on the release 

of official records and information, 

including the requirement that parties to 

the proceeding obtain a protective order 

or execute a confidentiality agreement 

to limit access and any further 

disclosure. The terms of the protective 

order or confidentiality agreement must 

be acceptable to the General Counsel. In 

cases where protective orders or 

confidentiality agreements have already 

been executed, the Commission may 

condition the release of official records 

and information on an amendment to 

the existing protective order or 

confidentiality agreement. 

(b) If the General Counsel so 

determines, original Commission 

records may be presented for 

examination in response to a demand or 

request, but they are not to be presented 

as evidence or otherwise used in a 

manner by which they could lose their 

identity as official Commission records, 

nor are they to be marked or altered. In 

lieu of the original records, certified 

copies will be presented for evidentiary 

purposes (see 28 U.S.C. 1733). 

§ 9409.12 Procedure when a decision is 

not made prior to the time a response is 

required. 

If a response to a demand or request 

is required before the General Counsel’s 

decision is received, a U.S. attorney or 

a Commission attorney designated for 

the purpose shall appear with the 

employee or former employee of the 

Commission upon whom the demand 

has been made and shall furnish the 

court or other authority with a copy of 

the regulations contained in this part 

and inform the court or other authority 

that the demand has been, or is being, 

as the case may be, referred for the 

prompt consideration of the appropriate 

Commission official and shall 

respectfully request the court or 

authority to stay the demand pending 

receipt of the requested instructions. 

§ 9409.13 Procedures when the General 

Counsel directs an employee not to testify 

or provide documents. 

(a) If the General Counsel determines 

that an employee or former employee 

should not comply with a subpoena or 

other request for testimony or the 

production of documents, the General 

Counsel will so inform the employee 

and the party who submitted the 

subpoena or made the request. 

(b) If, despite the determination of the 

General Counsel that testimony should 

not be given and/or documents not be 

produced, a court of competent 

jurisdiction or other appropriate 

authority orders the employee or former 

employee to testify and/or produce 

documents; the employee shall notify 

the General Counsel of such order. 

(1) If the General Counsel determines 

that no further legal review of, or 

challenge to, the order will be sought, 

the employee or former employee shall 

comply with the order. 

(2) If the General Counsel determines 

to challenge the order, or that further 

legal review is necessary, the employee 

or former employee should not comply 

with the order. Where necessary, the 

employee should appear at the time and 

place set forth in the subpoena. If legal 

counsel cannot appear on behalf of the 

employee, the employee should produce 

a copy of this part and respectfully 

inform the legal tribunal that he/she has 

been advised by counsel not to provide 

the requested testimony and/or produce 

documents. If the legal tribunal rules 

that the subpoena must be complied 

with, the employee shall respectfully 

decline to comply, citing this section 

and United States ex rel. Touhy v. 

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

§ 9409.14 Fees. 

(a) Generally. The General Counsel 

may condition the production of records 

or appearance for testimony upon 

advance payment of a reasonable 

estimate of the costs to the Commission. 

(b) Fees for records. Requesters will 

reimburse the Commission for the actual 

costs of time and resources spent 

searching, reviewing and duplicating 

records. Fees for producing records will 

include fees for searching, reviewing, 

and duplicating records, costs of 

attorney time spent in reviewing the 

demand or request, and expenses 

generated by materials and equipment 

used to search for, produce, and copy 

the responsive information. The 

Commission will charge fees at the 

salary rate(s) (basic pay plus 16 percent) 

of employee time spent searching, 

reviewing, and duplicating records. Fees 

for duplication will be the same as those 

charged by the Commission for records 

disclosed under the Freedom of 

Information Act (11 CFR 9405), except 

that the Commission will charge for the 

actual costs for each page of duplication 

and will not provide the first 100 pages 

for free. 

(c) Witness fees. Fees for attendance 

by a witness will include fees, expenses, 

and allowances prescribed by the 

court’s rules. If no such fees are 

prescribed, witness fees will be 

determined based upon the rule of the 

Federal district court closest to the 

location where the witness will appear. 

The fees will include cost of time spent 

by the witness to prepare for testimony, 

in travel, and for attendance in the legal 

proceeding. 

(d) Payment of fees. Witness fees shall 

be paid for current Commission 

employees and any records certification 

fees by submitting to the General 

Counsel a check or money order for the 

appropriate amount made payable to the 

Treasury of the United States. In the 

case of testimony by former Commission 

employees, applicable fees shall be paid 

directly to the former employee in 

accordance with 28 U.S.C. 1821 or other 

applicable statutes. 

(e) Certification (authentication) of 

copies of records. The Commission may 

certify that records are true copies to 

facilitate their use as evidence. To 

obtain certification a request for 

certified copies shall be made to the 

Commission at least 45 days before the 

date the copies will be needed. The 

request should be sent to the General 

Counsel, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Washington, DC 20005. 

(f) Waiver or reduction of fees. The 

General Counsel, in his or her sole 

discretion, may, upon a showing of 

reasonable cause, waive or reduce any 

fees in connection with the testimony, 

production, or certification of records. 

§ 9409.15 Penalties. 

(a) An employee who discloses 

official records or information or gives 

testimony relating to official 

information, except as expressly 

authorized by the Commission or as 

ordered by a Federal court after the 

Commission has had the opportunity to 

be heard, may face the penalties 

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


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applicable laws. Former Commission 

employees are subject to the restrictions 

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

(b) A current Commission employee 

who testifies or produces official 

records and information in violation of 

this part shall be subject to disciplinary 

action in addition to any penalties 

assessed under paragraph (a) of this 

section. 

■ 2. Add part 9411 to read as follows: 

PART 9411—STANDARDS OF 

CONDUCT 

Authority: 5 CFR parts 2634 through 2638; 

5 CFR part 2641; 5 CFR parts 734 and 735. 

§ 9411.1 Cross-reference to executive 

branch-wide regulations. 

(a) Employees of the U.S. Election 

Assistance Commission are subject to 

the following standards of conduct and 

ethical requirements: 

(1) Executive Branch Financial 

Disclosure, Qualified Trusts, and 

Certificates of Divestiture as provided in 

5 CFR part 2634; 

(2) Standards of Ethical Conduct for 

Employees of the Executive Branch as 

provided in 5 CFR part 2635; 

(3) Limitations on Outside Earned 

Income, Employment and Affiliations 

for Certain Noncareer Employees as 

provided in 5 CFR part 2636; 

(4) Regulations Concerning PostEmployment Conflict of Interest as 

provided in 5 CFR part 2637; 

(5) Interpretation, Exemptions and 

Waiver Guidance Concerning 18 U.S.C. 

208 (Acts Affecting a Personal Financial 

Interest) as provided in 5 CFR part 2638; 

(6) Post-Employment Conflict of 

Interest Restrictions as provided in 5 

CFR part 2641; 

(7) Political Activities of Federal 

Employees as provided in 5 CFR part 

734; and 

(8) Employee Responsibilities and 

Conduct as provided in 5 CFR part 735. 

(b) For purposes of this part, 

employee shall have the definition 

given to it by each standard of conduct 

or ethical requirement in paragraph (a) 

of this section. 

■ 3. Add part 9420 to read as follows: 

PART 9420—NONDISCRIMINATION ON 

THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES 

CONDUCTED BY THE U.S. ELECTION 

ASSISTANCE COMMISSION 

Sec. 

9420.1 Purpose and scope. 

9420.2 Definitions. 

9420.3 General prohibitions against 

discrimination. 

9420.4 Program accessibility: 

Discrimination prohibited. 

9420.5 Program accessibility: Existing 

facilities. 

9420.6 Program accessibility: New 

construction and alterations. 

9420.7 Communications. 

9420.8 Compliance procedures. 

Authority: 29 U.S.C. 794. 

§ 9420.1 Purpose and scope. 

This part sets forth the 

nondiscrimination policy of the U.S. 

Election Assistance Commission to 

prohibit discrimination on the basis of 

handicap in programs or activities 

conducted by the Commission. 

§ 9420.2 Definitions. 

As used in this part, the term— 

Auxillary aids means services, 

including attendant services, or devices 

that enable handicapped persons, 

including those with impaired sensory, 

manual, or speaking skills to have an 

equal opportunity to participate in, and 

enjoy the benefits of, programs or 

activities conducted by the Commission. 

For example, auxiliary aids useful for 

disabled persons with impaired vision 

include readers, brailled materials, 

audio recordings, telecommunications 

devices and other similar services and 

devices. Auxiliary aids useful for 

disabled persons with impaired hearing 

include telephone handset amplifiers, 

telephones compatible with hearing 

aids, telecommunication devices for 

deaf persons (TDDs), interpreters, 

notetakers, written materials, and other 

similar services and devices. 

Commission means the U.S. Election 

Assistance Commission, established by 

the Help America Vote Act of 2002, 42 

U.S.C. 15301 et seq. 

Complete complaint means a written 

statement that contains the 

complainant’s name and address and 

describes the complaintant’s name and 

address and describes the Commission’s 

actions in sufficient detail to inform the 

Commission of the nature and date of 

the alleged violation of section 504, as 

defined in this part. It shall be signed by 

the complainant or by someone 

authorized to do so on his or her behalf. 

Complaints filed on behalf of classes or 

third parties shall describe or identify 

(by name if possible) the alleged victims 

of discrimination. 

Facility means all or any portion of 

buildings, structures, equipment, roads, 

walks, parking lots, rolling stock or 

other conveyances, or other real or 

personal property whether owned, 

leased or used on some other basis by 

the Commission. 

Handicapped person means any 

person who has a physical or mental 

impairment that substantially limits one 

or more major life activities, has a 

record of such impairment, or is 

regarded as having such impairment. As 

used in this definition, the phrase: 

(1) Physical or mental impairment 

includes: 

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one of more of 

the following body systems: 

Neurological; musculoskeletal; special 

sense organs; respiratory, including 

speech organs; cardiovascular; 

reproductive; digestive; genitourinary; 

hemic and lymphatic; skin; and 

endocrine; or 

(ii) Any mental or psychological 

disorder, such as mental retardation, 

organic brain syndrome, emotional or 

mental illness, and specific learning 

disabilities. The term ‘‘physical or 

mental impairment’’ includes, but is not 

limited to, such diseases and conditions 

as orthopedic; visual, speech, and 

hearing impairments; cerebral palsy; 

epilepsy; muscular dystrophy; multiple 

sclerosis; cancer; heart disease; diabetes; 

mental retardation; emotional illness; 

and drug addition and alcoholism. 

(2) Major life activities include 

functions such as caring for one’s self, 

performing manual tasks, walking, 

seeing, hearing, speaking, breathing, 

learning, and working. 

(3) Has a record of such an 

impairment means has a history of or 

has been misclassified as having a 

mental or physical impairment that 

substantially limits one or more major 

life activities. 

(4) Is regarded as having an 

impairment means: 

(i) Has a physical or mental 

impairment that does not substantially 

limit major life activities, but is treated 

by the Commission as constituting such 

a limitation; 

(ii) Has a physical or mental 

impairment that substantially limits 

major life activities only as a result of 

the attitudes of others toward the 

impairment; or 

(iii) Has none of the impairments 

defined in paragraph (1) of this 

definition, but is treated by the 

Commission as having an impairment. 

Qualified handicapped person means 

(1) with respect to any Commission 

program or activity under which a 

person is required to perform services or 

to achieve a level of accomplishment, a 

handicapped person who, with 

reasonable accommodation, meets the 

essential eligibility requirements and 

who can achieve the purpose of the 

program or activity; and 

(2) With respect to any other program 

or activity, a handicapped person who 

meets essential eligibility requirements 


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for participation in, or receipt of 

benefits from, that program or activity. 

Section 504 means section 504 of the 

Rehabilitation Act of 1973 (Pub. L. 93– 

112, 87 Stat. 394), as amended by the 

Rehabilitation Act Amendments of 1974 

(Pub. L. 93–516, 88 Stat. 1617) and the 

Rehabilitation, Comprehensive Services, 

and Developmental Disabilities Act of 

1978 (Pub. L. 95–602, 92 Stat. 2955). As 

used in this part, section 504 applies 

only to programs or activities conducted 

by the Commission and not to any 

federally assisted programs or activities 

that it administers. 

§ 9420.3 General prohibitions against 

discrimination. 

(a) No qualified handicapped person 

shall, on the basis of handicap, be 

excluded from participation in, be 

denied the benefits of, or otherwise be 

subjected to discrimination under any 

program or activity conducted by the 

Commission. 

(b)(1) The Commission, in providing 

any aid, benefit, or service, may not, 

directly or through contractual, 

licensing, or other arrangement, on the 

basis of handicap— 

(i) Deny a qualified handicapped 

person the opportunity to participate in 

or benefit from the aid, benefit, or 

service; 

(ii) Afford a qualified handicapped 

person an opportunity to participate in 

or benefit from the aid, benefit, or 

service that is not equal to that afforded 

others; 

(iii) Provide a qualified handicapped 

person with an aid, benefit, or service 

that is not as effective in affording equal 

opportunity to obtain the same result, to 

gain the same benefit, or to reach the 

same level of achievement as that 

provided to others; 

(iv) Provide different or separate aids, 

benefits, or services to handicapped 

persons or to any class of handicapped 

persons than is provided to others 

unless such action is necessary to 

provide qualified handicapped persons 

with aids, benefits, or services that are 

as effective as those provided to others; 

(v) Deny a qualified handicapped 

person the opportunity to participate as 

a member of planning or advisory 

boards; or 

(vi) Otherwise limit a qualified 

handicapped person in the enjoyment of 

any right, privilege, advantage, or 

opportunity enjoyed by others receiving 

aid, benefit, or service. 

(2) The Commission may not deny a 

qualified handicapped person the 

opportunity to participate in programs 

or activities that are not separate or 

different, despite the existence of 

permissibly separate or different 

programs or activities. 

(3) The Commission may not, directly 

or through contractual or other 

arrangements, utilize criteria or methods 

of administration the purpose or effect 

of which would— 

(i) Subject qualified handicapped 

persons to discrimination on the basis of 

handicap; or 

(ii) Defeat or substantially impair 

accomplishment of the objectives of a 

program or activity with respect to 

handicapped persons. 

(4) The Commission may not, in 

determining the site or location of a 

facility, make selections the purpose or 

effect of which would— 

(i) Exclude handicapped persons 

from, deny them the benefits of, or 

otherwise subject them to 

discrimination under any program or 

activity conducted by the Commission; 

or 

(ii) Defeat or substantially impair the 

accomplishment of objectives of a 

program or activity with respect to 

handicapped persons. 

(5) The Commission, in selection of 

procurement contractors, may not use 

criteria that subject qualified 

handicapped persons to discrimination 

on the basis of handicap. 

(6) The Commission may not 

administer a certification program in a 

manner that subjects qualified 

handicapped persons to discrimination 

on the basis of handicap, nor may the 

Commission establish requirements for 

the programs or activities of certified 

entities that subject qualified 

handicapped persons to discrimination 

on the basis of handicap. The programs 

or activities of entities that are certified 

by the Commission are not, themselves, 

covered by this part. 

(c) The exclusion of non-handicapped 

persons from the benefits of a program 

limited by Federal statute or Executive 

Order to handicapped persons or the 

exclusion of a specific class of 

handicapped persons from a program 

limited by Federal statute or Executive 

Order to a different class of 

handicapped persons is not prohibited 

by this part. 

(d) The Commission will administer 

programs and activities in the most 

integrated setting appropriate to the 

needs of qualified handicapped persons. 

§ 9420.4 Program accessibility: 

Discrimination prohibited. 

Except as otherwise provided in 11 

CFR 9420.6 and 11 CFR 9420.7, no 

qualified handicapped person shall be 

denied the benefits of, be excluded from 

participation in, or otherwise be 

subjected to discrimination under any 

program or activity conducted by the 

Commission because its facilities are 

inaccessible to or unusable by 

handicapped persons. 

§ 9420.5 Program accessibility: Existing 

facilities. 

(a) General. The Commission will 

operate each program or activity so that 

the program or activity, when viewed in 

its entirety, is readily accessible to and 

usable by handicapped persons. This 

paragraph does not— 

(1) Necessarily require the 

Commission to make each of its existing 

facilities accessible to and usable by 

handicapped persons; 

(2) Require the Commission to take 

any action that it can demonstrate 

would result in a fundamental alteration 

in the nature of a program or activity or 

in undue financial and administrative 

burdens. The Commission has the 

burden of proving that compliance with 

11 CFR 9420.6(a) would result in such 

alterations or burdens. The decision that 

compliance would result in such 

alteration or burdens must be made by 

the Commission after considering all 

agency resources available for use in the 

funding and operation of the conducted 

program or activity, and must be 

accompanied by a written statement of 

the reasons for reaching that conclusion. 

If an action would result in such an 

alteration or such burdens, the 

Commission will take any other action 

that would not result in such an 

alteration or such a burden but would 

nevertheless ensure that handicapped 

person receive the benefits and services 

of the program or activity. 

(b) Methods. The Commission may 

comply with the requirements of this 

section through such means as redesign 

of equipment, reassignment of services 

to accessible buildings, assignment of 

aides to beneficiaries, home visits, 

delivery of services at alternate 

accessible sites, alteration of existing 

facilities and construction of new 

facilities, use of accessible rolling stock, 

or any other methods that result in 

making its programs or activities readily 

accessible to and usable by handicapped 

persons. The Commission is not 

required to make structural changes in 

existing facilities where other methods 

are effective in achieving compliance 

with this section. The Commission, in 

making alterations to existing buildings 

will meet accessibility requirements to 

the extent compelled by the 

Architectural Barriers Act of 1968, as 

amended, 42 U.S.C. 4151–4157, and any 

regulations implementing it. In choosing 

among available methods for meeting 

the requirements of this section, the 

Commission will give priority to those 


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methods that offer programs and 

activities to qualified handicapped 

persons in the most integrated setting 

appropriate. 

(c) Time period for compliance. The 

Commission shall comply with the 

obligations established under this 

section within sixty days of the effective 

date of this part except that where 

structural changes in facilities are 

undertaken, such changes will be made 

within three years of the effective date 

of this part, but in any event as 

expeditiously as possible. 

(d) Transition plan. In the event that 

structural changes to facilities will be 

undertaken to achieve program 

accessibility, the Commission will 

develop, within six months of the 

effective date of this part, a transition 

plan setting forth the steps necessary to 

complete such changes. The plan will 

be developed with the assistance of 

interested persons, including 

handicapped persons and organizations 

representing handicapped persons. A 

copy of the transition plan will be made 

available for public inspection. The plan 

will, at a minimum— 

(1) Identify physical obstacles in the 

Commission’s facilities that limit the 

accessibility of its programs or activities 

to handicapped persons; 

(2) Describe in detail the methods that 

will be used to make the facilities 

accessible; 

(3) Specify the schedule for taking the 

steps necessary to achieve compliance 

with this section and, if the time period 

of the transition plan is longer than one 

year, identify steps that will be taken 

during each year of the transition 

period; 

(4) Indicate the official responsible for 

implementation of the plan; and 

(5) Identify the person or groups with 

whose assistance the plan was prepared. 

§ 9420.6 Program accessibility: New 

construction and alterations. 

Each building or part of a building 

that is constructed or altered by, on 

behalf of, or for the use of the 

Commission shall be designed, 

constructed, or altered so as to be 

readily accessible to and usable by 

handicapped persons. The definitions, 

requirements, and standards of the 

Architectural Barriers Act, 42 U.S.C. 

4151–4157 apply to buildings covered 

by this section. 

§ 9420.7 Communications. 

(a) The Commission will take 

appropriate steps to ensure effective 

communication with applicants, 

participants, personnel of other Federal 

entities, and members of the public. 

(1) The commission will furnish 

appropriate auxiliary aids when 

necessary to afford a handicapped 

person an equal opportunity to 

participate in, and enjoy the benefits of, 

a program or activity conducted by the 

Commission. 

(i) In determining what type of 

auxiliary aid is necessary, the 

Commission will give primary 

consideration to the requests of the 

handicapped person. 

(ii) Where the Commission 

communicates with applicants and 

beneficiaries by telephone, 

telecommunication devices for deaf 

persons (TDDs) or equally effective 

telecommunication systems will be 

used. 

(b) The Commission will ensure that 

interested persons, including persons 

with impaired vision or hearing can 

obtain information as to the existence 

and location of accessible services, 

activities, and facilities. 

(c) To the extent that the Commission 

controls signage at its facilities, the 

Commission will provide signage at a 

primary entrance to each of its 

inaccessible facilities, directing users to 

a location at which they can obtain 

information about accessible facilities. 

To the extent practicable, the 

international symbol for accessibility 

shall be used at each primary entrance 

of an accessible facility. 

(d) The Commission will take 

appropriate steps to provide 

handicapped persons with information 

regarding their section 504 rights under 

the Commission’s programs or activities. 

(e) This section does not require the 

Commission to take any action that it 

can demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity or in undue 

financial and administrative burdens. 

The Commission has the burden of 

proving that compliance with this 

section would result in such alterations 

or burdens. The decision that 

compliance would result in such 

alteration or burdens must be made by 

the Commission after considering all 

agency resources available for use in the 

funding and operation of the conducted 

program or activity, and must be 

accompanied by a written statement of 

the reasons for reaching that conclusion. 

If an action required to comply with this 

section would result in such an 

alteration or such burdens, the 

Commission will take any other action 

that would not result in such an 

alteration or such a burden but would 

nevertheless ensure that, to the 

maximum extent possible, handicapped 

persons receive the benefits and services 

of the program or activity. 

§ 9420.8 Compliance procedures. 

(a) Except as provided in paragraph 

(b) of this section, this section applies 

to all allegations of discrimination on 

the basis of handicap in programs or 

activities conducted by the Commission. 

(b) The Commission will process 

complaints alleging violations of section 

504 with respect to employment 

according to the procedures established 

in 29 CFR 1614.101 et seq. pursuant to 

section 501 of the Rehabilitation Act of 

1973 (29 U.S.C. 791). 

(c) Responsibility for implementation 

and operation of this section shall be 

vested in the Rehabilitation Act Officer. 

(d)(1) Requirement to file complaint 

with the Rehabilitation Act Officer. 

(i) Any person who believes that he or 

she or any specific class of persons of 

which he or she is a member has been 

subjected to discrimination prohibited 

by this part may file a complaint with 

the Rehabilitation Act Officer. 

(ii) Any person who believes that a 

denial of his or her services will result 

or has resulted in discrimination 

prohibited by this part may file a 

complaint with the Rehabilitation Act 

Officer. 

(2) Timing of filing of complaint. All 

complete complaints must be filed 

within 180 days of the alleged act of 

discrimination. The Commission may 

extend this period for good cause. 

(3) Complaints filed under this part 

shall be addressed to the Rehabilitation 

Act Officer, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Suite 1100, Washington, DC 

20005. 

(e) The Commission will notify the 

Architectural and Transportation 

Barriers Compliance Board upon receipt 

of any complaint alleging that a building 

or facility that is subject to the 

Architectural Barriers Act of 1968, as 

amended (42 U.S.C. 4151–4157), or 

section 502 of the Rehabilitation Act of 

1973, as amended (29 U.S.C. 792), are 

not readily accessible and usable to 

handicapped persons. 

(f) Review of complaints. 

(1) The Commission will accept and 

investigate a complete complaint that is 

filed in accordance with paragraph (d) 

of this section and over which it has 

jurisdiction. The Rehabilitation Act 

Officer will notify the complainant and 

the respondent of receipt and 

acceptance of the complaint. 

(2) If the Rehabilitation Act Officer 

receives a complaint that is not 

complete, he or she will notify the 

complainant within 30 days of receipt of 

the incomplete complaint, that 

additional information is needed. If the 

complainant fails to complete the 

complaint within 30 days of receipt of 


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54278 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Rules and Regulations 

this notice, the Rehabilitation Act 

Officer will dismiss the complaint 

without prejudice. 

(3) If the Rehabilitation Act Officer 

receives a complaint over which the 

Commission does not have jurisdiction, 

the Commission will promptly notify 

the complainant and will make 

reasonable efforts to refer the complaint 

to the appropriate government entity. 

(g) Within 180 days of receipt of a 

complete complaint for which it has 

jurisdiction, the Commission will notify 

the complainant of the results of the 

investigation in a letter containing— 

(1) Findings of fact and conclusions of 

law. 

(2) A description of a remedy for each 

violation found; and 

(3) A notice of the right to appeal. 

(h) Appeals of the findings of fact and 

conclusions of law or remedies must be 

filed by the complainant within 90 days 

of receipt from the Commission of a 

letter required by § 9420.9(g). The 

Commission may extend this time for 

good cause. 

(i) Timely appeals to the Commission 

shall be addressed to the Rehabilitation 

Act Officer, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Suite 1100, Washington, DC 

20005. 

(j) The Commission will notify the 

complainant of the results of the appeal 

within 60 days of the receipt of the 

request. If the Commission determines it 

needs additional information from the 

complainant, it shall have 60 days from 

the date it receives the additional 

information to make its determination 

on the appeal. 

(k) The Commission may extend the 

time limits in paragraphs (g) and (j) of 

this section for good cause. 

(l) The Commission may delegate its 

authority for conducting complaint 

investigations to other Federal agencies, 

except that the authority for making the 

final determination may not be 

delegated. 

Thomas R. Wilkey, 

Executive Director, U.S. Election Assistance 

Commission. 

[FR Doc. E8–21795 Filed 9–17–08; 8:45 am] 

BILLING CODE 6820–KF–P 


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