[Federal Register: September 18, 2008 (Volume 73, Number 182)]
[Rules and Regulations]
[Page 54269-54278]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se08-16]
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Part V
Election Assistance Commission
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11 CFR Parts 9409, 9411, and 9420
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; Final Rule
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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.
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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
[[Page 54271]]
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 Sec. 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.
0
In consideration of the foregoing, EAC amends title 11, Code of Federal
Regulations, Chapter II, as follows:
0
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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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:
[[Page 54273]]
(1) The caption of the legal proceeding, docket number, name and
address of the court or other authority involved; and the procedural
posture of the legal proceeding.
(2) A copy of the complaint or equivalent document setting forth
the assertions in the case and any other pleading or document necessary
to show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the
testimony or records sought;
(4) A statement as to how the need for the information outweighs
the need to maintain any confidentiality of the information and
outweighs the burden on the Commission to produce the records or
provide testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than a Commission employee, such as a
retained expert;
(6) If testimony is requested, the intended use of the testimony, a
general summary of the desired testimony, and a showing that no
document could be provided and used in lieu of testimony;
(7) A description of all prior decisions, orders, or pending
motions in the case that bear upon the relevance of the requested
records or testimony;
(8) The name, address, and telephone number of counsel to each
party in the case;
(9) An estimate of the amount of time that the requester and other
parties will require of each Commission employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding; and
(10) Whether travel by the Commission employee is required to
provide the testimony; or, in lieu of in-person testimony, whether a
deposition may be taken at the employee's duty station.
(d) The Commission reserves the right to require additional
information to complete a request where appropriate.
(e) A request should be submitted at least 45 days before the date
that records or testimony is required. Requests submitted in less than
45 days before records or testimony is required must be accompanied by
a written explanation stating the reasons for the late request and the
reasons for expedited processing.
(f) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with a request.
(g) Notification to the General Counsel:
(1) Employees shall immediately refer all inquiries and demands
made on the Commission to the General Counsel.
(2) An employee who receives a subpoena shall immediately forward
the subpoena to the General Counsel. The General Counsel will determine
the manner in which to respond to the subpoena.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 54274]]
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.
Sec. 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).
Sec. 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.
Sec. 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).
Sec. 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.
Sec. 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
[[Page 54275]]
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.
0
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.
Sec. 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 Post-Employment Conflict of Interest as
provided in 5 CFR part 2637;
(5) Interpretation, Exemptions and Waiver Guidance Concerning 18
U.S.C. 208 (Acts Affecting a Personal Financial Interest) as provided
in 5 CFR part 2638;
(6) Post-Employment Conflict of Interest Restrictions as provided
in 5 CFR part 2641;
(7) Political Activities of Federal Employees as provided in 5 CFR
part 734; and
(8) Employee Responsibilities and Conduct as provided in 5 CFR part
735.
(b) For purposes of this part, employee shall have the definition
given to it by each standard of conduct or ethical requirement in
paragraph (a) of this section.
0
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.
Sec. 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.
Sec. 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
[[Page 54276]]
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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 54277]]
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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 54278]]
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 Sec. 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