E8-21795. 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 ...

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 [phone].

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 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

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.

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:

(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.

§ 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 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 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 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.

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

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 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 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 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.