[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
22
Parts 1 to 299
Revised as of April 1, 2004
Foreign Relations
________________________
Containing a codification of documents of general
applicability and future effect
As of April 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area
(202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 22:
Chapter I--Department of State 3
Chapter II--Agency for International Development 767
Finding Aids:
Material Approved for Incorporation by Reference........ 1073
Table of CFR Titles and Chapters........................ 1075
Alphabetical List of Agencies Appearing in the CFR...... 1093
List of CFR Sections Affected........................... 1103
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 22 CFR 1.1 refers
to title 22, part 1,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 2004), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll free,
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2250, 24 hours a day. For payment by check,
write to the Superintendent of Documents, Attn: New Orders, P.O. Box
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, The United States
Government Manual, the Federal Register, Public Laws, Public Papers,
Weekly Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format at www.gpoaccess.gov/
nara. For more information, contact Electronic Information Dissemination
Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-
293-6498 (toll-free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2004.
[[Page ix]]
THIS TITLE
Title 22--Foreign Relations is composed of two volumes. The first
volume, Parts 1 to 299 contains Chapter I--Department of State
regulations and Chapter II--Agency for International Development
regulations. The second volume, Part 300 to End is composed of Chapter
III--Peace Corps; Chapter IV--International Joint Commission, United
States and Canada; Chapter V--Broadcasting Board of Governors; Chapter
VII--Overseas Private Investment Corporation; Chapter IX--Foreign
Service Grievance Board Regulations; Chapter X--Inter-American
Foundation; Chapter XI--International Boundary and Water Commission,
United States and Mexico, United States Section; Chapter XII--United
States International Development Cooperation Agency; Chapter XIV--
Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority; and
the Foreign Service Impasse Disputes Panel; Chapter XV--African
Development Foundation; Chapter XVI--Japan-United States Friendship
Commission; and Chapter XVII--United States Institute of Peace. The
contents of these volumes represent all current regulations codified
under this title of the CFR as of April 1, 2004.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 22--FOREIGN RELATIONS
(This book contains parts 1 to 299)
--------------------------------------------------------------------
Part
chapter i--Department of State.............................. 1
chapter ii--Agency for International Development............ 200
Cross References: U.S. Customs Service, Department of the Treasury: See
Customs Duties, 19 CFR chapter I.
International Trade Administration, Department of Commerce: See
Commerce and Foreign Trade, 15 CFR chapter III.
Foreign-Trade Zones Board, Department of Commerce: See Commerce and
Foreign Trade, 15 CFR chapter IV.
Immigration and Naturalization Service, Department of Justice: See
Aliens and Nationality, 8 CFR chapter I.
Taxation pursuant to treaties: See Internal Revenue, 26 CFR 1.894-1.
[[Page 3]]
CHAPTER I--DEPARTMENT OF STATE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL
Part Page
1 Insignia of rank............................ 9
2 Protection of foreign dignitaries and other
official personnel...................... 9
3 Gifts and decorations from foreign
governments............................. 11
3a Acceptance of employment from foreign
governments by members of the uniformed
services................................ 17
4 Notification of foreign official status..... 19
5 Organization................................ 20
7 Board of Appellate Review................... 21
8 Advisory committee management............... 26
9 Security information regulations............ 31
9a Security information regulations applicable
to certain international energy
programs; related material.............. 42
9b Regulations governing Department of State
press building passes................... 44
SUBCHAPTER B--PERSONNEL
10 Employee responsibilities and conduct....... 49
11 Appointment of Foreign Service officers..... 66
12 Complaints against employees by alleged
creditors............................... 84
13 Personnel................................... 84
16 Foreign Service grievance system............ 85
17 Overpayments to annuitants under the Foreign
Service retirement and disability system 93
18 Regulations concerning post employment
conflict of interest.................... 95
19 Benefits for spouses and former spouses of
participants in the Foreign Service
retirement and disability system........ 99
20 Benefits for certain former spouses......... 120
[[Page 4]]
21 Indemnification of employees................ 124
SUBCHAPTER C--FEES AND FUNDS
22 Schedule of fees for consular services--
Department of State and Foreign Service. 126
23 Finance and accounting...................... 131
SUBCHAPTER D--CLAIMS AND STOLEN PROPERTY
33 Fishermen's Protective Act Guaranty Fund
procedures under section 7.............. 133
34 Collection of debts......................... 137
35 Program fraud civil remedies................ 145
SUBCHAPTER E--VISAS
40 Regulations pertaining to both nonimmigrants
and immigrants under the Immigration and
Nationality Act, as amended............. 161
41 Visas: Documentation of nonimmigrants under
the Immigration and Nationality Act, as
amended................................. 174
42 Visas: Documentation of immigrants under the
Immigration and Nationality Act, as
amended................................. 218
43-45 [Reserved]
46 Control of aliens departing from the United
States.................................. 242
47 [Reserved]
SUBCHAPTER F--NATIONALITY AND PASSPORTS
50 Nationality procedures...................... 248
51 Passports................................... 253
52 Marriages................................... 268
53 Passport requirement and exceptions......... 268
SUBCHAPTER G--PUBLIC DIPLOMACY AND EXCHANGES
61 World-wide free flow of audio-visual
materials............................... 270
62 Exchange visitor program.................... 273
63 Payments to and on behalf of participants in
the international educational and
cultural exchange program............... 323
64 Participation by Federal employees in
cultural exchange programs of foreign
countries............................... 328
65 Foreign students............................ 330
66 Availability of the records of the National
Endowment for Democracy................. 331
[[Page 5]]
67 Organization of the National Endowment for
Democracy............................... 339
SUBCHAPTER H--PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND
ESTATES
71 Protection and welfare of citizens and their
property................................ 344
72 Deaths and estates.......................... 347
SUBCHAPTER I--SHIPPING AND SEAMEN
89 Prohibitions on longshore work by U.S.
nationals............................... 363
SUBCHAPTER J--LEGAL AND RELATED SERVICES
91 Import controls............................. 372
92 Notarial and related services............... 372
93 Service on foreign state.................... 401
94 International child abduction............... 403
95 Implementation of torture convention in
extradition cases....................... 405
SUBCHAPTER K--ECONOMIC, COMMERCIAL AND CIVIL AVIATION FUNCTIONS
101 Economic and commercial functions........... 407
102 Civil aviation.............................. 408
103 Regulations for implementation of the
Chemical Weapons Convention and the
Chemical Weapons Convention
Implementation Act of 1998 on the taking
of samples and on enforcement of
requirements concerning recordkeeping
and inspections......................... 413
SUBCHAPTER L [RESERVED]
SUBCHAPTER M--INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
120 Purpose and definitions..................... 421
121 The United States munitions list............ 429
122 Registration of manufacturers and exporters. 451
123 Licenses for the export of defense articles. 453
124 Agreements, off-shore procurement and other
defense services........................ 468
125 Licenses for the export of technical data
and classified defense articles......... 479
126 General policies and provisions............. 484
127 Violations and penalties.................... 499
128 Administrative procedures................... 505
129 Registration and licensing of brokers....... 511
[[Page 6]]
130 Political contributions, fees and
commissions............................. 515
SUBCHAPTER N--MISCELLANEOUS
131 Certificates of authentication.............. 521
132 Books, maps, newspapers, etc................ 521
133 Governmentwide requirements for drug-free
workplace (financial assistance)........ 521
134 Equal Access to Justice Act; implementation. 527
135 Uniform administrative requirements for
grants and cooperative agreements to
state and local governments............. 533
136 Personal property disposition at posts
abroad.................................. 560
137 Governmentwide debarment and suspension
(nonprocurement)........................ 563
138 New restrictions on lobbying................ 586
139 Irish peace process cultural and training
program................................. 598
140 Prohibition on assistance to drug
traffickers............................. 602
SUBCHAPTER O--CIVIL RIGHTS
141 Nondiscrimination in federally-assisted
programs of the Department of State--
effectuation of title VI of the Civil
Rights Act of 1964...................... 609
142 Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 618
143 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 631
144 Enforcement of non-discrimination on the
basis of handicap in programs or
activities conducted by the United
States Department of State.............. 636
145 Grants and agreements with institutions of
higher education, hospitals, and other
non-profit organizations................ 642
[[Page 7]]
146 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 670
SUBCHAPTER P--DIPLOMATIC PRIVILEGES AND IMMUNITIES
151 Compulsory liability insurance for
diplomatic missions and personnel....... 687
SUBCHAPTER Q--ENVIRONMENTAL PROTECTION
161 Regulations for implementation of the
National Environmental Policy Act (NEPA) 690
SUBCHAPTER R--ACCESS TO INFORMATION
171 Availability of information and records to
the public.............................. 703
172 Service of process; production or disclosure
of official information in response to
court orders, subpoenas, notices of
depositions, requests for admissions,
interrogatories, or similar requests or
demands in connection with Federal or
State litigation; expert testimony...... 726
SUBCHAPTER S--INTERNATIONAL AGREEMENTS
181 Coordination, reporting and publication of
international agreements................ 731
SUBCHAPTER T--HOSTAGE RELIEF
191 Hostage relief assistance................... 738
192 Victims of terrorism compensation........... 745
193 Benefits for hostages in Iraq, Kuwait, or
Lebanon................................. 756
SUBCHAPTER U--INTERNATIONAL COMMERCIAL ARBITRATION
194 Inter-American Commercial Arbitration
Commission rules of procedure........... 758
196 Thomas R. Pickering Foreign Affairs/Graduate
Foreign Affairs Fellowship Program...... 765
[[Page 9]]
SUBCHAPTER A_GENERAL
PART 1_INSIGNIA OF RANK--Table of Contents
Sec.
1.1 Office of the Secretary of State.
1.2 Office of the Deputy Secretary of State.
1.3 Office of the Under Secretaries of State.
Authority: Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658.
Sec. 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State
shall be as follows: On a blue rectangular field a white disk bearing
the official coat of arms of the United States adopted by the act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of blue and white to be added. The sizes to be in accordance with
military and naval customs.
[22 FR 10788, Dec. 27, 1957]
Sec. 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary
of State shall be as follows: On a white rectangular field a blue disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a five-
pointed star with one point upward. The colors and automobile flag to be
the same design, adding a blue fringe. For the colors a cord and tassel
of white in accordance with military and naval customs.
[38 FR 30258, Nov. 2, 1973]
Sec. 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries
of State shall be as follows: On a red rectangular field a white disk
bearing the official coat of arms of the United States adopted by act of
June 20, 1782, in proper colors. In each of the four corners a white
five-pointed star with one point upward. The colors and automobile flag
to be the same design, adding a white fringe. For the colors a cord and
tassel of white and red to be added. The sizes to be in accordance with
military and naval customs.
[38 FR 30258, Nov. 2, 1973]
PART 2_PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL--Table of Contents
Sec.
2.1 Designation of personnel to carry firearms and exercise appropriate
power of arrest.
2.2 Purpose.
2.3 Notification of foreign officials.
2.4 Designation of official guests.
2.5 Records.
Sec. 2.1 Designation of personnel to carry firearms and exercise
appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is
authorized to designate certain employees of the Department of State and
the Foreign Service, as well as employees of other departments and
agencies detailed to and under the supervision and control of the
Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when
engaged in the performance of the duties prescribed in section (1) of
the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be
so designated unless he has either qualified in the use of firearms in
accordance with standards established by the Deputy Assistant Secretary
of State for Security, or in accordance with standards established by
the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in
the performance of duties prescribed in section (1) of the act of June
28, 1955, 69 Stat. 188, as amended, to arrest without warrant and
deliver into custody any person violating the provisions of section 111
or 112 of title 18, United States Code, in their presence or if they
have reasonable grounds to believe that the person to be arrested has
[[Page 10]]
committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to an individual who has been
designated by the President to serve as Secretary of State, prior to his
appointment, or to a departing Secretary of State. In providing such
protection, they are authorized to exercise the authorities described in
paragraphs (a) (1) and (2) of section. Such protection shall be for the
period or periods determined necessary by the Under Secretary of State
for Management, except that in the case of a departing Secretary of
State, the period of protection under this paragraph shall in no event
exceed 30 calendar days from the date of termination of that
individual's incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that
it is necessary, persons designated under paragraph (a) of this section
shall be authorized to provide protection to a departing United States
Representative to the United Nations. In providing such protection, they
are authorized to exercise the authorities described in paragraphs (a)
(1) and (2) of this section. Such protection shall be for the period or
periods determined necessary by the Under Secretary of State for
Management, except that the period of protection under this paragraph
shall in no event exceed 30 calendar days from the date of termination
of that individual's incumbency as United States Representative to the
United Nations.
(Sec. 4, 63 Stat. 111, as amended, sec. 1, 69 Stat. 188; 22 U.S.C. 2658,
2666)
[29 FR 15571, Nov. 20, 1964, as amended at 47 FR 30480, July 14, 1982;
50 FR 14379, Apr. 12, 1985]
Sec. 2.2 Purpose.
Section 1116(b)(2) of title 18 of the United States Code, as added
by Pub. L. 92-539, An Act for the Protection of Foreign Officials and
Official Guests of the United States (86 Stat. 1071), defines the term
``foreign official'' for purposes of that Act as ``any person of a
foreign nationality who is duly notified to the United States as an
officer or employee of a foreign government or international
organization, and who is in the United States on official business, and
any member of his family whose presence in the United States is in
connection with the presence of such officer or employee.'' Section
1116(c)(4) of the same Act defines the term ``official guest'' for the
purposes of that Act as ``a citizen or national of a foreign country
present in the United States as an official guest of the Government of
the United States pursuant to designation as such by the Secretary of
State.'' It is the purpose of this regulation to specify the officer of
the Department of State who shall be responsible for receiving
notification of foreign officials under the Act and determining whether
persons are ``duly notified'' to the United States and who shall be
responsible for processing official guest designations by the Secretary
of State.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24817, Nov. 22, 1972]
Sec. 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section
1116(b)(2) of Title 18 of the United States Code shall be directed by
the foreign government or international organization concerned to the
Chief of Protocol, Department of State, Washington, DC 20520. For
persons normally accredited to the United States in diplomatic or
consular capacities and also for persons normally accredited to the
United Nations and other international organizations and in turn
notified to the Department of State, the procedure for placing a person
in the statutory category of being ``duly notified to the United
States'' shall be the current procedure for accreditation, with
notification in turn when applicable. The Chief of the Office of
Protocol will place on the roster of persons ``duly notified to the
United States'' the names of all persons currently accredited and, when
applicable, notified in turn, and will maintain the roster as part of
the official files of the Department of State adding to and deleting
therefrom as changes in accreditations occur.
[[Page 11]]
(b) For those persons not normally accredited, the Chief of Protocol
shall determine upon receipt of notification, by letter from the foreign
government or international organization concerned, whether any person
who is the subject of such a notification has been duly notified under
the Act. Any inquiries by law enforcement officers or other persons as
to whether a person has been duly notified shall be directed to the
Chief of Protocol. The determination of the Chief of Protocol that a
person has been duly notified is final.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
Sec. 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons
designated by the Secretary of State as official guests. Any inquiries
by law enforcement officers or other persons as to whether a person has
been so designated shall be directed to the Chief of Protocol. The
designation of a person as an official guest is final. Pursuant to
section 2658 of title 22 of the U.S.C., the authority of the Secretary
of State to perform the function of designation of official guests is
hereby delegated to the Chief of Protocol.
(22 U.S.C. 2658)
[45 FR 55716, Aug. 21, 1980]
Sec. 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files
of the Department of State a cumulative roster of all persons who have
been duly notified as foreign officials or designated as official guests
under this part. The roster will reflect the name, position,
nationality, and foreign government or international organization
concerned or purpose of visit as an official guest and reflect the date
the person was accorded recognition as being ``duly notified to the
United States'' or designated as an official guest and the date, if any,
of termination of such status.
(18 U.S.C. 1116(b)(2), 1116(c)(4); sec. 4 of the Act of May 26, 1949, as
amended (22 U.S.C. 2658))
[37 FR 24818, Nov. 22, 1972]
PART 3_GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS--Table of Contents
Sec.
3.1 Purpose.
3.2 Authority.
3.3 Definitions.
3.4 Restriction on acceptance of gifts and decorations.
3.5 Designation of officials and offices responsible for administration
of foreign gifts and decorations.
3.6 Procedure to be followed by employees in depositing gifts of more
than minimal value and reporting acceptance of travel or
travel expenses.
3.7 Decorations.
3.8 Approval of retention of gifts or decorations with employing agency
for official use.
3.9 Disposal of gifts and decorations which become the property of the
United States.
3.10 Enforcement.
3.11 Responsibility of chief of mission to inform host government of
restrictions on employees' receipt of gifts and decorations.
3.12 Exemption of grants and other foreign government assistance in
cultural exchange programs from coverage of foreign gifts and
decorations legislation.
Authority: Sec. 515(a)(1), 91 Stat. 862, amending 5 U.S.C. 7342
(1976).
Source: 45 FR 80819, Dec. 8, 1980, unless otherwise noted.
Sec. 3.1 Purpose.
These regulations provide basic standards for employees of the
Department of State, the United States International Development
Cooperation Agency (IDCA), the Agency for International Development
(AID), and the International Communication Agency (USICA), their spouses
(unless separated) and their dependents to accept and retain gifts and
decorations from foreign governments.
[[Page 12]]
Sec. 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of
1978 (91 Stat. 862-866), approved August 17, 1977, (hereafter referred
to as ``the Act'') amended section 7342 of title 5, U.S. Code (1976),
making substantial changes in the law relating to the acceptance and
retention of gifts and decorations from foreign governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe
regulations as necessary to carry out the new law.
Sec. 3.3 Definitions.
When used in this part, the following terms have the meanings
indicated:
(a) Employee means (1) an officer or employee of the Department,
AID, IDCA, or USICA, including an expert or consultant, however
appointed, and (2) a spouse (unless separated) or a dependent of such a
person, as defined in section 152 of the Internal Revenue Code of 1954
(26 U.S.C. 152).
(b) Foreign government means: (1) Any unit of foreign governmental
authority, including any foreign national, State, local, or municipal
government; (2) any international or multinational organization whose
membership is composed of any unit of foreign government as described in
paragraph (b)(1) of this section; (3) any agent or representative of any
such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a
decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia,
emblem or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the
time of acceptance of $100 or less, except that on January 1, 1981, and
at 3-year intervals thereafter, ``minimal value'' is to be redefined in
regulations prescribed by the Administrator of General Services, in
consultation with the Secretary of State, to reflect changes in the
consumer price index for the immediately preceding 3-year period.
Sec. 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise
encouraging the tender of a gift or decoration from a foreign
government. An employee is also prohibited from accepting a gift or
decoration from a foreign government, except in accordance with these
regulations.
(b) An employee may accept and retain a gift of minimal value
tendered and received as a souvenir or mark of courtesy, subject,
however, to the following restrictions--
(1) Where more than one tangible item is included in a single
presentation, the entire presentation shall be considered as one gift,
and the aggregate value of all items taken together must not exceed
``minimal value''.
(2) The donee is responsible for determining that a gift is of
minimal value in the United States at the time of acceptance. However,
should any dispute result from a difference of opinion concerning the
value of a gift, the employing agency will secure the services of an
outside appraiser to establish whether the gift is one of ``minimal
value''. If, after an appraisal has been made, it is established that
the value of the gift in question is $200 or more at retail in the
United States, the donee will bear the costs of the appraisal. If,
however, the appraised value is established to be less than $200, the
employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when
(1) such gift is in the nature of an educational scholarship or medical
treatment, or (2) it appears that to refuse the gift would likely cause
offense or embarrassment or otherwise adversely affect the foreign
relations of the United States, except that a tangible gift of more than
minimal value is deemed to have been accepted on behalf of the United
States and, upon acceptance, shall become the property of the United
States.
(d) An employee may accept gifts of travel or expenses for travel
taking place entirely outside the United States (such as transportation,
food, and lodging) of more than minimal value if such acceptance is
appropriate,
[[Page 13]]
consistent with the interests of the United States, and permitted by the
employing agency. Except where the employing agency has specific
interests which may be favorably affected by employee travel wholly
outside the United States, even though it would not normally authorize
its employees to engage in such travel, the standards normally applied
to determine when proposed travel will be in the best interests of the
employing agency and of the United States Government shall be applied in
approving acceptance of travel or travel expenses offered by a foreign
government.
(1) There are two circumstances under which employees may accept
gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him
or her in the position of accepting travel or travel expenses offered by
a foreign government which are directly related to the authorized
purpose of the travel; or
(ii) When the employee's travel orders specifically anticipate the
acceptance of additional travel and travel expenses incident to the
authorized travel.
(2) When an employee is traveling under circumstances described in
paragraph (d)(1)(i) of this section, that is, without specific
instructions authorizing acceptance of additional travel expenses from a
foreign government, the employee must file a report with the employing
angency under the procedures prescribed in Sec. 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully
become the personal property of the donee, all supervisory officials
shall, in advising employees of their responsibilities under the
regulations, impress upon them their obligation to decline acceptance of
such gifts, whenever possible, at the time they are offered, or to
return them if they have been sent or delivered without a prior offer.
All practical measures, such as periodic briefings, shall be taken to
minimize the number of gifts which employees must deposit and which thus
become subject to disposal as provided by law and regulation. Employees
should not accept gifts of more than minimal value on the assumption
that refusal would be likely to ``cause offense or embarrassment or
otherwise adversely affect the foreign relations of the United States''.
In many instances it should be possible, by explanation of the
prohibition against an employee's retention of such gifts, to avoid
consequences of acceptance, including possible return of the gift to the
donor. Refusal of the gift at the inception should typically be regarded
as in the interest both of the foreign government donor and the U.S.
Government.
Sec. 3.5 Designation of officials and offices responsible for
administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of
administration relative to the disposal of foreign gifts and decorations
which become U.S. Government property. Each agency is now responsible
for receiving from its employees deposits of foreign gifts of more than
minimal value, as well as of foreign decorations not meeting the
statutory criteria for retention by the recipient. The agency is also
responsible for disposing of this property by return to the donor, for
retaining it in the agency if official use of it is approved, for
reporting to the General Services Administration within 30 calendar days
after deposit items neither disposed of nor retained, and for assuming
custody, proper care and handling of such property pending removal from
that custody pursuant to disposal arrangements by the General Services
Administration. The Secretary of State, however, is made responsible for
providing guidance to other executive agencies in the development of
their own regulations to implement the Act, as well as for the annual
publication of lists of all gifts of more than minimal value deposited
by Federal employees during the preceding year. [See Sec. 3.5(c).]
Authority for the discharge of the Secretary's responsibilities is
delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary
responsibility for administration of the Act within the Department of
State. That Office will, however, serve as the depository only for those
foreign gifts and decorations
[[Page 14]]
which are turned in by State Department employees. The Director of
Personnel Services of the USICA will have responsibility for
administration of the Act within that agency and will serve as the
depository of foreign gifts and decorations. Employees of the other
foreign affairs agencies must deposit with their respective agencies any
gifts or decorations deposit of which is required by law.
(c) Any questions concerning the implementation of these regulations
or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the
Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and
Public Affairs; and
(4) For USICA, to the General Counsel.
Sec. 3.6 Procedure to be followed by employees in depositing gifts of
more than minimal value and reporting acceptance of travel or travel expenses.
(a) An employee who has accepted a tangible gift of more than
minimal value shall, within 60 days after acceptance, relinquish it to
the designated depository office for the employing agency for disposal
or, with the approval of that office, deposit it for official use at a
designated location in the employing agency or at a specified Foreign
Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of
Management Planning in AID;
(3) For AID, the General Services Division of the Office of
Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal
value for disposal or for official use pursuant to paragraph (a) of this
section, or within 30 days after accepting a gift of travel or travel
expenses as provided in Sec. 3.4(d) (unless the gift of such travel or
travel expenses has been accepted in accordance with specific
instructions from the Department or agency), the employee shall file a
statement with the designated depository office with the following
information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance;
(iii) The identity of the foreign government and the name and
position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee's best estimate in specific dollar terms of the value
of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State
Department employees, forms for this purpose are available in the Office
of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances
justifying acceptance; and
(iii) The identity of the foregign government and the name and
position of the individual who presented the gift.
(c) The information contained in the statements called for in
paragraph (b) of this section is needed to comply with the statutory
requirement that, not later than Janaury 31 of each year, the Secretary
of State publish in the Federal Register a comprehensive listing of all
such statements filed by Federal employees concerning gifts of more than
minimal value received by them during the preceding year.
Sec. 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in
time of combat operations or awarded for other outstanding or unusually
meritorious performance may be accepted, retained, and worn by an
employee, subject to the approval of the employing agency. Without such
approval, the decoration is deemed to have been accepted on behalf of
the United States and, like tangible gifts of more than
[[Page 15]]
minimal value, must be deposited by the employee with the designated
depository office for the employing agency within sixty days after
acceptance, for retention for official use or for disposal in accordance
with Sec. 3.9.
(b) The decision as to whether a decoration has been awarded for
outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant
Secretary of State or comparable official, except that, in the case of a
decoration awarded to an Assistant Secretary or other officer of
comparable or higher rank, the decision shall be made by the Office of
Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General
Counsel, or the Director of the Office of Congressional and Public
Liaison (for domestic employees), and by the Director of Area Offices
(for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign
government, preferably in the form of a citation which shows the
specific basis for the tender of the award, should be supplied. An
employee who has received or been tendered a decoration should forward
to the designated depository office of the employing agency a request
for review of the case. This request should contain a statement of
circumstances of the award and such documentation from the foreign
government as has accompanied it. The depository office will obtain the
decision of the cognizant office as to whether the award meets the
statutory criteria and thus whether the decoration may be retained and
worn. Pending receipt of that decision, the decoration should remain in
the custody of the recipient.
Sec. 3.8 Approval of retention of gifts or decorations with employing
agency for official use.
(a) At the request of an overseas post or an office within the
employing agency, a gift or decoration deemed to have been accepted on
behalf of the United States may be retained for official use. Such
retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID's Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
However, to qualify for such approval, the gift or decoration should be
an item which can be used in the normal conduct of agency business, such
as a rug or a tea service, or an art object meriting display, such as a
painting or sculpture. Personal gift items, such as wristwatches,
jewelry, or wearing apparel, should not be regarded as suitable for
``official use''. Only under unusual circumstances will retention of a
decoration for official use be authorized. Every effort should be made
to place each ``official use'' item in a location that will afford the
largest number of employees, and, if feasible, members of the public,
the maximum opportunity to receive the benefit of its display, provided
the security of the location is adequate.
(b) Items approved for official use must be accounted for and
safeguarded as Federal property at all times under standard Federal
property management procedures. Within 30 days after the official use of
a gift has been terminated, the gift or decoration shall be deposited
with the designated depository office of the employing agency to be held
pending completion of disposal arrangements by the General Services
Administration.
Sec. 3.9 Disposal of gifts and decorations which become the property
of the United States.
(a) Gifts and decorations which have been reported to an employing
agency shall either be returned to the donor or kept in safe storage
pending receipt of instructions from the General Services Administration
for transfer, donation or other disposal under the provisions of the
Federal Property and Administrative Services Act of 1949, 63 Stat. 377,
as amended, and the Federal Property Management Regulations (41 CFR part
101-49). The employing agency shall examine each gift or decoration
[[Page 16]]
and the circumstances surrounding its donation and assess whether any
adverse effect upon the foreign relations of the United States might
result from a return of the gift (or decoration) to the donor, which
shall be the preferred means of disposal. If this is not deemed
feasible, the employing agency is required by GSA regulations to report
deposit of the gift or decoration within 30 calendar days, using
Standard Form 120, Report of Excess Personal Property and, as necessary,
Standard Form 120A, Continuation Sheet, and citing section 7342 of title
5, U.S. Code (1976), on the reporting document. Such reports shall be
submitted to the General Services Administration, Washington National
Capital Region (WDPO), Attention: Federal Property Resources Service,
Seventh and D Streets, SW., Washington, DC 20407.
(b) No gift or decoration deposited with the General Services
Administration for disposal may be sold without the approval of the
Secretary of State, upon a determination that the sale will not
adversely affect the foreign relations of the United States. When
depositing gifts or decorations with the designated depository office of
their employing agency, employees may indicate their interest in
participating in any subsequent sale of the items by the Government.
Before gifts and decorations may be considered for sale by the General
Services Administration, however, they must first have been offered for
transfer to Federal agencies and for donation to the States.
Consequently, employees should understand that there is no assurance
that an item will be offered for sale, or, if so offered, that it will
be feasible for an employee to participate in the sale. Employees are
reminded in this connection that the primary aim of the Act is to
discourage employees' acceptance of gifts of more than minimal value.
Sec. 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting
to the Attorney General cases in which there is reason to believe that
one of its employees has violated the Act. The Attorney General in turn
may file a civil action in any United States District Court against any
Federal employee who has knowingly solicited or accepted a gift from a
foreign government in violation of the Act, or who has failed to deposit
or report such gift, as an Act required by the Act. In such case, the
court may assess a maximum penality of the retail value of a gift
improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies
shall be responsible for providing periodic reorientation of all
employees under their supervision on the basic features of the Act and
these regulations, and for ensuring that those employees observe the
requirements for timely reporting and deposit of any gifts of more than
minimal value they may have accepted.
(c) Employees are advised of the following actions which may result
from failure to comply with the requirements of the Act and these
regulations:
(1) Any supervisor who has substantial reason to believe that an
employee under his or her supervision has violated the reporting or
other compliance provisions of the Act shall report the facts and
circumstances in writing to the senior official in charge of
administration within the cognizant bureau or office or at the post
abroad. If that official upon investigation decides that an employee who
is the donee of a gift or is the recipient of travel or travel expenses
has, through actions within the employee's control, failed to comply
with the procedures established by the Act and these regulations, the
case shall be referred to the Attorney General for appropriate action.
(2) In cases of confirmed evidence of a violation, whether or not
such violation results in the taking of action by the Attorney General,
the senior administrative official referred to in paragraph (c)(1) of
this section as responsible for forwarding a violation report to the
Attorney General shall institute appropriate disciplinary action against
an employee who has failed to (i) Deposit tangible gifts within 60 days
after acceptance, (ii) account properly for the acceptance of travel
expenses or (iii) comply with the Act's requirements respecting disposal
of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but
no evidence
[[Page 17]]
that the violation was willful on the part of the employee, the senior
administrative official referred to in paragraph (c)(1) of this section
shall institute appropriate disciplinary action of a lesser degree than
that called for in paragraph (c)(2) of this section in order to deter
future violations by the same or another employee.
Sec. 3.11 Responsibility of chief of mission to inform host government
of restrictions on employees' receipt of gifts and decorations.
A special provision of the Act requires the President to direct
every chief of a United States diplomatic mission to inform the host
government that it is a general policy of the United States Government
to prohibit its employees from receiving gifts of more than minimal
value or decorations that have not been tendered ``in recognition of
active field service in time of combat operations or awarded for other
outstanding or unusually meritorious performance.'' Accordingly, all
Chiefs of Mission shall in January of each year conduct a thorough and
explicit program of orientation aimed at appropriate officials of the
host government concerning the operation of the Act.
Sec. 3.12 Exemption of grants and other foreign government assistance
in cultural exchange programs from coverage of foreign gifts and
decorations legislation.
The Act specifically excludes from its application grants and other
forms of assistance ``to which section 108A of the Mutual Educational
and Cultural Exchange Act of 1961 applies''. See 22 U.S.C. 2558 (a) and
(b) for the terms and conditions under which Congress consents to the
acceptance by a Federal employee of grants and other forms of assistance
provided by a foreign government to facilitate the participation of such
employee in a cultural exchange.
PART 3a_ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF
THE UNIFORMED SERVICES--Table of Contents
Sec.
3a.1 Definitions.
3a.2 Requirement for approval of foreign government employment.
3a.3 Authority to approve or disapprove proposed foreign government
employment.
3a.4 Procedure for requesting approval.
3a.5 Basis for approval or disapproval.
3a.6 Notification of approval.
3a.7 Notification of disapproval and reconsideration.
3a.8 Change in status.
Authority: Sec. 509, 91 Stat. 859 (37 U.S.C. 801 Note); sec. 4, as
amended, 63 Stat. 111 (22 U.S.C. 2658).
Source: 43 FR 55393, Nov. 28, 1978, unless otherwise noted.
Sec. 3a.1 Definitions.
For purposes of this part--
(a) Applicant means any person who requests approval under this part
to accept any civil employment (and compensation therefor) from a
foreign government and who is: (1) Any retired member of the uniformed
services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public
Health Service.
The term ``applicant'' also includes persons described in paragraph
(a)(1), (2), or (3) of this section, who have already accepted foreign
government employment and are requesting approval under this part to
continue such employment.
(b) Uniformed services means the Armed Forces, the commissioned
Regular and Reserve Corps of the Public Health Service, and the
commissioned corps of the National Oceanic and Atmospheric
Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with
respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of
the Navy and the Marine Corps, members of the Navy and Marine Corps
Reserves, and retired members of the Coast Guard and members of the
Coast Guard Reserve when the Coast Guard is operating as a service in
the Navy;
(3) The Secretary of the Air Force, with respect to retired members
of the
[[Page 18]]
Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members
of the Coast Guard and members of the Coast Guard Reserve when the Coast
Guard is not operating as a service in the Navy;
(5) The Secretary of Commerce, with respect to retired members of
the commissioned corps of the National Oceanic and Atmospheric
Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to
retired members of the commissioned Regular Corps of the Public Health
Service and members of the commissioned Reserve Corps of the Public
Health Service.
Sec. 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, section 9, clause 8)
prohibits the acceptance of civil employment with a foreign government
by an officer of the United States without the consent of Congress.
Congress has consented to the acceptance of civil employment (and
compensation therefor) by any person described in Sec. 3a.1(b) subject
to the approval of the Secretary concerned and the Secretary of State
(37 U.S.C. 801, Note). Civil employment with a foreign government may
not be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment
with a foreign government by any officer of the United States other than
a person described in Sec. 3a.1(a). The acceptance of employment with a
foreign government by any other officer of the United States remains
subject to the constitutional prohibition described in paragraph (a) of
this section.
(c) Any person described in Sec. 3a.1(a) who accepts employment
with a foreign government without the approval required by this section
or otherwise obtaining the consent of Congress is subject to forfeiture
of retired pay to the extent of his or her compensation from the foreign
government, according to the Comptroller General of the United States
(44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other
penalty which may be imposed under law or regulation. \1\
---------------------------------------------------------------------------
\1\ Approval under this part does not constitute an exception to the
provisions of the Immigration and Nationality Act concerning loss of
United States citizenship, for example, by becoming a citizen of or
taking an oath of allegiance to another country. See 8 U.S.C. 1481 et
seq.
---------------------------------------------------------------------------
Sec. 3a.3 Authority to approve or disapprove proposed foreign government
employment.
The Director, Bureau of Politico-Military Affairs, is authorized to
approve or disapprove any request by an applicant for approval under
this part to accept civil employment (and compensation therefor) from a
foreign government. The Director may delegate this authority within the
Bureau of Politico-Military Affairs, Department of State.
Sec. 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign
government employment to the Secretary concerned, whose approval is also
required by law for the applicant's acceptance of civil employment from
a foreign government. The request must contain information concerning
the applicant's status, the nature of the proposed employment in as much
detail as possible, the identity of and relationship to the foreign
government concerned, and other matters as may be required by the
Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to
the Director, Bureau of Politico-Military Affairs, for approval.
Requests received by the Director, Bureau of Politico-Military Affairs,
directly from an applicant will be initially forwarded to the Secretary
concerned, or his designee, for approval of disapproval.
Sec. 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs,
under this part shall be based on whether the applicant's proposed
employment with a foreign government would adversely affect the foreign
relations of the United
[[Page 19]]
States, in light of the applicant's official status as a retiree or
reservist.
Sec. 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the
Secretary concerned when an applicant's proposed foreign government
employment is approved. Notification of approval to the applicant will
be made by the Secretary concerned or his designee.
Sec. 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify
the applicant directly when an applicant's proposed foreign employment
is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include
a statement of the reasons for the disapproval, with as much specificity
as security and foreign policy considerations permit, together with a
notice of the applicant's right to seek reconsideration of the
disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an
applicant whose request has been disapproved may submit a request for
reconsideration by the Director, Bureau of Politico-Military Affairs. A
request for reconsideration should provide information relevant to the
reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of
Politico-Military Affairs, will be final, unless a timely request for
reconsideration is received. In the event of a request for
reconsideration, the Director, Bureau of Politico-Military Affairs, will
make a final decision after reviewing the record of the request. A final
decision after reconsideration to approve the applicant's proposed
employment with a foreign government will be communicated to the
Secretary concerned as provided in Sec. 3a.6. A final decision after
reconsideration to disapprove the applicant's proposed employment with a
foreign government will be communicated directly to the applicant as
provided in paragraph (a) of this section and the Secretary concerned
will be informed. The Director's authority to make a final decision
after reconsideration may not be redelegated.
Sec. 3a.8 Change in status.
In the event that an applicant's foreign government employment
approved under this part is to be materially changed, either by a
substantial change in duties from those described in the request upon
which the original approval was based, or by a change of employer, the
applicant must obtain further approval in accordance with this part for
such changed employment.
PART 4_NOTIFICATION OF FOREIGN OFFICIAL STATUS--Table of Contents
Sec.
4.1 General.
4.2 Procedure.
Authority: 22 U.S.C. 2651a(a)(4).
Source: 61 FR 32328, June 24, 1996, unless otherwise noted.
Sec. 4.1 General.
In accordance with Article 10 of the Vienna Convention on Diplomatic
Relations and Article 24 of the Vienna Convention on Consular Relations,
diplomatic missions must notify the Office of Protocol immediately upon
the arrival, in the United States, of any foreign government officer or
employee (including domestics and family members), who are serving at
diplomatic missions, consular posts, or miscellaneous foreign government
offices. If the employee is already in the United States in some other
capacity, the notification should be made upon assumption of duties.
This initial notification requirement also includes all U.S. citizens
and permanent resident aliens who are employed by foreign missions.
Sec. 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents:
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer
and Career Consular Officer;
(b) All other foreign government employees who are serving at
diplomatic
[[Page 20]]
missions, consular posts, or miscellaneous foreign government offices
and their dependents: Form DSP-111, Notification of Appointment of
Foreign Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of
Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State
of any change in the status of officers or employees of the missions and
their family members originally reported to Protocol, or to apply for an
identification card.
(e) Upon termination of employment of any diplomatic or consular
officer, honorary consular officer, embassy or consular employee, or
miscellaneous foreign government staff member, a Form DSP-115, Notice of
Termination of Diplomatic, Consular, or Foreign Government Employment,
must be submitted to the Office of Protocol.
PART 5_ORGANIZATION--Table of Contents
Sec.
5.1 Introduction.
5.2 Central and field organization, established places at which, the
officers from whom, and the methods whereby the public may
secure information, make submittals, or request, or obtain
decisions; and statements of the general course and method by
which its functions are channeled and determined.
5.3 Rules of procedure, description of forms available or the places at
which forms may be obtained, and instructions as to the scope
and content of all papers, reports, or examinations.
5.4 Substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretation of
general applicability formulated and adopted by the agency.
Authority: Sec. 4, 63 Stat. 111, as amended, sec. 501, 65 Stat. 290;
22 U.S.C. 2658, 31 U.S.C. 483a, 5 U.S.C. 552, E.O. 10501; 18 FR 7049; 3
CFR, 1949-1953 Comp., page 979.
Source: 33 FR 7078, May 11, 1968, unless otherwise noted.
Sec. 5.1 Introduction.
The sections in this part 5 are issued pursuant to section 3 of the
Administrative Procedure Act, 5 U.S.C. 552, effective July 4, 1967.
Sec. 5.2 Central and field organization, established places at which,
the officers from whom, and the methods whereby the public may secure information,
make submittals, or request, or obtain decisions; and statements of
the general course and method by which its functions are
channeled and determined.
(a) The following statements of the central and field organization
of the Department of State and its Foreign Service posts are hereby
prescribed:
(1) The central organization of the Department of State was issued
as Public Notice No. 267, 32 FR 8923, June 22, 1967.
(2) The foreign field organization of the Department of State was
issued as Public Notice No. 254, 32 FR 3712, March 3, 1967.
(3) The domestic field organization of the Department of State was
issued as Public Notice No. 268, 32 FR 8925, June 22, 1967.
(b) As used in the following sections, the term ``Department of
State'' includes all offices within the Department in Washington, its
domestic field offices in the United States, all Foreign Service posts
throughout the world, and U.S. missions to international organizations
unless otherwise specified.
(c) Any person desiring information concerning a matter handled by
the Department of State, or any person desiring to make a submittal or
request in connection with such a matter, should communicate either
orally or in writing with the appropriate office. If the office
receiving the communication does not have jurisdiction to handle the
matter, the communication, if written, will be forwarded to the proper
office, or, if oral, the person will be advised how to proceed. When the
submittal or request consists of a formal application for one of the
documents, privileges, or other benefits provided for in the laws
administered by the Department of State, or in the regulations
implementing these laws, the instructions on the form as to preparation
and place of submission should be followed. In such cases, the
provisions of this part referring to the particular regulation concerned
should be consulted.
[[Page 21]]
Sec. 5.3 Rules of procedure, description of forms available or the
places at which forms may be obtained, and instructions as to the scope
and content of all papers, reports, or examinations.
Rules of procedure regarding the following listed matters may be
consulted under the corresponding regulations referenced in Sec. 5.4,
or obtained upon application to the offices listed below. Forms
pertaining to the following listed matters, and instructions relating
thereto may also be obtained at the offices indicated below:
----------------------------------------------------------------------------------------------------------------
Subject matter Office Address
----------------------------------------------------------------------------------------------------------------
Appointment of Foreign Service Officers.. Board of Examiners for the Department of State, Room 7314, 1800 N.
Foreign Service. Kent St., Arlington, Va. 22209.
Authentication and other services........ Document and Reference Department of State, Room 2815, 22d and
Division. D Sts. NW., Washington, DC 20520.
Claims and stolen property............... Legal Adviser.............. Department of State, 2201 C Street NW.,
Washington, DC 20520.
International educational and cultural Bureau of Educational and Department of State, 2201 C Street NW.,
exchange program. Cultural Affairs. Washington, DC 20520.
International traffic in arms............ Office of Munitions Control Department of State, Room 800, 1700 N.
Lynn St., Arlington, Va. 22209.
Nationality and passports................ Passport Office............ Department of State, Room 362, 1425 K
St., NW., Washington, DC 20524.
Protection and welfare of U.S. citizens, Office of Special Consular Department of State, 2201 C Street NW.,
shipping and seamen, and other consular Services. Washington, DC 20520.
services abroad.
Visa issuance............................ Visa Office................ Department of State, Annex 2, 515 22d
Street NW., Washington, DC 20520.
----------------------------------------------------------------------------------------------------------------
Sec. 5.4 Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretation of general
applicability formulated and adopted by the agency.
(a) The regulations of the Department of State required to be
published under the provisions of the Administrative Procedure Act are
found in the Code of Federal Regulations and the Federal Register. Any
person desiring information with respect to a particular procedure
should examine the pertinent regulation cited hereafter.
(b) The following are citations to regulations within the scope of
this section.
(1) Acceptance of Gifts and Decorations from Foreign Governments. 22
CFR part 3 et seq.
(2) Employee Responsibility and Conduct. 22 CFR part 10 et seq.
(3) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(4) Fees for Services in the United States, fees and Charges,
Foreign service. 22 CFR part 21 et seq.; 22 CFR part 22 et seq.
(5) Claims and Stolen Property. 22 CFR part 31 et seq.
(6) Issuance of Visas. 22 CFR parts 41-42 et seq.
(7) Nationality and Passports. 22 CFR part 50 et seq.
(8) International Educational and Cultural Exchanges. 22 CFR part 61
et seq.
(9) Protection and Welfare of Americans Abroad. 22 CFR part 71 et
seq.
(10) Shipping and Seamen Abroad. 22 CFR part 81 et seq.
(11) Other Consular Services Abroad. 22 CFR part 91 et seq.
(12) Economic, Commercial and Civil Air Functions Abroad. 22 CFR
part 101 et seq.
(13) International Traffic in Arms. 22 CFR part 121 et seq.
(14) Certificates of Authentication. 22 CFR part 131 et seq.
(15) Civil Rights. 22 CFR part 141 et seq.
(16) Department of State Procurement. 41 CFR part 6-1 et seq.
(c) These regulations are supplemented from time to time by
amendments appearing initially in the Federal Register.
PART 7_BOARD OF APPELLATE REVIEW--Table of Contents
Sec.
7.1 Definitions.
[[Page 22]]
7.2 Establishment of Board of Appellate Review; purpose.
7.3 Jurisdiction.
7.4 Membership and organization.
7.5 Procedures.
7.6 Hearings.
7.7 Passport cases.
7.8 South African Fair Labor Standards cases.
7.9 Decisions.
7.10 Motion for reconsideration.
7.11 Computation of time.
7.12 Attorneys.
Authority: Sec. 1, 44 Stat. 887, sec. 4, 63 Stat. 111, as amended,
22 U.S.C. 211a, 2658; secs. 104, 360, 66 Stat. 174, 273, 8 U.S.C. 1104,
1503; E.O. 11295, 36 FR 10603; 3 CFR 1966-1970 Comp., page 507; 22 CFR
60-65; E.O. 12532, 50 FR 36861 7.4 also issued under 22 U.S.C. 3926.
Source: 44 FR 68825, Nov. 30, 1979, unless otherwise noted.
Sec. 7.1 Definitions.
(a) Board means the Board of Appellate Review or the panel of three
members considering an appeal.
(b) Department means the Department of State.
(c) Party means the appellant or the Department of State.
Sec. 7.2 Establishment of Board of Appellate Review; purpose.
(a) There is hereby established the Board of Appellate Review of the
Department of State to consider and determine appeals within the purview
of Sec. 7.3. The Board shall take any action it considers appropriate
and necessary to the disposition of cases appealed to it.
(b) For administrative purposes, the Board shall be part of the
Office of the Legal Adviser. The merits of appeals or decisions of the
Board shall not be subject to review by the Legal Adviser or any other
Department official, except that the Department may administratively
vacate a Certificate of Loss of Nationality on its own initiative at any
time, notwithstanding an intervening decision by the Board sustaining
the Department's original determination.
[44 FR 68825, Nov. 30, 1979, as amended at 56 FR 55457, Oct. 28, 1991]
Sec. 7.3 Jurisdiction.
The jurisdiction of the Board shall include appeals from decisions
in the following cases:
(a) Appeals from administrative determinations of loss of
nationality or expatriation under subpart C of part 50 of this chapter.
(b) Appeals from administrative decisions denying, revoking,
restricting or invalidating a passport under Sec. Sec. 51.70 and 51.71
of this chapter.
(c) Appeals from final decisions of contracting officers arising
under contracts or grants of the Department of State, not otherwise
provided for in the Department of State contract appeal regulations
(part 6-60 of title 41).
(d) Appeals from administrative determinations under Sec. 64.1(a)
of this chapter, denying U.S. Government assistance to U.S. nationals
who do not comply with the Fair Labor Standards in Sec. 61.2 of this
chapter.
(e) Appeals from administrative decisions of the Department of State
in such other cases and under such terms of reference as the Secretary
of State may authorize.
[44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986]
Sec. 7.4 Membership and organization.
(a) Membership. The Board shall consist of regular and ad hoc
members as the Legal Adviser may designate. Regular members shall serve
on a fulltime basis. Ad hoc members may be designated from among senior
officers of the Department of State or from among persons not employed
by the Department. Regular and ad hoc members shall be attorneys in good
standing admitted to practice in any State of the United States, the
District of Columbia, or any Territory or possession of the United
States.
(b) Chairperson. The Legal Adviser shall designate a regular member
of the Board as chairperson. A member designated by the chairperson
shall act in the absence of the chairperson. The chairperson or designee
shall preside at all proceedings before the Board, regulate the conduct
of such proceedings, and pass on all issues relating thereto.
(c) Composition. In considering an appeal, the Board shall act
through a panel of three members, not more than two of whom shall be ad
hoc members.
(d) Rules of procedure. The Board may adopt and promulgate rules of
procedure approved by the Secretary of
[[Page 23]]
State as may be necessary to govern its proceedings.
(22 U.S.C. 2658 and 3926)
[44 FR 68825, Nov. 30, 1979, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 7.5 Procedures.
(a) Filing of appeal. A person who has been the subject of an
adverse decision in a case falling within the purview of Sec. 7.3 shall
be entitled upon written request made within the prescribed time to
appeal the decision to the Board. The appeal shall be in writing and
shall state with particularity reasons for the appeal. The appeal may by
accompanied by a legal brief. An appeal filed after the prescribed time
shall be denied unless the Board determines for good cause shown that
the appeal could not have been filed within the prescribed time.
(b) Time limit on appeal. (1) A person who contends that the
Department's administrative determination of loss of nationality or
expatriation under subpart C of part 50 of this chapter is contrary to
law or fact, shall be entitled to appeal such determination to the Board
upon written request made within one year after approval by the
Department of the certificate of loss of nationality or a certificate of
expatriation.
(2) A person who has been subject of an adverse decision under Sec.
51.89, of this Chapter shall be entitled to appeal the decision to the
Board upon written request made within 60 days after receipt of notice
of such decision.
(3) A national who has been subject of an adverse decision under
Sec. 64.1(a) of this chapter shall be entitled to appeal the decision
to the Board within 30 days after receipt of notice of such decision.
(4) Time limits for other appeals shall be established by the Board
as appropriate.
(c) Department case record. Upon the written request of the Board,
the office or bureau in the Department of State responsible for the
decision from which the appeal was taken shall assemble and transmit to
the Board within 45 days the record on which the Department's decision
in the case was based. The case record may be accompanied by a
memorandum setting forth the position of the Department on the case.
(d) Briefs. Briefs in support of or in opposition to an appeal shall
be submitted in triplicate to the Board. The appellant shall submit his
or her brief within 60 days after filing of the appeal. The Department
shall then file a brief within 60 days after receipt of a copy of
appellant's brief. Reply briefs, if any, shall be filed within 30 days
after the date the Department's brief is filed with the Board. Extension
of time for submission of a reply brief may be granted by the Board for
good cause shown. Posthearing briefs may be submitted upon such terms as
may be agreed to by the parties and the presiding member of the Board at
the conclusion of a hearing.
(e) Hearing. An appellant shall be entitled to a hearing upon
written request to the Board. An appellant may elect to waive a hearing
and submit his or her appeal for decision on the basis of the record
before the Board.
(f) Pre-hearing conference. Whether there is a hearing before the
Board on an appeal or whether an appeal is submitted for decision on the
record without a hearing the Board may call upon the parties to appear
before a member of the Board for a conference to consider the
simplification or clarification of issues and other matters as may aid
in the disposition of the appeal. The results of the conference shall be
reduced to writing by the presiding Board member, and this writing shall
constitute a part of the record.
(g) Admissibility of evidence. Except as otherwise provided in Sec.
7.7 and Sec. 7.8, the parties may introduce such evidence as the Board
deems proper. Formal rules of evidence shall not apply, but reasonable
restrictions shall be imposed as to the relevancy, competency and
materiality of evidence presented.
(h) Depositions. The Board may, upon the written request of either
party or upon agreement by the parties, permit the taking of the
testimony of any person by deposition upon oral examination or written
interrogatories for use as evidence in the appeal proceedings. The
deponent shall be subject to cross-examination either by oral
examination or by written interrogatories by the opposing party or by
the Board.
[[Page 24]]
Leave to take a deposition shall not be granted unless it appears
impracticable to require the deponent's testimony at the hearing on the
appeal, or unless the taking of a deposition is deemed to be warranted
for other valid reasons.
(i) Record of proceedings. The record of proceedings before the
Board shall consist of the Department's case record, briefs and other
written submissions of the parties, the stipulation of facts, if any,
the evidence admitted, and the transcript of the hearing if there is a
hearing. The record shall be available for inspection by the parties at
the Office of the Board.
(j) Scope of review. Except as otherwise provided in Sec. Sec. 7.7
and 7.8, the Board shall review the record in the case before it. The
Board shall not consider argument challenging the constitutionality of
any law or of any regulation of the Department of State or take into
consideration any classified or administratively controlled material.
(k) Appearance before the Board. Any party to any proceeding before
the Board is entitled to appear in person or by or with his or her
attorney, who must possess the requisite qualifications, set forth in
Sec. 7.12, to practice before the Board.
(l) Failure to prosecute an appeal. Whenever the record discloses
the failure of an appellant to file documents required by these
regulations, respond to notices or correspondence from the Board, or
otherwise indicates an intention not to continue the prosecution of an
appeal, the Board may in its discretion terminate the proceedings
without prejudice to the later reinstatement of the appeal for good
cause shown.
[44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986;
52 FR 41560, Oct. 29, 1987]
Sec. 7.6 Hearings.
(a) Notice and place of hearing. The parties shall be given at least
15 days notice in writing of the scheduled date and place of a hearing
on an appeal. The Board shall have final authority to fix or change any
hearing date giving consideration to the convenience of the parties.
Hearings shall be held at the Department of State, Washington, DC,
unless the Board determines otherwise.
(b) Conduct of hearing. The appellant may appear and testify on his
own behalf. The parties may present witnesses, offer evidence and make
argument. The appellant and witnesses may be examined by any member of
the Board, by the Department, and by the appellant's attorney, if any.
If any witness whom the appellant or the Department wishes to call is
unable to appear personally, the Board in its discretion, may accept an
affidavit by the witness or grant leave to take the deposition of such
witness. Any such witness will be subject to cross examination by means
of sworn responses to interrogatories posed by the opposing party. The
appellant and the Department shall be entitled to be informed of all
evidence before the Board and of the source of such evidence, and to
confront and cross-examine any adverse witness. The Board may require a
stipulation of facts prior to or at the beginning of the hearing and may
require supplemental statements on issues presented to it, or
confirmation, verification or authentication of any evidence submitted
by the parties. The parties shall be entitled to reasonable continuances
upon request for good cause shown.
(c) Privacy of hearing. The hearing shall be private unless an
appellant requests in writing that the hearing be open to the public.
Attendance at the hearing shall be limited to the appellant, attorneys
of the parties, the members of the Board, Department personnel who are
directly involved in the presentation of the case, official
stenographers, and the witnesses. Witnesses shall be present at the
hearing only while they are giving testimony or when otherwise directed
by the Board.
(d) Transcript of hearing. A complete verbatim transcript shall be
made of the hearing by a qualified reporter, and the transcript shall
constitute a permanent part of the record. Upon request, the appellant
shall have the right to inspect the complete transcript and to purchase
a copy thereof.
(e) Nonappearance of a party. The unexcused absence of a party at
the time and place set for a hearing shall not be occasion for delay. In
the event of such absence, the case will be regarded as
[[Page 25]]
having been submitted by the absent party on the record before the
Board.
[44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11, 1988]
Sec. 7.7 Passport cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for Consular Affairs denying, revoking,
restricting, or invalidating a passport under Sec. Sec. 51.70 and 51.71
of this chapter, the Board's review, except as provided in paragraph (b)
of this section, shall be limited to the record on which the Assistant
Secretary's decision was based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented at the hearing held under
Sec. Sec. 51.81-51.89 of this chapter unless it is satisfied that such
evidence or testimony was not available or could not have been
discovered by the exercise of reasonable diligence prior to such
hearing.
[44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11, 1988]
Sec. 7.8 South African Fair Labor Standards cases.
(a) Scope of review. With respect to appeals taken from decisions of
the Assistant Secretary for African Affairs denying assistance to U.S.
nationals operating in South Africa which do not comply with the Fair
Labor Standards outlined in Sec. 61.2 of the chapter, the Board's
review except as provided in paragraph (b) of this section shall be
limited to the record on which the Assistant Secretary's decision was
based.
(b) Admissibility of evidence. The Board shall not receive or
consider evidence or testimony not presented pursuant to Sec. 63.3(a)
or Sec. 63.3(b) of this chapter unless it is satisfied that such
evidence was not available or could not have been discovered by the
exercise of reasonable diligence prior to entry of the decision of the
Assistant Secretary for African Affairs.
[51 FR 15319, Apr. 23, 1986, as amended at 52 FR 41560, Oct. 29, 1987;
53 FR 39589, Oct. 11, 1988]
Sec. 7.9 Decisions.
The Board shall decide the appeal on the basis of the record of the
proceedings. The decision shall be by majority vote in writing and shall
include findings of fact and conclusions of law on which it is based.
The decision of the Board shall be final, subject to Sec. Sec. 7.2(b)
and 7.10. Copies of the Board's decision shall be forwarded promptly to
the parties.
[56 FR 55457, Oct. 28, 1991]
Sec. 7.10 Motion for reconsideration.
The Board may entertain a motion for reconsideration of a Board's
decision, if filed by either party. The motion shall state with
particularity the grounds for the motion, including any facts or points
of law which the filing party claims the Board has overlooked or
misapprehended, and shall be filed within 30 days from the date of
receipt of a copy of the decision of the Board by the party filing the
motion. Oral argument on the motion shall not be permitted. However, the
party in opposition to the motion will be given opportunity to file a
memorandum in opposition to the motion within 30 days of the date the
Board forwards a copy of the motion to the party in opposition. If the
motion to reconsider is granted, the Board shall review the record, and,
upon such further reconsideration, shall affirm, modify, or reverse the
original decision of the Board in the case.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
Sec. 7.11 Computation of time.
In computing the period of time for taking any action under this
part, the day of the act, event, or notice from which the specified
period of time begins to run shall not be included. The last day of the
period shall be included, unless it falls on a Saturday, Sunday, or a
legal holiday, in which event the period shall extend to the end of the
next day which is not a Saturday, Sunday, or a legal holiday. The Board
for good cause shown may in its discretion enlarge the time prescribed
by this part for the taking of any action.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
[[Page 26]]
Sec. 7.12 Attorneys.
(a) Attorneys at law who are admitted to practice in any State of
the United States, the District of Columbia, or any Territory or
possession of the United States, and who are members of the Bar in good
standing, may practice before the Board unless disqualified under
paragraph (b) of this section or for some other valid reason.
(b) No attorney shall be permitted to appear before the Board as
attorney representing an appellant if he or she is subject to the
conflict of interest provisions of chapter 11 of title 18 of the United
States Code.
[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986]
PART 8_ADVISORY COMMITTEE MANAGEMENT--Table of Contents
Sec.
8.1 Authorities.
8.2 Policy.
8.3 Scope.
8.4 Definitions.
8.5 Creation of a committee.
8.6 Membership.
8.7 Security.
8.8 Chartering of committees.
8.9 Meetings of advisory committees.
8.10 Reports.
8.11 Records.
8.12 Financial records.
8.13 Availability of records.
8.14 Public inquiries.
Authority: 22 U.S.C. 2658; sec. 8(a) Federal Advisory Committee Act
(Pub. L. 92-463); E.O. 11769; and OMB Circular A-63, Rev.
Source: 40 FR 28606, July 8, 1975, unless otherwise noted.
Sec. 8.1 Authorities.
(a) Regulatory authorities. (1) These regulations are issued to
implement the Federal Advisory Committee Act, Pub. L. 92-463, which
became effective January 5, 1973, and Office of Management and Budget
Circular No. A-63 of March 27, 1974. These regulations also are in
accordance with Executive Order 11769 of February 21, 1974, and the
responsibilities of the Secretary of State under 22 U.S.C. 2656.
(2) These regulations apply to any advisory committee which provides
advice to the Department of State or any officer of the Department.
However, to the extent that an advisory committee is subject to
particular statutory provisions, which are inconsistent with the Federal
Advisory Committee Act, these regulations do not apply.
(b) Delegated authority. (1) The Deputy Under Secretary for
Management has been designated by the Secretary (Delegation of Authority
No. 125 signed November 7, 1972) to have full responsibility for the
Committee Management function.
(2) The Advisory Committee Management Officer in the Management
Systems Staff administers the Committee Management Program for the
Deputy Under Secretary for Management.
Sec. 8.2 Policy.
(a) Advisory Committees are to be used for obtaining advice and
recommendations on matters for which they were established, and may be
utilized only when the information sought is not otherwise efficiently
and economically available.
(b) Unless provided otherwise by statute or Presidential directive,
advisory committees shall be utilized solely for advisory functions and
any decision taken pursuant to the advice or recommendation of an
advisory committee is the responsibility of the appropriate Department
officer. For the purposes of this provision, ``Presidential directive''
includes an executive order or executive memorandum.
(c) Meetings of advisory committees will be open to the public
unless there is a compelling reason which requires nondisclosure of the
subject matter in accordance with public law (5 U.S.C. 552 (b)).
Sec. 8.3 Scope.
(a) The Federal Advisory Committee Act applies to committees
``established'' by the Government and to committees ``utilized'' though
not established by the Government.
(1) The President and the Congress, or the Department in
consultation with the Office of Management and Budget, may establish a
group which shall be known as an advisory committee for the purpose of
obtaining advice or recommendations and which
[[Page 27]]
shall be subject to the Federal Advisory Committee Act throughout its
existence.
(2) Though not established by the President or the Department, a
group utilized for the purpose of obtaining advice or recommendations
must file a charter prior to a meeting, and otherwise conform to the
requirements of the Act during any meetings or other contacts with the
Department.
(b) One requisite for coverage of either type (established or
utilized) under the Federal Advisory Committee Act is that the group can
be defined as a committee as set forth in the definition of a committee,
as contained in Sec. 8.4 of these regulations, and have all or most of
the following characteristics:
(1) The purpose, objective or intent is that of providing advice to
any officer or organizational component of the Department;
(2) Has regular or periodic meetings;
(3) Has fixed membership (membership may include more than one full
time Federal officer or employee but is not comprised wholly of
Government personnel);
(4) Has an organizational structure (e.g., officers) and a staff.
(c) Where a group provides some advice to an agency, but the group's
advisory function is incidental to and inseparable from other
operational functions such as making or implementing decisions, the
Federal Advisory Committee Act does not apply.
(d) Where the advisory function of a group is separable from its
operational function, the group is subject to the Act to the extent that
it operates as an advisory committee.
Sec. 8.4 Definitions.
(a) The Federal Advisory Committee Act defines advisory committee as
any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup
thereof, which is--
(1) Established by statute or reorganization plan, or
(2) Established or utilized by the President, or
(3) Established or utilized by one or more agencies, in the interest
of obtaining advice or recommendations for the President or one or more
agencies or officers of the Federal Government, except a committee
composed wholly of full-time officers and employees of the Government.
(b) A formal subgroup or subcommittee independently possesses
significant requisites of an advisory committee, i.e., fixed membership,
periodic meetings, et cetera.
(c) An informal subgroup or subcommittee is one that facilitates the
activities of its advisory committee. For example, during a particular
meeting, the advisory committee may divide itself into subgroups to
permit simultaneous discussion of different topics.
Sec. 8.5 Creation of a committee.
(a) A bureau or an office designated or desiring to sponsor an
advisory committee will prepare a memorandum to the Advisory Committee
Management Officer setting forth the purpose, organization (including
subgroups), proposed balanced membership (see Sec. 8.6), and a
justification for the need of the particular committee.
(b) The Advisory Committee Management Officer will review the
request and will make an action recommendation to the Deputy Under
Secretary for Management through the Director of the Management Systems
Staff.
(c) If the Deputy Under Secretary for Management approves the
request, it will be submitted to the Committee Management Secretariat of
the Office of Management and Budget for approval. The OMB Secretariat
will usually take action within 15 days.
(d) The Advisory Committee Management Officer will advise the
sponsoring bureau or office of the approval for or rejection of the
request to establish the advisory committee.
(e) After OMB approval the intent to establish an advisory
committee, containing a description of the committee and a statement of
why it is in the public interest to create it, will be published in the
Federal Register at least 15 days prior to filing the committee charter.
[[Page 28]]
Sec. 8.6 Membership.
(a) The act requires a balanced membership in terms of the points of
view represented. Members are selected for their expertise in the
committee's functions and should be chosen from different vocations
having knowledge in the subject.
(b) It is Department policy that members will be selected without
regard to national origin, religion, race, sex, or color.
(c) The committee office will keep the Advisory Committee Management
Officer currently advised of a committee's membership including
vacancies.
Sec. 8.7 Security.
(a) All officers and members of a committee must have a security
clearance for the subject matter level of security at which the
committee functions.
(b) The responsible committee office will provide the Advisory
Committee Management Officer with each member's security clearance level
and date of issue.
(c) The substantive office sponsoring an advisory committee is
responsible for access to and removal from official premises of
classified material in accordance with the Department's security
regulations (5 FAM 940 and 973). Any questions arising involving
security procedures are to be presented to the Office of Security for
guidance and resolution.
Sec. 8.8 Chartering of committees.
(a) Requirements. (1) Each advisory committee, whether established
or utilized, must have a charter approved by the Deputy Under Secretary
of State for Management and filed with the Advisory Committee Management
Officer, the Senate Foreign Relations Committee and the House Committee
on International Relations, and in the case of a Presidential advisory
committee only with the Committee Management Secretariat of OMB before
it can hold a meeting.
(2) Formal subgroups may be chartered separately or the requisite
information set forth in the charter of the parent committee.
(3) Informal subgroups may not require a charter; however, the
charter of the parent committee must cover this aspect of its
organization.
(4) The Advisory Committee Management Officer will, at the time a
charter is filed, furnish a copy of the filed charter to the Library of
Congress.
(b) Contents. Each committee charter shall contain: The official
name and acronym, if any; the objectives, scope of activity, and full
description of duties; the authority for such functions; the Department
official (by title) to whom the committee reports; the relationship to
or with other committees; the committee organization, composition of
membership and officers' responsibilities; a description of the type of
minutes, with their certification of accuracy, and records to be
maintained; the estimated annual operating costs in dollars and man-
years, and the source and authority for these resources; the period of
time that will be required by the committee to accomplish its stated
purpose; the estimated number and frequency of meetings; the termination
date; and the filing date of the charter.
(c) Termination and Renewal. (1) An existing advisory committee will
be automatically terminated at the end of a 2-year period (i.e., date
specified in charter) unless its charter is renewed, except for a
statutory committee which has provisions providing to the contrary.
(2) The Deputy Under Secretary for Management will make a
determination, based on a comprehensive review, whether or not a
committee will be continued.
(3) The OMB Secretariat will be advised of the determination and
reasons therefore 60 days prior to the charter expiration date of the
committee. If the Secretariat concurs, the Advisory Committee Management
Officer will publish in the Federal Register the Department's intent to
continue those advisory committees so designated by the Deputy Under
Secretary for Management.
(4) Each office responsible for an advisory committee it wishes to
continue will prepare a new charter and submit it to the Advisory
Committee Management Officer before October 1 biennially.
[[Page 29]]
(5) No advisory committee shall meet, advise or make recommendations
between the expiration date of its charter and the date its new charter
is filed.
(d) Amendments. (1) The charter of a committee may be amended, as
necessary, to reflect current information on organization, composition,
activities, et cetera.
(2) A proposed amendment must be approved prior to any committee
activity to which the proposed amendment relates.
Sec. 8.9 Meetings of advisory committees.
(a) Applicability. The term ``meeting'' covers any situation in
which all or some of the members of an advisory committee convene with a
representative of the Department to transact committee business or to
discuss matters related to the committee. This is applicable to an
advisory committee and to its subordinate components.
(b) Designated Department Official. (1) No advisory committee may
hold a meeting in the absence of the designated full-time Department or
other U.S. Government officer.
(2) The designated Department or other U.S. Government officer has
the following responsibilities:
(i) Prepares or approves the agenda for all meetings;
(ii) Calls or approves in advance the calling of the meetings;
(iii) Adjourns any meeting whenever he or she determines that
adjournment is in the public interest.
(c) Notice of Meetings. (1) All advisory committee meetings, open or
closed, will be publicly announced except when the President of the
United States determines otherwise for reasons of national security.
(2) Notice of each such meeting shall be published in the Federal
Register and in a Department of State Press Release at least 15 days
prior to the meeting date.
(3) The responsible committee office will prepare the notice and
press release, obtaining clearances as set forth in paragraphs (c)(3)
(i) and (ii) of this section, and deliver to the Advisory Committee
Management Officer for action:
(i) Open meeting--clearance within initiating office/bureau;
(ii) Closed meeting--clearance within initiating office/bureau
including its legal adviser, and the Bureau of Public Affairs at the
Bureau level.
(4) The Deputy Under Secretary for Management will determine if an
advisory committee may hold a closed meeting, after a request for a
meeting not open to the public is cleared by the Advisory Committee
Management Officer and the Office of the Legal Adviser.
(5) After the clearances set forth in paragraphs (c) (3) and (4) of
this section, a notification of meeting may also be provided by the
office/bureau to any persons or organizations known to be interested in
the activities of the committee.
(6) The office sponsoring the committee is responsible for meeting
publishing date requirements. Overall normal processing time prior to a
meeting date is 25 days for an open meeting and 47 days for a closed
meeting.
(d) Contents of Notice. (1) The content of the Federal Register
public notice and the Department of State press release will be
identical.
(2) An open meeting announcement will state the name of the
committee; the date, time, and place of the meeting; the agenda or
summary thereof; that the meeting will be open to the public; the extent
to which the public may participate in the meeting, either orally or in
writing; seating space available; and the name and telephone number of a
committee officer to whom inquiries may be directed, including
arrangments for those attending if the meeting is in a secure building.
(3) A closed meeting announcement will state the name of the
committee, the date of meeting and the reason or reasons which justify
the closing of the meeting in the public interest.
(e) Closed Meetings. (1) An advisory committee meeting may be closed
in accordance with the Federal Advisory Committee Act when the President
or Department determines that the meeting is concerned with matters
listed in section 552(b) of title 5, United States Code.
(2) Any determination to close all or a part of a meeting must be
based upon
[[Page 30]]
specific reasons. If a meeting is to cover separable matters, not all of
which are within the exemptions of 5 U.S.C. 552(b), only the portion of
the meeting dealing with exempt matters may be closed.
(3) When a meeting or portion of a meeting is to be closed to the
public, the notice should state the reasons for the closing.
(4) The written request in accordance with paragraph (c)(4) of this
section, for a determination by the Deputy Under Secretary for
Management that a committee may hold a closed meeting must be submitted
at least 47 days before the scheduled date of the meeting unless the
Deputy Under Secretary for Management determines that a shorter period
of time is necessary.
(f) Cancelled Meetings. (1) The cancellation of a scheduled
committee meeting must be publicized without delay.
(2) The responsible committee office will prepare a public notice
and press release and hand-carry them to the Advisory Committee
Management Officer as soon as the decision to cancel the meeting is
made.
(3) The notice and press release will state the name of the advisory
committee, identify the meeting that is cancelled, and state why it is
cancelled. The Federal Register data, if known, concerning the
announcement should be cited.
(g) Rescheduled Meetings. When it is not feasible to hold an
advisory committee meeting on the date that has been announced such
meeting may be rescheduled for a later date by utilizing the same
procedure as set forth in paragraph (f) of this section except the word
rescheduled is substituted for cancelled.
(h) Minutes. (1) Detailed minutes of each advisory committee
meeting, including subgroups, shall be kept.
(2) The minutes for an open meeting shall as a minimum cover the
folllowing items: The time and place of the meeting; a listing of
advisory committee members and staff and agency employees present at the
meeting; a complete summary of matters discussed and conclusions
reached; copies of all reports received, issued, or approved by the
advisory committee; a description of the extent to which the meeting was
open to the public; an explanation of the extent of public
participation, including a list of members of the public who presented
oral or written statements; and an estimate of the number of members of
the public who attended the meeting.
(3) The minutes for a closed meeting shall include all that is
required for an open meeting except those items relating to the presence
of the public.
(4) The chairperson of each advisory committee shall certify the
accuracy of the committee minutes.
(22 U.S.C. 2658 and 3926)
[40 FR 28606, July 8, 1975, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 8.10 Reports.
(a) There are two categories of reports on advisory committees. One
category is concerned with management and the other with advisory
activities.
(b) Management reports include:
(1) Comprehensive Review. An annual review shall be conducted on a
calendar year basis to determine the essentiality of the committee. The
results of that Review are included in the Annual Report. The due date
is October 1.
(2) Annual Report. A calendar year report which covers the status of
the committee. It is a component report for the President's annual
report to the Congress. The due date is December 31.
(3) Report of Closed Meeting(s). A summary of the activities and
related matters discussed by a committee during a closed meeting shall
be prepared annually. It is to be as informative as possible for the
public consistent with section 552(b) policy of the Freedom of
Information Act.
(4) Other Reports. Other management reports that may be required,
such as requests from the Office of Management and Budget, Congressional
Committees, et cetera, will be submitted in accordance with the
requested due date.
(c) Advisory activities reports are reports issued by the committee.
They are to be submitted, when prepared in final as a committee document
or published, on a current basis.
(d) All reports are submitted to the Advisory Committee Management
Officer.
[[Page 31]]
(1) The Comprehensive Review is signed by the responsible committee
officer and approved by the bureau/office policy making officer. It is
submitted in original only.
(2) The Annual Report will be prepared on Standard Forms 248 and 249
in original and one copy. (Instructions for preparation are printed on
the back of the forms.)
(3) The Report of Closed Meeting(s) is signed by the committee
chairman and submitted in original and 8 copies.
(4) The Advisory activities reports are submitted in 9 copies each,
except Presidential advisory committee reports are submitted in 12
copies.
Sec. 8.11 Records.
(a) The records of an advisory committee consist of all papers and
documents which are prepared for or by and/or made available to the
committee, and are maintained by the office responsible for the
committee. Such records are inter alia agenda, drafts, minutes, notices,
press releases, reports, studies, transcripts, and working papers.
(b) The Advisory Committee Management Officer maintains the
Department's official records relating to the management of all
committees.
Sec. 8.12 Financial records.
Accurate records will be kept by the responsible committee office of
all operating and salary costs of a committee. (See instruction item 17
on SF-248.)
Sec. 8.13 Availability of records.
The records of a committee are to be made available upon request in
accordance with the Department's regulations promulgated in accordance
with the provisions of the Freedom of Information Act (40 Federal
Register 7256-7529, February 19, 1975).
Sec. 8.14 Public inquiries.
Public inquiries concerning the implementation of the Federal
Advisory Committee Act and the management of the advisory committees of
the Department should be addressed to the Advisory Committee Management
Officer, Management Systems Staff, Department of State, Washington, DC
20520.
PART 9_SECURITY INFORMATION REGULATIONS--Table of Contents
Sec.
9.1 General policy.
9.2 Implementation and oversight responsibilities.
9.3 Responsibility for safeguarding classified information.
9.4 Classification.
9.5 Classification designations.
9.6 Requirements for classification.
9.7 Classification authority.
9.8 Limitations on classification.
9.9 Duration of classification.
9.10 Derivative classification.
9.11 Derivative classification guides.
9.12 Identification and markings.
9.13 Transferred material.
9.14 Declassification and downgrading.
9.15 Systematic review for declassification guidelines.
9.16 Mandatory review.
9.17 Schedule of fees.
9.18 Access by Presidential appointees.
Appendix A to Part 9--Definitions
Authority: E.O. 12356, National Security Regulations of April 2,
1982 (47 FR 14874, April 6, 1982): Information Security Oversight Office
Directive No. 1 (47 FR 27836, June 25, 1982).
Source: 47 FR 55594, Dec. 10, 1982, unless otherwise noted.
Sec. 9.1 General policy.
(a) E.O. 12356 (hereinafter called ``the Order'') recognizes that it
is essential that the public be informed concerning the activities of
its government, but that the interests of the United States and its
citizens require that certain information concerning the national
defense and foreign relations be protected against unauthorized
disclosure. With this object, the Order prescribes a uniform system for
classifying, declassifying, and safeguarding national security
information.
(b) The purpose of these regulations is to assist in the
implementation of the Order and Information Security Oversight Office
(hereinafter referred to as ISOO), Directive No. 1, (hereinafter called
``the Directive''), and users of these regulations may refer to the
Order and Directive for additional guidance.
[[Page 32]]
Sec. 9.2 Implementation and oversight responsibilities.
The Order requires each agency that originates or handles classified
information to promulgate implementing regulations. The Order further
requires that each agency originating or handling classified material
shall designate a senior official to direct and administer its
information security program. This official shall be responsible for
actively overseeing the agency's program, including a security education
program, to ensure effective implementation of the Order.
(a) In addition, this official shall have the following
responsibilities:
(1) To establish and monitor agency policies and procedures to
prevent over or under classification, to ensure the protection from
unauthorized disclosure of properly classified information, including
intelligence information, and to ensure orderly and effective
declassification of agency documents which no longer require protection,
in accordance with the terms of the Order.
(2) To review proposed classified disclosures of an exceptional
nature bearing upon issues of concern to the Congress and the public.
(3) To issue any needed guidelines for classification or
declassification.
(4) To recommend to the agency head the following:
(i) Proposals for reclassification in accordance with section 1.6(c)
of the Order;
(ii) Other categories of information, as defined in section
1.3(a)(10) of the Order, which require protection against unauthorized
disclosure but which are not specifically protected by sections 1.3(a)
(1) through (9) of the Order;
(iii) Waivers, for specified classes of documents or information of
the requirement to indicate which portions of documents are classified
and which are not, as provided by section 1.5(b) of the Order; and
(iv) Waivers for specified classes of documents or information, of
the requirement to prepare derivative classification guides, as provided
by section 2.2(c) of the Order.
(5) To prepare a list of officials, by name or position, delegated
Top Secret, Secret, and Confidential classification authority.
(6) To receive, and if necessary act on, suggestions and complaints
with respect to that agency's administration of its information security
program.
(7) To provide guidance concerning corrective or disciplinary action
in unusually important cases involving unauthorized disclosure or
refusal to declassify.
(8) To maintain liaison with the Director of ISOO and to furnish
reports and information as required by section 5.2 of the Order.
(b) Department of State. Within the Department of State, the senior
official is the Deputy Assistant Secretary, Classification/
Declassification Center, hereinafter referred to as (DAS/CDC).
(c) AID. Within AID (a component of the International Development
Cooperation Agency), the senior official is the Inspector General.
(d) USIA. Within USIA, the senior official is the Director, Office
of the Public Liaison.
Sec. 9.3 Responsibility for safeguarding classified information.
(a) Primary. The specific responsibility for the maintenance of the
security of classified information rests with each person having
knowledge or physical custody thereof, no matter how obtained.
(b) Individual. Each employee is responsible for becoming familiar
with and adhering to all security regulations.
(c) Supervisory. The ultimate responsibility for safeguarding
classified information rests upon each supervisor to the same degree
that the supervisor is charged with functional responsibility for the
organizational unit. While certain employees may be assigned specific
security responsibilities, such as Top Secret Control Officer or Unit
Security Officer, it is nevertheless the basic responsibility of
supervisors to ensure that classified material entrusted to their
organizational units is handled in accordance with the procedures
prescribed in these regulations. Each supervisor should ensure that no
one employee is assigned unreasonable security responsibilities in
addition to usual administrative or functional duties.
[[Page 33]]
(d) Organizational. The Offices of Security in State, AID, and USIA
are responsible for physical, procedural, and personnel security in
their respective agencies. In the Department of State, the Office of
Communications (COMSEC) is responsible for communications security.
Sec. 9.4 Classification.
(a) When there is reasonable doubt about the need to classify
information, the information shall be safeguarded as if it were
``Confidential'' pending a determination about its classification by an
original classification authority. When there is reasonable doubt about
the appropriate classification level, the information shall be
safeguarded at the higher level pending the determination of its
classification level by an original classification authority.
Determinations hereunder shall be made within 30 days.
(b) Information may not be classified unless its disclosure
reasonably could be expected to cause damage to the national security.
Information may not be classified to conceal violations of law,
inefficiency, or administrative error; to prevent embarrassment to a
person, organization, or agency; to restrain competition; or to prevent
or delay the release of information that does not require protection in
the interest of national security.
(c) The President or an agency head or official designated under
section 1.2 (a)(2), 1.2 (b)(1), or 1.2 (c)(1) of the Order may
reclassify information previously declassified and disclosed if it is
determined in writing that (1) the information requires protection in
the interest of national security, and (2) the information may
reasonably be recovered. These reclassification actions shall be
reported promptly to the Director of ISOO.
(d) It is permitted to classify or reclassify information after an
agency has received a request for it under the Freedom of Information
Act or the Privacy Act, or the mandatory review provisions of the Order,
provided that such classification meets the requirements of the Order
and is accomplished personally and on a document-by-document basis by
the agency head, the deputy agency head, the senior official, or an
official with original Top Secret classification authority. Every effort
should be made to classify properly at the time of origin. When a
determination is made that a document requires classification or
reclassification, however, all holders of the document should be
notified and, in the Department of State, a copy of the classification
or reclassification memorandum should be sent to the Foreign Affairs
Information Management Center (FAIM). In addition, if the classification
or reclassification was done in any office other than the DAS/CDC, that
office should send a copy of the pertinent memorandum to the CDC.
(e) For the Department of State, these functions will be performed
by the DAS/CDC.
(f) For AID, the function will be performed by the Administrator.
(g) For USIA, the function will be performed by the Director of
Public Liaison.
(h) Information classified in accordance with these regulations
shall not be declassified automatically as a result of any unofficial
publication or inadvertent or unauthorized disclosure in the United
States or abroad of identical or similar information.
Sec. 9.5 Classification designations.
(a) Only three (3) designations of classification are authorized:
``Top Secret,'' ``Secret,'' and ``Confidential.''
(1) Top Secret. Information may be classified ``Top Secret'' if its
unauthorized disclosure could reasonably be expected to cause
exceptionally grave damage to the national security. This classification
should be used with the utmost restraint. Examples of ``exceptionally
grave damage'' include armed hostilities against the United States or
its allies; disruption of foreign relations vitally affecting the
national security; the compromise of vital national defense plans or
complex cryptologic and communications intelligence systems; the
revelation of sensitive intelligence operations; and the disclosure of
scientific or technological developments vital to national security.
(2) Secret. Information may be classified ``Secret'' if its
unauthorized disclosure could reasonably be expected to
[[Page 34]]
cause serious damage to the national security. This classification
should be used sparingly. Examples of ``serious damage'' include
disruption of foreign relations significantly affecting the national
security; significant impairment of a program or policy directly related
to the national security; revelation of significant military plans or
intelligence operations; and compromise of significant scientific or
technological developments relating to national security.
(3) Confidential. Information may be classified ``Confidential'' if
its unauthorized disclosure could reasonably be expected to cause damage
to the national security. Except as otherwise provided by statute, no
other terms shall be used to identify classified information. Terms or
phrases such as ``For Official Use Only'' or ``Limited Official Use''
shall not be used to identify national security information. No other
term or phrase shall be used in conjunction with these national security
information designations, such as ``Secret Sensitive'' or ``Agency
Confidential'' to identify national security information.
(b) Foreign government information. If classified by the foreign
government, the information shall either retain its original
classification or be assigned a U.S. classification designation which
will ensure a degree of protection at least equivalent to that required
by the entity that furnished the information. If not given a specific
classification by the foreign government, the information will be
assigned an appropriate classification dependent on the sensitivity of
the subject matter and the degree of damage its unauthorized disclosure
could reasonably be expected to cause to the national security.
Classification designations assigned by the U.S. agency shall be marked
on the foreign government information in accordance with the provisions
of Sec. 9.12.
Sec. 9.6 Requirements for classification.
With the exception of the Atomic Energy Act of 1954, as amended,
these regulations are the only basis for classifying information in the
agencies named herein. To be eligible for classification, information
must meet the two following requirements:
(a) First, it must deal with one of the following criteria:
(1) Military plans, weapons, or operations;
(2) The vulnerabilities or capabilities of systems, installations,
projects, or plans relating to the national security;
(3) Foreign government information;
(4) Intelligence activities (including special activities), or
intelligence sources or methods;
(5) Foreign relations or foreign activities of the United States;
(6) Scientific, technological, or economic matters relating to the
national security;
(7) U.S. Government programs for safeguarding nuclear materials or
facilities;
(8) Cryptology;
(9) Confidential sources; or
(10) Other categories of information that are related to the
national security and that require protection against unauthorized
disclosure as determined by the President or by agency heads or other
officials who have been delegated original classification authority by
the President. In the Department of State, the DAS/CDC, as the senior
official, shall recommend such other categories of information to the
Secretary. Any determination made under this subsection shall be
reported promptly to the Director of ISOO.
(b) Second, an official with original classification authority must
determine that the unauthorized disclosure of the information, either by
itself or in the context of other information, reasonably could be
expected to cause damage to the national security. Unauthorized
disclosure of foreign government information, the identity of a
confidential foreign source, or intelligence sources or methods is
presumed to cause damage to the national security.
(c) Certain information which would otherwise be unclassified may
require classification when combined or associated with other classified
or unclassified information. Classification on this basis shall be
supported by a written explanation that, at a minimum, shall be
maintained with the file or record copy of the information.
[[Page 35]]
Sec. 9.7 Classification authority.
(a) In the Department of State authority for original classification
of information as ``Top Secret'' may be exercised only by the Secretary
of State and those officials delegated this authority in writing, by
position or by name, by the Secretary or the DAS/CDC, as the senior
official, on the basis of their frequent need to exercise such
authority. Normally these will not be below the level of Deputy
Assistant Secretary in the Department; or Chief of Mission, Charge
d'Affairs, or principal officer at an autonomous consular post overseas.
(b) Authority for original classification of information as
``Secret'' may be exercised by officials with Top Secret authority, the
Administrator of AID, and the Director of USIA. This authority may be
delegated to such subordinate officials as the senior official in the
Department, the administrator of AID or the Director of USIA may
designate in writing, by position or by name, on the basis of their
frequent need to exercise such authority. Normally, these will not be
below the level of office director, section head (in a mission abroad),
country public affairs officer, or equivalent.
(c) Authority for original classification of information as
``Confidential'' may be exercised by officials with Top Secret or Secret
classification authority, and the President of the Overseas Private
Investment Corporation; and may be delegated to such subordinate
officials as the senior official in the Department, the Administrator of
AID, the Director of USIA, or the President of OPIC may designate in
writing, by position or by name, on the basis of their frequent need to
exercise such authority.
(d) Delegated original classification authority at any level may not
be redelegated.
(e) In the absence of an authorized classifier, the person
designated to act for that official may exercise the classifying
authority.
(f) In the Department of State the Classification/Declassification
Center, and in AID and USIA the Office of Security, shall maintain a
current listing, by classification designation, of the positions or
officials carrying original classification authority. The listing shall
be reviewed as needed to ensure that such delegations have been held to
a minimum, and that officials so designated have a continuing need to
exercise such authority.
Sec. 9.8 Limitations on classification.
A reference to classified documents which does not directly or
indirectly disclose classified information may not be classified or used
as a basis for classification.
Sec. 9.9 Duration of classification.
(a) Information shall be classified for as long as is required by
national security considerations. When it can be determined, a specific
date or event for declassification shall be set by the original
classification authority at the time the information is originally
classified.
(b) Information classified under predecessor orders that is not
subject to automatic declassification or that is marked for review
before declassification shall remain classified until reviewed for
declassification.
(c) Automatic declassification determinations under predecessor
orders shall remain valid unless the classification is extended by an
authorized official of the originating agency. These extensions may be
by individual documents or categories of information. The agency shall
be responsible for notifying holders of the information of such
extensions as soon as possible. The authority to extend the
classification of information subject to automatic declassification
under predecessor orders is limited to those officials who have
classification authority over the information and are designated in
writing to have original classification authority at the level of the
information to remain classified. Any decision to extend this
classification on other than a document-by-document basis shall be
reported to the Director of the ISOO.
Sec. 9.10 Derivative classification.
(a) Derivative classification is made by a person, not necessarily
having original classification authority, based on an originally
classified document or as directed by a classification guide.
[[Page 36]]
The derivative classifier may be one who reproduces, extracts, restates,
paraphrases, or summarizes classified materials, or applies markings in
accordance with source material or a classification guide.
(b) Derivative classifiers must respect original classification
markings. Only if the derived document, by means of paraphrasing,
excising, etc., has clearly lost the original grounds for
classification, may its original classification be removed or lowered.
(c) Subject to paragraph (b) of this section, markings on
derivatively classified material, including declassification
instructions, shall be carried forward from the original material, or
shall be as directed by the classification guide.
Sec. 9.11 Derivative classification guides.
(a) Agencies with original classification authority shall prepare
classification guides to facilitate the proper and uniform derivative
classification of information, except as provided in paragraph (e) of
this section.
(b) Each guide shall be approved personally and in writing by an
official who:
(1) Has program or supervisory responsibility over the information
or is the senior agency official who directs and administers the
information security program; and
(2) Is authorized to classify information originally at the highest
level of classification prescribed in the guide.
(c) Classification guides shall, at a minimum:
(1) Identify or categorize the elements of information to be
protected;
(2) State which classification level applies to each element or
category of information; and
(3) Prescribe declassification instructions for each element or
category of information in terms of (i) a period of time, (ii) the
occurrence of an event, or (iii) a notation that the information shall
not be automatically declassified without the approval of the
originating agency.
(d) Classification guides shall be reviewed at least every two years
and updated as necessary. Each agency shall maintain a list of its
classification guides in current use.
(e) Agency heads may, for good cause, grant and revoke waivers of
the requirement to prepare classification guides for specified classes
of documents or information. In the Department of State, the DAS/CDC, as
senior official, shall make recommendations to the Secretary concerning
such waivers. In AID, the Inspector General shall make recommendations
to the Administrator concerning such waivers. In USIA, the Director of
the Office of Public Liaison shall make recommendations to the Director
concerning such waivers. The Director of ISOO shall be notified of any
waivers. The decision to waive the requirement to issue classification
guides for specific classes of documents or information should be based,
at a minimum, on an evaluation of the following factors:
(1) The ability to segregate and describe the elements of
information;
(2) The practicality of producing or disseminating the guide because
of the nature of the information;
(3) The anticipated usage of the guide as a basis for derivative
classification; and
(4) The availability of alternative sources for derivatively
classifying the information in a uniform manner.
Sec. 9.12 Identification and markings.
Except in extraordinary circumstances as as provided in section
1.5(a) of the Order, or as indicated herein, the marking of paper
documents shall not deviate from the following prescribed formats. These
markings shall also be affixed to material other than paper documents,
or the originator shall provide holders or recipients of the information
with written instructions for protecting the information. These markings
include one of the three (3) classification levels defined in Sec. 9.5,
the identity of the original classification authority (except as noted
under paragraph (b)(ii) of this section) the agency and office of origin
(except as noted under paragraph (b)(ii) of this section) and the date
or event for declassification or the notation ``Originating Agency's
Determination Required'' (OADR).
[[Page 37]]
(a) Classification level. The markings ``Top Secret,'' ``Secret,''
and ``Confidential'' are used to indicate: That information requires
protection as national security information under the Order; the highest
level of classification contained in a document; and the classification
level of each page and, in abbreviated form, each portion of a document.
(1) Overall marking. The highest level of classification of
information in a document shall be marked in such a way as to
distinguish it clearly from the informational text. These markings shall
appear at the top and bottom of the outside of the front cover (if any),
on the title page (if any), on the first page, and on the outside of the
back cover (if any).
(2) Page marking. Each interior page of a classified document shall
be marked at the top and bottom either according to the highest
classification of the content of the page, including the designation
``UNCLASSIFIED'' when it is applicable, or with the highest overall
classification of the document.
(3) Portion-marking. Agency heads may waive the portion marking
requirement for specified classes of documents or information only upon
a written determination that (i) there will be minimal circulation of
the specified documents or information and minimal potential usage of
these documents or information as a source for derivative classification
determination; or (ii) there is some other basis to conclude that the
potential benefits of portion marking are clearly outweighed by the
increased administrative burdens. Unless this requirement has been
waived, each portion of a document, including subjects and titles, shall
be marked by placing a parenthetical designation immediately preceding
or following the text to which it applies. The symbols ``(TS)'' for Top
Secret, ``(S)'' for Secret, ``(C)'' for Confidential, and ``(U)'' for
Unclassified shall be used for this purpose. If the application of these
symbols is not practicable, the document shall contain a statement
sufficient to identify the information that is classified and the level
of such classification, and the information that is not classified. If
all portions of a document are classified at the same level, it may be
marked with a statement to that effect, e.g., ``Confidential--Entire
Text.'' If a subject or title requires classification, an unclassified
identifier may be assigned to facilitate reference.
(A) For the Department of State, the Secretary has waived the
portion marking requirement for the following classes of documents under
section 2001.5(a)(3)(i) of the Directive--documents which will have
minimal circulation and minimal potential usage as a source for
derivative classification:
(1) Documents containing Top Secret information;
(2) Action/informational memoranda prepared for Assistant
Secretaries and above;
(3) Instructions to posts and negotiating delegations;
(4) In-house research studies; and
(5) Inter and intra-office memoranda.
(B) The Secretary has also waived the portion marking requirement
for documents, both telegraphic and non-telegraphic, containing foreign
government information, under section 2001.5(a)(3)(ii) of the Directive.
(4) Omitted markings. Information assigned a level of classification
under predecessor orders shall be considered as classified at the level
of classification despite the omission of other required markings.
Omitted markings may be inserted on a document by the officials
specified in section 3.1(b) of the Order.
(b) Classification authority. If the original classifier is other
than the signer or approver of the document, the identity shall be shown
as ``CLASSIFIED BY'' (``identification of original classification
authority'').
(c) Agency and office of origin. If the identity of the originating
agency and office is not apparent on the face of the document, it shall
be placed below the ``CLASSIFIED BY'' line.
(d) Declassification and downgrading instructions. Declassification
and, as applicable, downgrading instructions shall be shown as follows:
(1) For information to be declassified automatically on a specific
date or event: ``DECLASSIFY ON: (date)'' or ``DECLASSIFY ON:
(description of event)''.
[[Page 38]]
(2) For information not to be automatically declassified:
``DECLASSIFY ON: Originating Agency Determination Required or OADR''.
(3) For information to be downgraded automatically on a specific
date or upon occurrence of a specific event: ``DOWNGRADE TO
(classification level) ON (date or description of event)''.
(e) Special markings--(1) Transmittal documents. A transmittal
document shall indicate on its face the highest classification of any
information transmitted by it. It shall also include the following or
similar instructions:
(i) For an unclassified transmittal document: ``Unclassified When
Classified Enclosure is Removed;'' or
(ii) For classified transmittal document: ``Upon Removal of
Attachments This Document Is (classification level of the transmittal
document standing alone).''
(2) Restricted Data or Formerly Restricted Data. Restricted Data and
Formerly Restricted Data information shall be marked in accordance with
regulations issued under the Atomic Energy Act of 1954, as amended.
(3) Intelligence sources or methods. Documents that contain
information relating to intelligence sources or methods shall include
the following markings unless otherwise prescribed by the Director of
Central Intelligence: ``WARNING NOTICE--INTELLIGENCE SOURCES OR METHODS
INVOLVED.''
(4) Foreign government information (FGI). Documents that contain FGI
shall include either the marking ``FOREIGN GOVERNMENT INFORMATION'', or
a marking that otherwise indicates that the information is foreign
government information. If the fact that information is foreign
government information must be concealed, the marking shall not be used
and the document shall be marked as if it were wholly of U.S. origin.
(5) Electrically transmitted information (messages, cables).
National security information that is transmitted electrically shall be
marked as follows:
(i) The highest level of classification shall appear before the
first line of text;
(ii) A ``Classified By'' line is not required; i.e., name and office
of classifier may be omitted; and
(iii) The duration of classification shall appear as follows:
(A) For information to be declassified automatically on a specific
date or event: ``DECL: (date)'' or ``DECL: (description of event).''
(B) For information not to be automatically declassified which
requires the originating agency's determination: ``DECL: OADR.''
(C) For information to be automatically downgraded: ``DNG
(abbreviation of classification level to which the information is to be
downgraded and date or description of event on which downgrading is to
occur).''
(iv) Portion marking shall be as prescribed in paragraph (a)(3) of
this section.
(v) Special markings as prescribed in section 2001.5(e) 2, 3, & 4 of
the Directive shall appear after the marking for the highest level of
classification. These include:
(A) Restricted Data or Formerly Restricted Data: Electrically
transmitted information containing Restricted Data or Formerly
Restricted Data shall be marked in accordance with regulations issued
under the Atomic Energy Act of 1954, as amended.
(B) Information concerning intelligence sources and methods;
``WNINTEL,'' unless proscribed by the Director of Central Intelligence.
(C) Foreign government information: ``FGI'' or a marking that
otherwise indicates that the information is foreign government
information. If the fact must be concealed, the marking shall not be
used and the message shall be marked as if it were wholly of U.S.
origin.
(vi) Paper copies of electrically transmitted messages shall be
marked as provided in paragraph (a) through (e) of this section.
(6) Changes in classification markings. When a change is made in the
level or the duration of classified information, all holders of record
shall be promptly notified. Holders shall alter the markings to conform
to the change, citing the authority for it. If the remarking of large
quantities of information is
[[Page 39]]
unduly burdensome, the holder may attach a change of classification
notice to the storage unit in lieu of the marking action otherwise
required. Items withdrawn from the collection for purposes other than
transfer for storage shall be marked promptly in accordance with the
change notice.
Sec. 9.13 Transferred material.
(a) In the case of classified information transferred in conjunction
with a transfer of functions, and not merely for storage purposes, the
receiving agency shall be deemed to be the originating agency for
purposes of the Order.
(b) In the case of classified information that is not officially
transferred as described in section 3.2(a) of the Order, but that
originated in an agency that has ceased to exist and for which there is
no successor agency, each agency in possession of such information shall
be deemed to be the originating agency for purpose of the Order. Such
information may be declassified or downgraded by the agency in
possession after consultation with any other agency that has an interest
in the subject matter of the information.
(c) Classified information accessioned into the National Archives of
the United States shall be declassified or downgraded by the Archivist
of the United States in accordance with the Order, the Directive, and
agency guidelines.
Sec. 9.14 Declassification and downgrading.
(a) General. Information should be declassified or downgraded as
soon as national security considerations permit. Information will be
protected in accordance with the provisions of the Order for as long as
it meets the classification requirements prescribed by these
regulations. Agencies shall coordinate their review of classified
information with other agencies or foreign governments that have a
direct interest in the subject matter.
(b) Authority to declassify or downgrade. Information shall be
declassified or downgraded by the official who authorized the original
classification, if that official is still serving in the same position;
the originator's successor; a supervisory official of either; or
officials delegated such authority in writing by the agency head or the
senior agency official designated pursuant to section 5.3(a)(1) of the
Order. In addition, if the Director of ISOO determines that information
is classified in violation of the Order, the Director may require the
agency which classified the information to declassify it. Any such
decision by the Director may be appealed to the National Security
Council. The information shall remain classified until a decision has
been made on the appeal.
(c) The agency shall maintain a current, unclassified, listing of
officials delegated declassification and downgrading authority.
Sec. 9.15 Systematic review for declassification guidelines.
(a) The agency may schedule classified records of permanent
historical or other value for bulk review for declassification and may
either perform such review itself, or may refer the records, together
with guidelines for declassification, to the Archivist of the United
States for review.
(b) For records of the Department of State, a sampling of classified
records of permanent value for a given period will be selected by the
Office of the Historian (PA/HO), and reviewed by the Systematic Review
Office of the Classification/Declassification Center. The Systematic
Review Office will prepare guidelines, which will be transmitted by the
Secretary of State to the Archivist of the United States, not later than
February 1, 1983, for use in reviewing the remainder of the permanently
valuable classified records of the given period when these records are
accessioned to the National Archives.
(c) AID will prepare guidelines, and transmit them to the Archivist
of the United States not later than February 1, 1983, for use in
reviewing permanently valuable classified records that have been
accessioned to the National Archives. The Records Management Branch,
Communications and Records Management Division, (M/SER/MO), is
designated as the office responsible for systematic review matters
within the agency. The Branch Staff will provide
[[Page 40]]
assistance to the Archivist in the systematic review process.
(d) For information concerning records of ICA, contact the agency's
Declassification Officer, Office of Administration.
(e) The agency guidelines will identify categories of information
which cannot be automatically declassified but must be reviewed item-by-
item to determine if there is a need for continued protection.
(f) These guidelines may be authorized by the agency head for use by
other agencies, in addition to the National Archives, having custody of
the originating agency's classified information of the period covered.
(g) These guidelines shall be reviewed and updated every five years,
unless earlier review is requested by the Archivist.
(h) For foreign government information, the agency will prepare by
February 1, 1983, specific guidelines for systematic review of foreign
government information in records accessioned to the National Archives,
and will revise such guidelines every five years or earlier as requested
by the Archivist.
(i) Special procedures. The agency shall be bound by the special
procedures for systematic review of classified cryptologic records and
classified records pertaining to intelligence activities (including
special activities) sources or methods issued by the Secretary of
Defense and the Director of Central Intelligence, respectively.
Sec. 9.16 Mandatory review.
Each agency shall review for declassification any classified
information requested, under the Mandatory Review provisions of the
Order except as noted in paragraph (d) of this section, provided that:
The requester is a U.S. citizen, resident alien, Federal agency, or
state or local government; the request describes the information with
sufficient specificity to enable the agency to locate the records
containing the information with a reasonable amount of effort; and the
agency receiving the request is the agency that originated the
information. When an agency receives a request for information in its
custody which was originated by another agency, it shall refer the
information and request to the originating agency for its review and
direct response to the requester.
(a) Foreign government information. Except as provided in this
paragraph, agencies shall process mandatory review requests for
classified records containing foreign government information in
accordance with Sec. 2001.32(a) of the ISOO Directive. The agency that
initially received or classified the foreign government information
shall be responsible for making a declassification determination after
consultation with concerned agencies. If the agency receiving the
request is not the agency that received or classified the foreign
government information, it shall refer the request to the appropriate
agency for action. Consultation with the foreign originator through
appropriate channels may be necessary prior to final action on the
request.
(b) Information requested shall be declassified if it no longer
requires protection under the provisions of the Order. It will then be
released to the requester unless withholding is otherwise authorized
under applicable law, such as the Freedom of Information or Privacy Act.
If the information requested cannot be declassified in its entirety, the
agency will make reasonable efforts to release those declassified
portions that constitute a coherent segment. Upon the denial of an
initial request, the agency shall also notify the requester of the right
of administrative appeal, which must be filed within 60 days of receipt
of the denial, and shall enclose a copy of the agency's regulations
governing the appeal process.
(c) Initial requests may be addressed to:
(1) Department of State: The Information and Privacy Coordinator,
Room 1239, Bureau of Administration, Department of State, Washington, DC
20520, with the envelope clearly marked MANDATORY REVIEW REQUEST;
(2) AID: Director, Office of Public Affairs for AID; Room 4899, 2201
C Street, NW., Washington, DC 20523; or
(3) USIA: Freedom of Information and Privacy Act Coordinator, Office
of Administration, 1776 Pennsylvania Avenue, NW., Washington, DC 20547.
[[Page 41]]
(d) In responding to mandatory review requests, agencies shall
either make a prompt declassification determination and notify the
requester accordingly, or inform the requester of the additional time
needed to process the case. Agencies shall make a final determination in
one year from the date of receipt, except in unusual circumstances.
(e) Information originated by a President, the White House Staff, by
committees, commissions, or boards appointed by the President, or others
specifically providing advice and counsel to a President or acting on
behalf of a President is exempted from mandatory review. However, the
Archivist of the United States has the authority to review, downgrade,
and declassify such information which is under the control of the
Administrator of General Services or the Archivist, for example in
Presidential Libraries, pursuant to section 2107, 2107 note, or 2203 of
title 44, United States Code. The Archivist will consult with agencies
having primary subject matter interest concerning the declassification
of the requested material. Any decision by the Archivist may be appealed
to the Director of ISOO, with the right of further appeal to the
National Security Council. The information shall remain classified
pending a prompt decision on the appeal.
(f) Requests for classified information not specifically identified
as being made under the Mandatory Review provisions of the Order will be
processed under the terms of the FOIA, the Privacy Act, or other
appropriate procedures.
(g) In considering requests for mandatory review, the agency may
decline to review again any request for material which has been recently
reviewed and denied, unless the request constitutes an appeal of an
initial denial.
(h) Mandatory review requests for cryptologic information and
information concerning intelligence activities (including special
activities) or intelligence sources or methods shall be processed solely
in accordance with special procedures issued by the Secretary of Defense
and the Director of Central Intelligence, respectively.
(i) In response to a request for information under the Freedom of
Information Act, the Privacy Act of 1974, or the mandatory review
provisions of the Order, an agency shall refuse to confirm or deny the
existence or non-existence of requested information whenever the fact of
its existence or non-existence is itself classifiable under these
regulations.
(j) For detailed regulations for the internal processing of
mandatory review initial requests and appeals see:
(1) Department of State: 5 FAM 900, 22 CFR 171.22 and 171.60;
(2) AID: AID Handbook 18, part III, chapter 11; or
(3) USIA: 22 CFR part 503.
Sec. 9.17 Schedule of fees.
For State, see 22 CFR 171.6 and 171.13; For AID, see 22 CFR 212.35;
or For USIA, see 22 CFR 503.6(c).
Sec. 9.18 Access by presidential appointees.
For procedures of the Department of State, see 22 CFR 171.25; For
procedures of AID, see 22 CFR 171.25; or For procedures of USIA, see 22
CFR part 503.
Appendix A to Part 9--Definitions
For the purpose of these security regulations, the following
definitions of terms shall apply.
Agency. A Federal agency, including department, agency, commission
etc, as defined in 5 U.S.C. 552(e).
Original classification. The initial determination that, in the
interest of national security, information requires protection against
unauthorized disclosure, together with a classification designation
signifying the level of protection required.
Original classification authority. The authority vested in an
executive branch official to make a determination of original
classification. A person having original classification authority may
also have the authority to prolong or restore classification.
Originating agency. The agency responsible for the initial
determination that particular information is classified.
Information. Any information or material, regardless of its physical
form or characteristics, that is owned by, produced by or for, or is
under the control of the U.S. Government.
National security information. Information that has been determined
pursuant to this Order or any predecessor Order to require protection
against unauthorized disclosure and that is so designated.
[[Page 42]]
Foreign government. Includes foreign governments and international
organizations of governments.
Foreign government information. Foreign government information is:
(1) Information provided by a foreign government or governments, an
international organization of governments, or any element thereof with
the expectation, expressed or implied, that the information, the source
of the information, or both, are to be held in confidence; or (2)
Information produced by the United States pursuant to or as a result of
a joint arrangement with a foreign government or governments or an
international organization of governments, or any element thereof,
requiring that the information, the arrangement, or both, are to be held
in confidence.
National security. The national defense or foreign relations of the
United States.
Confidential source. Any individual or organization that has
provided, or that may reasonably be expected to provide, information to
the United States on matters pertaining to the national security with
the expectation, expressed or implied, that the information or
relationship, or both, be held in confidence.
Classification guide. A document issued by an authorized original
classifier that prescribes the level of classification and appropriate
declassification instructions for specified information to be classified
derivatively.
Derivative classification. A determination that information is in
substance the same as information currently classified, together with
the designation of the level of classification.
Special access program. Any program imposing ``need-to-know'' or
access controls beyond those normally provided for access to
Confidential, Secret, or Top Secret information. Such a program may
include, but is not limited to, special clearance, adjudication, or
investigative requirements, special designations of officials authorized
to determine ``need-to-know,'' or special lists of persons determined to
have a ``need-to-know.'' It does not include special captions such as
NODIS, LIMDIS.
Intelligence activity. An activity that an agency within the
Intelligence Community is authorized to conduct pursuant to the Order.
Unauthorized disclosure. A communication or physical transfer of
classified information to an unauthorized recipient.
PART 9a_SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL
ENERGY PROGRAMS; RELATED MATERIAL--Table of Contents
Sec.
9a.1 Security of certain information and material related to the
International Energy Program.
9a.2 General policy.
9a.3 Scope.
9a.4 Classification.
9a.5 Declassification and downgrading.
9a.6 Marking.
9a.7 Access.
9a.8 Physical protection.
Authority: E.O. 11932 (41 FR 32691), E.O. 11652 (37 FR 5209,
National Security Council Directive of May 17, 1972 (37 FR 10053).
Source: 42 FR 46516, Sept. 16, 1977; 42 FR 57687, Nov. 4, 1977,
unless otherwise noted.
Sec. 9a.1 Security of certain information and material related to the
International Energy Program.
These regulations implement Executive Order 11932 dated August 4,
1976 (41 FR 32691, August 5, 1976) entitled ``Classification of Certain
Information and Material Obtained from Advisory Bodies Created to
Implement the International Energy Program.''
Sec. 9a.2 General policy.
(a) The United States has entered into the Agreement on an
International Energy Program of November 18, 1974, which created the
International Energy Agency (IEA). This program is a substantial factor
in the conduct of our foreign relations and an important element of our
national security. The effectiveness of the Agreement depends
significantly upon the provision and exchange of information and
material by participants in advisory bodies created by the IEA.
Confidentiality is essential to assure the free and open discussion
necessary to accomplish the tasks assigned to those bodies.
[[Page 43]]
(b) These regulations establish procedures for the classification,
declassification, storage, access, and dissemination of certain
information related to the International Energy Program.
Sec. 9a.3 Scope.
These regulations apply to all information and material classified
by the United States under the provisions of E.O. 11932, dated August 4,
1976 entitled ``Classification of Certain Information and Material
Obtained From Advisory Bodies Created To Implement The International
Energy Program.''
Sec. 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information
and material obtained pursuant to the International Energy Program and
which requires protection against unauthorized disclosure in the
interest of the national defense or foreign relations of the United
States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and
communications, in the possession of the United States Government which
has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of
the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C.
6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program
Relating to the International Energy Program (40 FR 16041, April 8,
1975), or (3) the Voluntary Agreement and Plan of Action to Implement
the International Energy Program (41 FR 13998, April 1, 1976), or (4)
Any similar Voluntary Agreement and Program entered into under the
Energy Policy and Conservation Act shall be reviewed by an officer of
the Department of State with classifying authority for the purpose of
determining whether such information or material should be classified
pursuant to E.O. 11652. If the officer determines that the information
or material warrants classification, he shall assign it the appropriate
classification. Such information or material may be exempted from the
General Declassification Schedule established by section 5 of Executive
Order No. 11652 if it was obtained by the United States on the
understanding that it be kept in confidence, or if it might otherwise be
exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the
Department of State shall follow the standards in E.O. 11652 and the
provisions of 22 CFR 9.5 through 9.8.
Sec. 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b)
shall govern declassification and downgrading of such information or
material.
Sec. 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the
marking of information or material classified under the provisions of
these regulations, except that the following stamp shall be used as
appropriate:
(Top Secret, Secret or Confidential)
Classified by: ------------------------------
Under Executive Order 11932
Exempt from General Declassification Schedule of E.O. 11652 Exemption
Category section 5B (2), (3), or (4); or E.O. 11932
Automatically Declassified on --------------
(effective date or event if any)
Exemption category ``E.O. 11932'' shall be used for information and
material obtained by the United States on e understanding that it be
kept in confidence and classified under E.O. 11932.
(b) If the information or material does not qualify for exemption
from the General Declassification Schedule, ordinary stamps and marking
may be used.
Sec. 9a.7 Access.
(a) Except as set forth in this section, access to information or
material classified under the provisions of these regulations shall be
governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in
connection with an advisory body to the IEA may be made available to
participants in such advisory body and their colleagues in accordance
with the following subsections.
(c) Such information and material classified ``Confidential'' may be
made available for review to participants in the meeting of the advisory
body in which it was developed or discussed.
[[Page 44]]
Where participants are acting as representatives of companies or of the
IEA Secretariat, such information and material may be made available for
review to employees or other representatives of, or counsel for, such
companies or Secretariat: Provided, That such person is determined by an
appropriate officer of the Department to be trustworthy and to have a
need for access to the particular classified information sought in
connection with the performance of duties in furtherance of the purposes
of the IEA, including the furnishing of legal advice to such
participants.
(d) Such information and material classified ``Confidential'' may be
left in the custody of such participants or other persons who may review
it for reasonable period of time: Provided, That an appropriate officer
of the Department determines that it will be protected from unauthorized
disclosure by adequate security safeguards. Such information or material
may not be reproduced by those permitted to review it pursuant to this
section without the written consent of an officer of the Department with
classifying authority.
(e) Such information and material classified other than
``Confidential'' under E.O. 11652 may be made available for review only
to participants in the meeting in which it was developed or discussed;
it must be reviewed in the presence of an official of the United States
Government with an appropriate security clearance granted by the
Department, and may not be left in the custody of such participants.
Sec. 9a.8 Physical protection.
Except as provided in Sec. 9a.7, the physical protection of
information or material classified under this regulation shall be
governed by the appropriate provisions of 22 CFR 9.45 through 9.49.
PART 9b_REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING
PASSES--Table of Contents
Sec.
9b.1 Press access to the Department of State.
9b.2 Press correspondents employed by United States media organizations.
9b.3 Press correspondents employed by foreign media organizations.
9b.4 Department of State building press pass for technical crews.
9b.5 Temporary Department of State press building passes.
9b.6 Grounds for denial, revocation, or non-renewal of Department of
State press building passes.
9b.7 Procedures for denial, revocation, or non-renewal of Department of
State press building passes.
9b.8 Term and renewal of Department of State press building passes.
Authority: 22 U.S.C. 2658.
Source: 49 FR 4465, Feb. 7, 1984, unless otherwise noted.
Sec. 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press
building passes shall have access to the Main State building identical
to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press
building passes:
(1) May enter and have access 24 hours a day, during regular working
hours, outside regular working hours, on weekends and on holidays,
without an appointment, to the reception area of the Diplomatic Lobby, C
Street Mezzanine area, press booths (Room 2310), press briefing room
(Room 2118), and when in operation, the Office of Press Relations (Room
2109).
(2) May enter and have access without an appointment, on the
basement level or on the first and second floors, to the cafeteria, post
office, banks, concessionaries, barber shop, dry cleaners and the
Foreign Affairs Recreation Association offices for the purposes for
which they are established and when they are in operation.
(3) May not escort non-passholders into the Department of State
building.
(c) Media correspondents, with or without a Department of State
press building pass, may enter areas above the second floor of the Main
State building only if the correspondent is invited by a Department
employee to attend a specific social or official function in an office
located above the second floor. Permission to enter areas above the
second floor is strictly limited to direct passage to and from the
[[Page 45]]
appointment location of the Department of State employee, or the office
or reception room where the function takes place.
(d) Possession of State Department press building pass does not
confer access to or other privileges at other Federal buildings. It is
not to be construed as official United States Government recognition,
approval or accreditation of a correspondent.
[54 FR 1686, Jan. 17, 1989]
Sec. 9b.2 Press correspondents employed by United States media organizations.
In order to obtain a Department of State press building pass, press
correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a
letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520, a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1686, Jan. 17, 1989]
Sec. 9b.3 Press correspondents employed by foreign media organizations.
In order to obtain a Department of State press building pass,
correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State,
Washington, DC 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent
based permanently and residing in the Washington, DC, metropolitan area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and
substantial assignments in connection with the Department of State as
evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, DC Embassy of the nation where the
organization is headquartered or from the Embassy of the United States
in the nation where the organization is headquartered attesting to the
existence of the news organization and the applicant's employment by
that organization. The Director of the Office of Press Relations may
accept a letter from another source attesting to the existence of such
news organizations and the applicant's employment if, in his or her
judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State,
Washington, DC 20520 a signed application and FORM DSP-97 for a press
building pass. Applicants must comply with instructions contained in
paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior
arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
[[Page 46]]
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
Sec. 9b.4 Department of State building press pass for technical crews.
Department of State press building passes are issued to members of
television and radio technical crews who provide technical support on a
daily basis for media correspondents assigned to the Department of
State. Members of technical crews who do not possess press passes, but
who provide technical support for media correspondents assigned to the
Department of State, may apply to the Office of Press Relations for a
visitor's pass valid for one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications
stated in Sec. Sec. 9b.2(a)(1) and 9b.2(a)(2) or Sec. Sec. 9b.3(a) and
9b.3(b), but does not have regular and substantial assignments in
connection with the Department of State may make arrangements with the
Office of Press Relations for the issuance of a visitor's pass valid for
one day.
[54 FR 1687, Jan. 17, 1989]
Sec. 9b.6 Grounds for denial, revocation, or non-renewal of Department
of State press building passes.
In consultation with the Bureau of Diplomatic Security and the
Office of the Legal Adviser, the Director of the Office of Press
Relations of the Department of State, may deny, revoke, or not renew the
Department of State press building pass of any media correspondent or
technician who:
(a) Does not meet the qualifications stated in Sec. Sec.
9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or Sec. Sec. 9b.3(a)(1),
9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-
renewal the correspondent or technician may not re-apply for a period of
one year unless there are material changes in meeting the
qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of
State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds
to believe might violate federal or state law or Department of State
regulations.
(d) Has been convicted of a felony (or a crime in a foreign country
that would be considered a felony if it were committed in the United
States).
(e) Fails to claim an approved authorization form for a State
Department press building pass after notification by the Office of Press
Relations following a period of three (3) months.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 15, 1989]
Sec. 9b.7 Procedures for denial, revocation, or non-renewal of Department
of State press building passes.
(a) If the Director of the Office of Press Relations, Department of
State, anticipates, after consultation with the Office of the Legal
Adviser, that in applying the standard set forth in Sec. 9b.6 a
Department of State press building pass might be denied, revoked or not
renewed, the media correspondent or technician will be notified in
writing by the Director of the basis for the proposed denial in as much
detail as the security of any confidential source of information will
permit. This notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or non-
renewal sent to the correspondent will also contain a statement advising
the correspondent of his or her right to respond to the proposed denial
and to rebut any factual basis supporting the proposed denial.
(c) The correspondent shall be allowed thirty (30) days from the
date of the mailing of the proposed denial, revocation or non-renewal
notification to respond in writing. The response shall consist of any
explanation or rebuttal
[[Page 47]]
deemed appropriate by the correspondent and will be signed by the
correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30
days, an extension for one additional 30-day period will be granted upon
receipt of the correspondent's written request for such an extension.
(e) At the time of the filing of the media correspondent's or
technician's written response to the notification of the proposed
denial, revocation or non-renewal, the correspondent or technician may
request, and will be granted, the opportunity to make a personal
appearance before the Director of the Office of Press Relations,
Department of State, for the purpose of personally supporting his/her
eligibility for a press pass and to rebut or explain the factual basis
for the proposed denial. The Director shall exercise, in consultation
with the Bureau of Diplomatic Security and the Office of the Legal
Adviser, final review authority in the matter. The correspondent or
technician may be represented by counsel during this appearance.
(f)(1) On the basis of the correspondent's or technician's written
and personal response and the factual basis for the proposed denial,
revocation or non-renewal, the Director of the Office of Press
Relations, Department of State, will consult with the Bureau of
Diplomatic Security and the Office of the Legal Adviser to determine
whether or not further inquiry or investigation concerning the issues
raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final
decision will be issued in conformity with paragraph (g) of this
section.
(3) If a decision is made that such further inquiry is necessary,
the Director of the Office of Press Relations of the Department of
State, the Bureau of Diplomatic Security and the Office of the Legal
Adviser will conduct such further inquiry as is deemed appropriate. At
the Director's discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of
this section.
(g) On the basis of the correspondent's or technician's written and
personal response, the factual basis for the proposed denial and the
additional inquiry provided for if such inquiry is conducted, the
Director of the Office of Press Relations of the Department of State
will consult with the Bureau of Diplomatic Security and the Office of
the Legal Adviser and expeditiously reach a final decision in accordance
with the standard set forth in Sec. 9b.6. If a final adverse decision
is reached, the correspondent or technician will be notified of this
final decision in writing. This notification will set forth as precisely
as possible, and to the extent that security considerations permit, the
factual basis for the denial in relation to the standard set forth in
Sec. 9b.6. This notification will be sent by registered mail and will
be signed by the Director of the Office of Press Relations of the
Department of State.
[49 FR 4465, Feb. 7, 1984, as amended at 54 FR 1687, Jan. 17, 1989]
[[Page 48]]
Sec. 9b.8 Term and renewal of Department of State press building passes.
(a) Department of State press building passes for U.S. citizens are
issued with three years' validity. Subject to positive completion of an
international background check, passes for non-U.S. citizens are issued
with one year's validity and may be renewed for three years.
Notwithstanding its initial validity, any press building pass that has
not been used for a twelve-month period, as recorded by the Bureau of
Diplomatic Security's turnstyle entry devices, will become invalid at
the end of that twelve-month period.
(b) For any valid passes issued before October 1, 1995, notification
shall be sent by the Department of State to the holder of the pass that
the pass has become invalid by reason of lack of use for 12-month
period. However, failure of the holder for any reason to receive such a
notification shall not affect the invalidity of the pass. Anyone whose
pass has become invalid may apply for a new pass in accordance with
Sec. Sec. 9b.2 through 9b.5.
[61 FR 3800, Feb. 2, 1996]
[[Page 49]]
SUBCHAPTER B_PERSONNEL
PART 10_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Subpart A_General Provisions
Sec.
10.735-101 Purpose.
10.735-102 Definitions.
10.735-103 Interpretation and advisory service.
10.735-104 Applicability to detailed employees.
10.735-105 Disciplinary action.
Subpart B_Ethical and Other Conduct and Responsibilities of Employees
10.735-201 General.
10.735-202 Gifts, entertainment, and favors.
10.735-203 Gifts from foreign governments.
10.735-204 Outside employment and other activity.
10.735-205 Financial interests.
10.735-206 Economic and financial activities of employees abroad.
10.735-207 Use of Government property.
10.735-208 Misuse of information.
10.735-209 Indebtedness.
10.735-210 Gambling, betting, and lotteries.
10.735-211 Activities relating to private organizations and politics.
10.735-212 Wearing of uniforms.
10.735-213 Recommendations for employment.
10.735-214 Transmitting communications and gifts.
10.735-215 General conduct prejudicial to the Government.
10.735-216 Miscellaneous statutory provisions.
10.735-217 Requesting exceptions from certain statutory prohibitions.
Subpart C_Ethical and Other Conduct and Responsibilities of Special
Government Employees
10.735-301 Conflicts of interest.
10.735-302 Use of Government employment.
10.735-303 Use of inside information.
10.735-304 Coercion.
10.735-305 Gifts, entertainment, and favors.
10.735-306 Miscellaneous statutory provisions.
Subpart D_Statements of Employment and Financial Interests
Sec.
10.735-401 Employees required to submit statements.
10.735-402 Employees not required to submit statements.
10.735-403 Employee's complaint on filing requirement.
10.735-404 Time and place of submission, and forms.
10.735-405 Information required.
10.735-406 Submission of position description.
10.735-407 Supplementary statements.
10.735-408 Review of statements and determination as to conflicts of
interest.
10.735-409 Confidentiality of employees' statements.
10.735-410 Effect of employees' statements on other requirements.
10.735-411 Disqualification procedures.
Authority: EO 11222 of May 8, 1965, as amended; 5 CFR 735.104.
Source: 43 FR 18976, May 2, 1978, unless otherwise noted.
Subpart A_General Provisions
Sec. 10.735-101 Purpose.
The maintenance of the highest standards of honesty, integrity,
impartiality, and conduct by Government employees and special Government
employees is essential to assure the proper performance of the
Government business and the maintenance of confidence by citizens in
their Government. The avoidance of misconduct and conflicts of interest
on the part of Government employees and special Government employees
through informed judgment is indispensable to the maintenance of these
standards. To accord with these concepts the regulations in this part
prescribe standards of conduct and responsibilities for employees and
special Government employees and require statements reporting employment
and financial interests.
Note: These regulations are codified in State 3 FAM 620, AID
Handbook 24, and ICA MOA V-A 550.
Sec. 10.735-102 Definitions.
(a) Agency means the Department of State (State), the Agency for
International Development (AID), and the International Communication
Agency (ICA).
(b) Employee means an officer or employee at home or abroad, of an
agency named in paragraph (a) of this section,
[[Page 50]]
but does not include a special Government employee or a member of the
Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and
Atmospheric Administration, or Public Health Service.
(c) Executive order means Executive Order 11222 of May 8, 1965, as
amended.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Special Government employee means an officer or employee of an
agency who is retained, designated, appointed, or employed to perform,
with or without compensation, for not to exceed 130 days during any
period of 365 consecutive days, temporary duties either on a full-time
or intermittent basis.
(f) Member of an employee's family means a spouse, minor child, or
other member of an employee's immediate household. For the purpose of
these regulations ``member of an employee's immediate or in-law
household'' means those blood relations who are residents of the
employee's household.
(g) Counselor means the agency's Counselor on Ethical Conduct and
Conflicts of Interest.
Sec. 10.735-103 Interpretation and advisory service.
(a) Counseling services on employee responsibilities and conduct are
available in each agency. These services are to be coordinated by a
Counselor appointed by the agency head. The Counselors are for State:
The Legal Adviser; for AID: The Deputy General Counsel; and for ICA: The
General Counsel. The Counselor serves as the agency's designee to the
Civil Service Commission on matters covered by the regulations in this
part and is responsible for coordination of the agency's counseling
services under paragraph (b) of this section and for assuring that
counseling and interpretations on questions of conflicts of interest and
other matters covered by these sections are available to deputy
counselors designated under paragraph (b) of this section.
(b) Each agency head may designate deputy counselors for the
agency's employees and special Government employees. Deputy Counselors
designated under this section must be qualified and in a position to
give authoritative advice and guidance to each employee and special
Government employee who seeks advice and guidance on questions of
conflicts of interest and on other matters covered by the regulations in
this part. A Washington employee or special Government employee should
address any inquiries concerning the regulations in this part to the
Counselor. At missions abroad the chief of each agency's establishment
designates an officer, preferably the legal officer where one is
available, to provide counseling services under the guidance of the
Counselor; a single officer may serve all agencies. An employee or
special Government employee serving abroad should submit inquiries to
the officer designated.
(c) Each agency shall periodically notify its employees and special
Government employees of the availability of counseling services and how
and when these services are available. A new employee or special
Government employee shall be notified at the time of entrance on duty.
Sec. 10.735-104 Applicability to detailed employees.
All the regulations of subparts A, B, and D of this part are
applicable to an employee of another U.S. Government agency who may be
serving on detail or assignment, formally or informally, on a
reimbursable or nonreimbursable basis through a Participating Agency
Service Agreement or otherwise, with an agency named in Sec. 10.735-
102(a). However, disciplinary action shall be taken against such an
employee only by the employing agency.
Sec. 10.735-105 Disciplinary action.
A violation of the regulations in this part by an employee or
special Government employee may be cause for appropriate disciplinary
action, including separation for cause, which may be in addition to any
penalty prescribed by law.
[[Page 51]]
Subpart B_Ethical and Other Conduct and Responsibilities of Employees
Sec. 10.735-201 General.
(a) Proscribed actions. An employee shall avoid any action, whether
or not specifically prohibited by the regulations in this part, which
might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the
integrity of the Government.
(b) Applicability to members of families of employees. A U.S.
citizen employee shall take care that certain responsibilities placed on
the employee are also observed by members of the employee's family.
These are the restrictions in regard to: Acceptance of gifts (Sec. Sec.
10.735-202 and 10.735-203); economic and financial activities abroad
(Sec. 10.735-206); teaching, lecturing, and writing (Sec. 10.735-
204(c)); participation in activities of private organizations (Sec.
10.735-211(c)); and political activities abroad (Sec. 10.735-211(g)).
Sec. 10.735-202 Gifts, entertainment, and favors.
(a) Acceptance prohibited. Except as provided in paragraphs (b),
(c), and (d) of this section, an employee shall not solicit or accept,
directly or indirectly, any gift, gratuity, favor, entertainment, loan,
or any other thing of monetary value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the employee's agency;
(2) Conducts operations or activities that are regulated by the
employee's agency;
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's official duty; or
(4) Appears to be offering the gift with the hope or expectation of
obtaining advantage or preferment in dealing with the U.S. Government
for any purpose.
(b) Acceptance permitted. The provisions of paragraph (a) of this
section do not apply to:
(1) Gifts, gratuities, favors, entertainments, loans, or any other
thing of monetary value received on account of close family or personal
relationships when the circumstances make it clear that it is that
relationship rather than the business of the persons concerned which is
the motivating factor;
(2) Acceptance of loans from banks or other financial institutions
on customary terms to finance proper and usual activities of employees,
such as home mortgage loans;
(3) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value;
(4) Acceptance of rates and discounts offered to employees as a
class.
(c) Acceptance permitted for State and ICA employees. For State and
ICA employees the provisions of paragraph (a) of this section do not
apply to: Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where an employee may
properly be in attendance.
(d) Acceptance permitted for AID employees. For AID employees the
provisions of paragraph (a) of this section do not apply in the
following situations:
(1) Acceptance of food, refreshments, or entertainment of nominal
value on infrequent occasions offered in the ordinary course of
luncheons, dinners, or other meetings and gatherings hosted by foreign
governments or agencies and officials thereof, embassies, and
international organizations, where the primary purpose of the function
is representational or social, rather than the transaction of business.
Where the primary purpose of the function is the transaction of
business, acceptance is not permitted, except if there is justification
and reporting in accordance with paragraph (d)(4) of this section.
(2) Participation in widely attended lunches, dinners, and similar
gatherings sponsored by industrial, technical, and professional
associations for
[[Page 52]]
the discussion of matters of mutual interest to Government and industry.
(3) Acceptance of food, refreshments, or entertainment in the
unusual situation where the employee, by virtue of the location of the
person, firm, corporation, or other entity, or the regulations governing
its dining facilities, finds it inconvenient or impracticable not to
accept the offer. Each case of acceptance shall be reported in
accordance with the requirement of paragraph (d)(4) of this section. In
no other case shall employees accept food, refreshments, or
entertainment from private corporations, entities, firms, or individual
contractors at occasions which are other than widely attended functions
whose purposes are unrelated to Agency business.
(4) In exceptional circumstances where acceptance of food,
refreshments, or entertainment is not authorized by paragraphs (d) (1),
(2), and (3) of this section, but where, in the judgment of the
individual concerned, the Government's interest would be served by such
acceptance directly or indirectly from any foreign government, agency,
or official thereof or a private person, firm, corporation, or other
entity which is engaged or is endeavoring to engage in business
transactions of any sort with AID, an employee may accept the offer:
Provided, That a report of the circumstances, together with the
employee's statement as to how the Government's interests were served,
will be made within 48 hours to the employee's supervisor, or, if the
employee is serving abroad, or on temporary duty abroad, to the Mission
Director.
(e) Gifts to superiors. An employee shall for a gift to an official
superior, make a donation as a gift to an official superior, or accept a
gift from an employee receiving less pay than the employee (5 U.S.C.
7351). However, this paragraph does not prohibit a voluntary gift of
nominal value or donation in a nominal amount made on a special occasion
such as marriage, illness, or retirement.
(f) Neither this section nor Sec. 10.735-204 precludes an employee
from receipt of bona fide reimbursement, unless prohibited by law, for
expenses of travel and such other necessary subsistence as is compatible
with this part for which no Government payment or reimbursement is made.
However, this paragraph does not allow an employee to be reimbursed, or
payment to be made on the employee's behalf, for excessive personal
living expenses, gifts, entertainment, or other personal benefits, nor
does it allow an employee to be reimbursed by a person for travel on
official business under agency orders when reimbursement is proscribed
by Decision B-128527 of the Comptroller General dated March 7, 1967.
Sec. 10.735-203 Gifts from foreign governments.
An employee shall not accept a gift, present, decoration, or other
thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342, and the regulations
promulgated thereunder pursuant to E.O. 11320, 31 FR 15789. These
regulations are set forth in part 3 of this title (as added, 32 FR 6569,
Apr. 28, 1967), and in 3 FAM 621.
Sec. 10.735-204 Outside employment and other activity.
(a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of Government employment. Incompatible
activities include but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interest; or
(2) Outside employment which tends to impair the employee's mental
or physical capacity to perform Government duties and responsibilities
in an acceptable manner.
(b) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for the employee's services
to the Government (18 U.S.C. 209).
(c) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, the Executive order, this part,
or the agency regulations. However, an employee
[[Page 53]]
shall not, either for or without compensation, engage in teaching,
lecturing, or writing including teaching, lecturing, or writing for the
purpose of the special preparation of a person or class of persons for
an examination of the Civil Service Commission or Board of Examiners for
the Foreign Service, that is dependent on information obtained as a
result of Government employment, except when that information has been
made available to the general public or will be made available on
request or when the agency head gives written authorization for use of
nonpublic information on the basis that the use is in the public
interest. In addition, an employee who is a Presidential appointee
covered by section 401(a) of the Executive order shall not receive
compensation or anything of monetary value for any consultation,
lecture, discussion, writing, or appearance the subject matter of which
is devoted substantially to the responsibilities, programs, or
operations of the employee's agency, or which draws substantially on
official data or ideas which have not become part of the body of public
information. Employees are referred to the detailed rules of their
agency with respect to clearance and acceptance of compensation (3 FAM
628; for AID see Handbook 18).
(d) [Reserved]
(e) An employee shall not render any services, whether or not
compensated, to any foreign government, state, province, or
semigovernmental agency, or municipality of any foreign government, or
to any international organization of states. However, this shall not
prevent the rendering of such services by employees acting on behalf of
the United States. Nor shall this provision prevent the rendering of
services to an international organization of states when otherwise
consistent with law and when authorized by the appropriate officer. The
appropriate officer for State is the Director General and Director of
Personnel; for AID the Assistant Administrator for Program and
Management Services; and for ICA the Director of Personnel Services.
(f) [Reserved]
(g) This section does not preclude an employee from:
(1) Participation in the activities of national or State political
parties not proscribed by law.
(2) Participation in the affairs of or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
Sec. 10.735-205 Financial interests.
(a) An employee shall not: (1) Have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially with the employee's Government duties and
responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through
Government employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law or the regulations in this part.
(c) Pursuant to the provision of 18 U.S.C. 208(b) the following
described financial interests of an employee are hereby exempted from
the requirements of 18 U.S.C. 208(a) and 208(b)(1) as being too remote
or too inconsequential to affect the integrity of the services of an
employee. The exemption applies to the financial interests held directly
by an employee, by the employee's spouse or minor child whether
individually or jointly with the employee, or by an employee and any
partner or partners as joint assets of the partnership:
(1) Investments in State and local government bonds; and stocks,
bonds, or policies in a mutual fund, investment company, bank or
insurance company, provided that in the case of a mutual fund,
investment company, or bank, the fair value of such stock or bond
holding does not exceed one percent of the value of the reported assets
of the mutual fund, investment company, or bank. In the case of a mutual
fund or investment company, this exemption applies only where the assets
of the fund or company are diversified;
[[Page 54]]
it does not apply where the fund or company specializes in a particular
industry or commodity.
(2) Interest in an investment club or other group organized for the
purpose of investing in equity or debt securities: Provided, That the
fair value of the interest involved does not exceed $10,000 and that the
interest does not exceed one-fourth of the total assets of the
investment club or group. Where an employee covered by this exemption is
a member of a group organized for the purpose of investing in equity or
debt securities, the interest of the employee in any enterprise in which
the group holds securities shall be based upon the employee's equity
share of the holdings of the group in that enterprise.
(3) If an employee, or the employee's spouse or minor child has a
present beneficial interest or a vested remainder interest under a
trust, the ownership of stocks, bonds, or other corporate securities
under the trust will be exempt to the same extent as provided in
paragraphs (c)(1) and (2) of this section for the direct ownership of
such securities. The ownership of bonds other than corporate bonds, or
of shares in a mutual fund or regulated investment company, under the
trust will be equally exempt and to the same extent as under paragraphs
(c) (1) and (2) of this section.
(4) If an employee is an officer, director, trustee, or employee of
an educational institution, or if the employee is negotiating for, or
has an arrangement concerning prospective employment with such an
institution, a direct financial interest which the institution has in
any matter will not itself be exempt, but any financial interest that
the institution may have in the matter through its holdings of
securities issued by business entities will be exempt: Provided, The
employee is not serving as a member of the investment committee of the
institution or is not otherwise advising it on its investment portfolio.
(5) An employee may continue to participate in a bona fide pension,
retirement, group life, health or accident insurance plan, or other
employee welfare or benefit plan that is maintained by a business or
nonprofit organization by which the employee was formerly employed. Such
financial interest in that organization will be exempt, except to the
extent that the welfare or benefit plan is a profit-sharing or stock-
bonus plan and the employee's financial interest thereunder exceeds
$10,000. This exemption extends also to any financial interests that the
organization may have in other business activities.
(d) Nothing in this part shall be deemed to prohibit an employee
from acting, with or without compensation, as agent or attorney for the
employee's parents, spouse, child, or any person for whom, or for any
estate for which, the employee is serving as guardian, executor,
administrator, trustee, or other personal fiduciary, except in those
matters in which the employee has participated personally and
substantially as a Government employee, through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, or which are the subject of the employee's official
responsibility, as defined in 18 U.S.C. 202(b): Provided, The head of
the employee's division approves in writing.
Sec. 10.735-206 Economic and financial activities of employees abroad.
(a) Prohibitions in any foreign country. A U.S. citizen employee
abroad is specifically prohibited from engaging in the activities listed
below in any foreign country.
(1) Speculation in currency exchange.
(2) Transactions at exchange rates differing from local legally
available rates, unless such transactions are duly authorized in advance
by the agency.
(3) Sales to unauthorized persons (whether at cost or for profit) of
currency acquired at preferential rates through diplomatic or other
restricted arrangements.
(4) Transactions which entail the use, without official sanction, of
the diplomatic pouch.
(5) Transfers of funds on behalf of blocked nationals, or otherwise
in violation of U.S. foreign funds and assets control.
(6) Independent and unsanctioned private transactions which involve
an employee as an individual in violation of
[[Page 55]]
applicable control regulations of foreign governments.
(7) Acting as a intermediary in the transfer of private funds from
persons in one country to persons in another country, including the
United States.
(8) Permitting use of one's official title in any private business
transactions or in advertisements for business purposes.
(b) Prohibitions in country of assignment. (1) A U.S. citizen
employee shall not transact or be interested in any business or engage
for profit in any profession or undertake other gainful employment in
any country or countries to which the employee is assigned or detailed
in the employee's own name or through the agency of any other person;
exceptions may be made with respect to chiefs of mission only in writing
by the Deputy Under Secretary for Management and for all other State
employees by the appropriate chief of mission; for AID employees by the
assistant administrator of the regional bureau or head of the
nonregional organization, as appropriate; and for ICA employees by the
Director of Personnel Services, or their designees (see 22 U.S.C. 805).
(2) A U.S. citizen employee shall not invest in real estate or
mortgages on properties located in the employee's country of assignment.
The purchase of a house and land for personal occupancy is not
considered a violation of this paragraph.
(3) A U.S. citizen employee shall not invest money in bonds, shares
or stocks of commercial concerns headquartered in the country of
assignment or conducting a substantial portion of their business in such
country. Such investments, if made prior to knowledge of assignment or
detail to such country or countries, may be retained during such
assignment or detail when approved in writing by the appropriate
official named in paragraph (b)(1) of this section. If retention is
authorized, such stocks, shares, or bonds may not be sold while the
employee is assigned or detailed to the country or countries, unless the
agency approved the sale in writing.
(4) A U.S. citizen employee shall not sell or dispose of personal
property, including automobiles, at prices producing profits to the
employee which result primarily from import privileges derived from the
employee's official status as an employee of the U.S. Government.
Employees of State and ICA are referred to Foreign Affairs Manual
Circular 378; for AID see Handbook 23, Attachment 1B.
(c) Acceptance of employment by members of family abroad. Family
members of Foreign Service personnel may accept gainful employment in a
foreign country unless such employment (1) would violate any law of such
country or of the U.S.; or (2) could damage the interests of the U.S.,
as certified in writing to the family member by the Chief of the U.S.
Diplomatic Mission in such country. A copy of such certification will be
sent to the Family Liaison Office (M/FLO), Department of State. Family
members accepting employment abroad should bear in mind that they may
not enjoy immunity from judicial process and would be subject to the
payment to taxes derived from their nondiplomatic employment.
(d) Business activities of non-U.S. citizen employees. A non-U.S
citizen employee abroad may engage in outside business activities with
the prior approval of the head of the overseas establishment on the
basis of the standards expressed in Sec. 10.735-204(a).
Sec. 10.735-207 Use of Government property.
An employee shall not directly or indirectly use, or allow the use
of Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
the employee.
Sec. 10.735-208 Misuse of information.
For the purpose of furthering a private interest, an employee shall
not, except as provided in Sec. 10.735-204(c) directly or indirectly
use, or allow the use of, official information obtained through or in
connection with Government employment which has not been made available
to the general public.
[[Page 56]]
Sec. 10.735-209 Indebtedness.
An employee shall pay each just financial obligation in a proper and
timely manner, especially one imposed by law such as Federal, State, or
local taxes. For the purpose of this section, a ``just financial
obligation'' means one acknowledged by the employee or reduced to
judgement by a court or one imposed by law such as Federal, State, or
local taxes, and ``in a proper and timely manner'' means in a manner
which the agency determines does not, under the circumstances, reflect
adversely on the Government as the employer. In the event of dispute
between an employee and an alleged creditor, this section does not
require an agency to determine the validity or amount of the disputed
debt.
Sec. 10.735-210 Gambling, betting, and lotteries.
An employee shall not participate, while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities:
(a) Necessitated by an employee's law enforcement duties; or
(b) Under section 3 of Executive Order 10927 and similar agency-
approved activities.
Sec. 10.735-211 Activities relating to private organizations and politics.
(a) Definition. For the purpose of this section, the term private
organization denotes any group of persons or associations organized for
any purpose whatever, except an organization established by the
Government of the United States, or officially participated in by State,
AID, or ICA.
(b) Participation in activities of employee organizations. An
employee may join or refrain from joining employee organizations or
associations without interference, coercion, restraint, or fear of
discrimination or reprisal.
(c) Participation in activities of private organizations. In
participating in the program and activities of any private organization,
an employee shall make clear that the employee's agency has no official
connection with such organization and does not necessarily sponsor or
sanction the viewpoints which it may express.
(d) Legal restrictions on membership in certain organizations. An
employee shall not have membership in any organization that advocates
the overthrow of our constitutional form of Government in the United
States, knowing that such organization so advocates (5 U.S.C. 7311, 18
U.S.C. 1918).
(e) Private organizations concerned with foreign policy or other
matters of concern to agencies. (1) Limitation on participation. When a
private organization is concerned primarily with foreign policy or
international relations or other matters of concern to an employee's
agency, an employee shall limit connection therewith as follows: Unless
specifically permitted to do so, the employee may not serve as advisor,
officer, director, teacher, sponsor, committee chairman, or in any other
official capacity or permit the employee's name to be used on a
letterhead, in a publication, in an announcement or news story, or at a
public meeting, regardless of whether the employee's official title or
connection is mentioned. The provisions of this section are not intended
to prohibit the normal and active participation of an employee in
professional organizations such as the American Political Science
Association, the American Economic Association, the American Foreign
Service Association, and similar organizations, since such participation
is in the interest of both the employee and the Government. Employees
are expected, however, to exercise discretion in such activities and are
held personally accountable for any improper use of their relationship
with State, AID, and ICA.
(2) Request for special permission. Special permission to assume or
continue a connection prohibited by paragraph (e)(1) of this section may
be granted in cases where the public interest will not be adversely
affected. To request such permission, or to determine whether the
provisions are applicable to a particular case, the employee shall
address a memorandum setting forth all of the circumstances
[[Page 57]]
to the appropriate officer. The appropriate officer is for State, the
Director General and Director of Personnel; for AID, the Senior
Personnel Officer under whose jurisdiction the employee serves; and for
ICA, the Director of Personnel Services.
(3) Application to senior officers. Because of the prominence
resulting from their official positions, chiefs of mission and other
senior officers should recognize the particular bearing of the
provisions of paragraph (e)(1) of this section upon their activities.
They should restrict association with any organizations involving
foreign nations and the United States to simple membership and should
not accept even honorary office in such organizations except with the
specific prior approval as provided in paragraph (e)(2) of this section.
(f) Private organizations not concerned with foreign policy. When
the purpose and program of the organization do not fall primarily within
the field of foreign policy or international relations, the employee's
activity is limited only to the following extent:
(1) The employee's official title or connection may be used to
identify the employee, as in a civic association election, but may not
be used on a letterhead, in a publication, or otherwise so as to employ
the prestige of the U.S. Government to enhance that of the organization
or to imply official sponsorship.
(2) When the employee is a representative of an association
consisting of State, AID, or ICA employees, or of a group of such
employees, the employee's connection with the agency may be freely used
so long as there is no implication of official sponsorship beyond that
which may have been officially approved.
(g) Political activities abroad. A U.S. citizen employee shall not
engage in any form of political activity in any foreign country.
(h) Activities relating to U.S. politics. The law (5 U.S.C. 7324,
formerly the Hatch Act) provides in summary that it is unlawful for any
Federal employee of the executive branch to use the employee's official
authority or influence for the purpose of interfering with an election
or affecting the result thereof, or to take any active part in political
management or in political campaigns. These restrictions do not in any
way affect the right of a Federal employee (1) to vote as the employee
chooses; (2) to express personal political opinions, except as part of a
campaign; (3) to make or refrain from making contributions to political
organizations, provided contributions are not made in a Federal building
or to another Federal officer or employee (see 18 U.S.C. 602, 603, 607,
and 608); (4) to participate in local, nonpartisan activities.
Sec. 10.735-212 Wearing of uniforms.
(a) An employee of the Foreign Service may not wear any uniform
except as may be authorized by law or as a military commander may
require civilians to wear in a theater of military operations (22 U.S.C.
803). When an employee is authorized by law or required by a military
commander of the United States to wear a uniform, care shall be taken
that the uniform is worn only at authorized times and for authorized
purposes.
(b) Conventional attire worn by chauffeurs, elevator operators, and
other miscellaneous employees are not considered uniforms within the
meaning of this section except that, for ICA, MOA VII 917.2b prohibits
the purchase from Agency funds of uniforms or any item of personal
wearing apparel other than special protective clothing.
Sec. 10.735-213 Recommendations for employment.
(a) Making recommendations in official capacity. In general, an
employee shall not, in the employee's official capacity, make any
recommendations in connection with the employment of persons unless the
position concerned are with the Government of the United States and the
recommendations are made in response to an inquiry from a Government
official authorized to employ persons or to investigate applicants for
employment. A principal officer in answer to a letter of inquiry from
outside the U.S. Government concerning a former employee assigned to the
post, may state the length of time the person was employed at the post
and the fact that the former employee
[[Page 58]]
performed duties in a satisfactory manner, if such is the case. Also, an
AID Mission Director may provide names of persons or firms from which a
cooperating government may select an employee or firm to be used in some
phase of the AID program.
(b) Making personal recommendations. An employee may make a personal
recommendation in connection with the employment of any person,
including present or former employees, their spouses and/or members of
their families, except for employment in a position of trust or profit
under the government of the country to which the employee is accredited
or assigned (22 U.S.C. 806(b)): Provided, That the employee does not
divulge any information concerning the person derived from official
sources. When a letter of introduction or recommendation is written by
an employee, precautionary measures should be taken to prevent its being
construed as official correspondence and used by an unscrupulous
individual to impress American or foreign officials. Accordingly,
official stationery should not be used for this purpose. The letter may,
however, show the recommending employee's status as an employee of the
U. S. Government. Every personal letter of recommendation shall contain
a statement clearly indicating that the letter constitutes a personal
recommendation and is not to be construed as an official recommendation
by the Government of the United States.
Sec. 10.735-214 Transmitting communications and gifts.
(a) Correspondence. In corresponding with anyone other than the
proper official of the United States with regard to the public affairs
of a foreign government, an employee shall use discretion and judgment
to ensure that neither the United States nor the employee will be
embarrassed or placed in a compromising position (22 U.S.C. 806(a)).
(b) Communications. An employee shall not act as an agent for the
transmission of communications from private persons or organizations in
foreign countries to the President or to Federal, State, or municipal
officials in the United States. A chief of mission may, however, accept
communications of this nature and forward them to the Department of
State for such further action as may be appropriate, whenever the chief
of mission determines it to be clearly in the public interest to do so.
(c) Gifts. An employee shall not act as an agent for the
transmission of gifts from persons or organizations in foreign countries
to the President or to Federal, State, or municipal officials of the
United States. However, principal officers may, according to regulations
prescribed by the President, accept, and forward to the Office of
Protocol of the Department of State, gifts made to the United States or
to any political subdivision thereof by the Government to which they are
accredited or from which they hold exequaturs. Employees shall not,
without the approval of the Secretary of State, transmit gifts from
persons or organizations in the United States to heads or other
officials of foreign states.
Sec. 10.735-215 General conduct prejudicial to the Government.
(a) An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
(b) An employee abroad is also obligated to obey the laws of the
country in which the employee is present.
(c) An employee shall observe the requirements of courtesy,
consideration, and promptness in dealing with or serving the public.
Sec. 10.735-216 Miscellaneous statutory provisions.
Each employee shall become acquainted with each statute that relates
to the employee's ethical and other conduct as an agency employee of and
of the Government.
(a) The attention of employees is directed to the following
statutory provisions:
(1) House Concurrent Resolution 175, 85th Congress, 2d session, 72
Stat. B12, the ``Code of Ethics for Government Service.''
(2) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
[[Page 59]]
(3) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(4) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918). \1\
---------------------------------------------------------------------------
\1\ The Courts have stricken from the Code any prohibition against
assertion of the right to strike on the basis that such an assertion is
a protected right under the First Amendment to the Constitution.
---------------------------------------------------------------------------
(5) The prohibitions against (i) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (ii) the disclosure of
confidential information (18 U.S.C. 1905).
(6) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(7) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(8) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(9) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(10) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(11) The prohibition against mutilating or destroying a public
record (18 U.S.C. 2071).
(12) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(13) The prohibition against (i) embezzlement of Government money or
property (18 U.S.C. 641); (ii) failing to account for public money (18
U.S.C. 643); and (iii) embezzlement of the money or property of another
person in the possession of an employee by reason of the employee's
employment (18 U.S.C. 654).
(14) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(15) The prohibition against political activities in subchapter III
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(16) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(17) The prohibition against discrimination because of politics,
race, religion, or color (22 U.S.C. 807).
(18) The prohibition against officers or employees accepting any
honorarium in excess of $2,000 or honoraria aggregating more than
$25,000 in any calendar year (sec. 112, Pub. L. 94-283, 90 Stat. 494 (2
U.S.C. 441i)).
(b) The attention of consular officers is directed to the following
statutory provisions:
(1) The provisions relating to the duty to account for fees received
(22 U.S.C. 9, 812, 1194), liability for exaction of excessive fees (22
U.S.C. 1182, 1189), and liability for failure to collect proper fees (22
U.S.C. 1190).
(2) The provisions relating to liability for failure to give bond
and for embezzlement (22 U.S.C. 1179), liability for embezzlement of
fees or effects of American citizens (22 U.S.C. 1198), and liability for
falsely certifying as to the ownership of property (22 U.S.C. 1200).
(3) The prohibition against profiting from dealings with discharged
seamen (22 U.S.C. 1187).
(4) The provision relating to liability for failure to collect the
wages of discharged seamen (46 U.S.C. 683).
Sec. 10.735-217 Requesting exceptions from certain statutory prohibitions.
(a) Any employee desiring a written advance determination that the
prohibitions of 18 U.S.C. 208(a) do not apply will prepare a written
request addressed to an appropriate agency official. For purposes of
this section, the appropriate agency official is: The Deputy Under
Secretary for Management for State, the Administrator for AID, and the
Director for ICA. The request will describe the particular matter giving
rise to the conflict of interest, the nature and extent of the
employee's anticipated participation in the particular matter, and the
exact nature and amount of the financial interest related to the
particular matter.
(b) The employee will forward the request to the appropriate agency
official through the immediate supervisor and the assistant agency head
in charge of the organizational agency component to which the employee
is assigned, or will be assigned in the case of a new employee. The
assistant agency head
[[Page 60]]
will forward the written request to the appropriate agency official
through the agency's Counselor. The Counselor shall attach a written
opinion to the request, prepare a recommended written determination in
final form for signature by the appropriate agency official, and shall
forward all documents to that official.
(c) The determination of the appropriate agency official will be
sent to the employee by the Counselor. If the appropriate agency
official grants the requested exception, the original written advance
determination will be sent to the employee. A duplicate original shall
be retained among the appropriate agency records under the control of
the Counselor.
Subpart C_Ethical and Other Conduct and Responsibilities of Special
Government Employees
Sec. 10.735-301 Conflicts of interest.
Special Government employees are subject to the conflicts of
interest statutes (18 U.S.C. 202). An explanation of these conflicts of
interest statutes their effects upon special Government employees and
guidelines for obtaining and utilizing the services of special
Government employees are in appendix C of chapter 735 of the Federal
Personnel Manual. A special Government employee shall not have a direct
or indirect financial interest that conflicts substantially, or appears
to conflict substantially, with Government duties and responsibilities.
Sec. 10.735-302 Use of Government employment.
A special Government employee shall not use Government employment
for a purpose that is, or gives the appearance of being, motivated by
the desire for private gain for the employee or another person,
particularly one with whom the employee has family, business, or
financial ties.
Sec. 10.735-303 Use of inside information.
(a) A special Government employee shall not use inside information
obtained as a result of Government employment for private gain for the
employee or another person either by direct action on the employee's
part or by counsel, recommendation, or suggestion to another person,
particularly one with whom the employee has family, business, or
financial ties. For the purpose of this section, ``inside information''
means information obtained under Government authority which has not
become part of the body of public information.
(b) A special Government employee may engage in teaching, lecturing,
or writing that is not prohibited by law, Executive Order 11222 or the
restrictions in this part; however, a special Government employee shall
not, either for or without compensation, engage in teaching, lecturing,
or writing that is dependent on information obtained as a result of his
Government employment, except when that information has been made
available to the general public or will be made available, or when the
head of the agency gives written authoritzation for the use of nonpublic
information on the basis that the use is in the public interest. A
special Government employee who wishes to request the agency head to
authorize the use of nonpublic information should submit such request
through the Counselor. The request should contain complete information
concerning the nonpublic information which the employee wishes to
disclose and should contain in addition an indication of the intended
use of such information and how disclosure of it would be in the public
interest.
Sec. 10.735-304 Coercion.
A special Government employee shall not use Government employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to the employee or another person, particularly one
with whom the employee has family, business, or financial ties.
Sec. 10.735-305 Gifts, entertainment, and favors.
(a) Except as provided in paragraph (b) of this section, a special
Government employee, while so employed or in connection with Government
employment, shall not receive or solicit from a person having business
with the
[[Page 61]]
employee's agency anything of value as a gift, gratuity, loan,
entertainment, or favor for the employee or another person, particularly
one with whom the employee has family, business or financial ties.
(b) The exceptions to the prohibition against the acceptance of
gifts which have been granted to employees in Sec. 10.735-202 (b), (c),
and (d) are also applicable to special Government employees.
(c) A special Government employee shall not accept a gift, present,
decoration, or other thing from a foreign government unless authorized
by Congress as provided by the Constitution and in 5 U.S.C. 7342, and
the regulations promulgated thereunder pursuant to E.O. 11320; 31 FR
15789. These regulations are set forth in part 3 of this title (as
added, 32 FR 6569, April 28, 1967), and in 3 FAM 621.
(d) A special Government employee shall avoid any action, whether or
not specifically prohibited by these sections on special Government
employees, which might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the
integrity of the Government.
Sec. 10.735-306 Miscellaneous statutory provisions.
Each special Government employee shall become acquainted with each
statute that relates to the employee's ethical and other conduct as a
special Government employee of an agency and of the Government. The
attention of special Government employees is directed to the statutes
listed in Sec. 10.735-216.
Subpart D_Statements of Employment and Financial Interests
Sec. 10.735-401 Employees required to submit statements.
The following employees of State, AID, and ICA shall submit
statements of employment and financial interests:
(a) All special Government employees including experts or
consultants serving on a full-time or intermittent basis, except when
waived under Sec. 10.735-402(c).
(b) Employees paid at a level of the Executive Schedule in
subchapter II of chapter 53 of title 5, United States Code, except as
provided in Sec. 10.735-402(b).
(c) Except as provided in Sec. 10.735-402, employees classified at
GS-13, FSO-4, FSR-5, FSS-2, AD-13, FC-5, or above, who are in positions
hereby identified either as positions the basic duties of which impose
upon the incumbent the responsibility for a Government decision or
taking a Government action in regard to:
(1) Contracting or procurement;
(2) Administering or monitoring grants or subsidies;
(3) Regulating or auditing private or other non-Federal enterprise;
(4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise, or as positions
which have duties and responsibilities which require the incumbent to
report employment and financial interests in order to avoid involvement
in a possible conflict of interest situation and carry out the purpose
of law, Executive order, and the agency's regulations:
State
Director General of the Foreign Service and the Director of
Personnel; Director of the Policy Planning Staff; Inspector General;
Director, FSI; Special Assistant to Secretary; Deputy Secretary, Under
Secretaries, or Deputy Under Secretary; Deputy Assistant Secretary and
others at this level or above; Assistant Legal Adviser for Management;
Director, Office of Operations; Office Director; Country Director;
Division Chief in Bureau of Economic and Business Affairs, in the Office
of Operations, (O/OPR), or in the
[[Page 62]]
Office of Foreign Buildings; Executive Director; Deputy Chief of
Mission; Principal Officer; Economic Counselor; Commercial Counselor;
Administrative Counselor; Civil Air Attache; Petroleum Officer; Minerals
Officer; Contracting Specialist; Procurement Specialist; Despatch Agent;
Traffic Manager; and Traffic Management Specialist.
ICA
Deputy Director, Associate Directors, Directors and Deputy Directors
of Offices or Services, Executive or Special Assistants to the Director;
Chief Inspector; Associate Chief Inspector; Commissioner General, Deputy
Commissioner General, Staff Director (Advisory Commission), Director of
Engineering and Technical Operations; Director of Audio-Visual
Procurement and Production; Country Public Affairs Officer, Deputy
Country Public Affairs Officer, Public Affairs Counselor, Deputy Public
Affairs Counselor, Director or Manager of Regional Service Center, Radio
Relay Station, Radio Program Center or Radio Relay Station Construction
Site, Administrative Officer or Executive Officer at a post abroad,
Administrative Officer, Executive Officer and Business Manager
(occupational codes 301, 340, 341, and 1101, or FAS code 200);
Contracting Specialist and Procurement Specialist (occupational code
1102, or FAS codes 210 and 211); Auditor and Accountant (occupational
code 510, or FAS code 207); General Counsel, Deputy General Counsel, or
Attorney (occupational code 905, or FAS code 512).
AID
(1) AID/W: Deputy Assistant Administrators, Associate Assistant
Administrators, Deputy Associate Assistant Administrators; Heads and
Deputy Heads of Offices, Staffs, and Divisions; Desk Officers and Deputy
Desk Officers.
(2) Overseas: Mission Directors, Deputy Directors, Assistant
Directors, AID Representatives, Aid Affairs Officers, Chairman,
Development Assistance Committee; U.S. Representative to Development
Assistance Committee; Development Coordination Officer.
(3) Any person serving as chief of an operational branch responsible
for housing, loans, guarantees, or other commercial type transactions
with the public.
(4) In addition, employees in AID/W or overseas whose positions fall
within the following series or position titles (occupational code given
in parenthesis): Economist Series (0110); International Cooperation
Series (0136); Auditor General (0301.21); Supervisory Housing
Development Officer (0301.31); Chief, Housing and Urban Development
(0301.35); Contract Compliance Specialist (0301.48); Director for
Regional Activities (0340.08); Development Officer (0340.09); Regional
Development Officer (0340.10); Executive Officer (0341.01); Deputy
Executive Officer (0341.02); Regional Executive Officer (0341.03);
Administrative Officer (0341.05); Executive Officer--Administrative
Support (0341.15); Executive Officer, Operations (0341.16); Executive
Officer, Real Property (0341.18); Executive Officer, Personnel
(0341.19); General Services Officer (0342.01); Assistant General
Services Officer (0342.03); Assistant General Services Officer, Property
and Supply (0342.20); Assistant General Services Officer, Procurement
(0342.23); Assistant General Services Officer, Housing (0342.25);
Program Officer (0345.01); Deputy Program Officer (0345.02); Food and
Agriculture Officer (0401.01); Deputy Food and Agriculture Officer
(0401.02); Budget and Accounting Series (0504); Financial Management
Series (0505); Accounting Series (0510); Budget Administration Series
(0560); General Attorney Series (0905); General Business and Industry
Series (1101); Contract and Procurement Series (1102); Property Disposal
Series (1104); Purchasing Series (1105); Trade Specialist Series (1140);
Private Resources Development Series (1150); Financial Analysis Series
(1160); General Investigating Series (1810); Criminal Investigating
Series (1811); Import Specialist Series (1889); General Supply Series
(2001); Supply Program Management Series (2003).
Sec. 10.735-402 Employees not required to submit statements.
(a) Employees in positions that meet the criteria in paragraph (c)
of Sec. 10.735-401 may be excluded from the reporting requirement when
the agency head or designee determines that:
(1) The duties of the position are such that the likelihood of the
incumbent's involvement in a conflict-of-interest situation is remote;
(2) The duties of the position are at such a level of responsibility
that the submission of a statement of employment and financial interests
is not necessary because of the degree of supervision and review over
incumbent or the inconsequential effect on the integrity of the
Government.
(b) A statement of employment and financial interests is not
required by the regulations in this part from an agency head, or a full-
time member of a committee, board, or commission appointed by the
President. These employees are subject to separate reporting
requirements under section 401 of Executive Order 11222.
(c) Special Government employees not required to submit statements.
An agency head may waive the requirement of this section for the
submission
[[Page 63]]
of a statement of employment and financial interest in the case of a
special Government employee who is not a consultant or an expert when
the agency finds that the duties of the position held by that special
Government employee are of a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Government. For the
purpose of this paragraph, ``consultant'' and ``expert'' have the
meanings given those terms by chapter 304 of the Federal Personnel
Manual, but do not include a physician, dentist, or allied medical
specialist whose services are procured to provide care and service to
patients.
Sec. 10.735-403 Employee's complaint on filing requirement.
Each employee shall have the opportunity for review through agency
grievance procedure of the employee's complaint that the employee's
position has been improperly included within Sec. 10.735-401 as one
requiring the submission of a statement of employment and financial
interests. Employees are reminded that they may obtain counseling
pursuant to Sec. 10.735-103 prior to filing a complaint.
Sec. 10.735-404 Time and place of submission, and forms.
(a) An employee or special Government employee shall submit a
statement to the Counselor (in the case of a State employee, through the
employee's Bureau) no later than:
(1) Ninety days after the effective date of this part if the
employee has entered on duty on or before that effective date; or
(2) At least 10 days prior to entrance on duty, if the employee
enters on duty after that effective date; except that an employee or
special Government employee who enters on duty within 90 days of the
effective date of this part may submit such statement within 90 days
after entrance on duty.
(b) Only the original of the statement or supplement thereto
required by this part shall be submitted. The individual submitting a
statement should retain a copy for the individual's own records.
Sec. 10.735-405 Information required.
(a) Employees. Employees' statement of employment and financial
interests required by the regulations in this part shall be submitted on
the form, ``Confidential Statement of Employment and Financial Interests
(for use by Government Employees)'', Form OF-106, and shall contain all
the information therein required.
(b) Special Government employees. All special Government employees
shall submit statements of employment and financial interest on the
form, ``Confidential Statement of Employment and Financial Interests
(for use by Special Government Employees)'', Form OF-107 for State and
ICA, Form AID 4-450 for AID, and shall contain all the information
therein required.
(c) Interests of employee's relatives. The interest of a member of
an employee's family is considered to be an interest of the employee.
The term ``member of an employee's family'' is defined in Sec. 10.735-
102(f).
(d) Information not known by employees. If any information required
to be included on a statement of employment and financial interests or
supplementary statement, including holdings placed in trust, is not
known to the employee but is known to another person, the employee shall
request that other person to submit information in the employee's
behalf.
(e) Interests not required to be reported. An employee need not
disclose those financial interests described in Sec. 10.735-205(c) as
being too remote or too inconsequential to affect the integrity of
employees' services.
(f) Information not required. The regulations in this part do not
require an employee to submit on a statement of employment and financial
interests or supplementary statement any information relating to the
employee's connection with, or interest in, a professional society or a
charitable, religious, social, fraternal, recreational, public service,
civic, or political organization or a similar organization not conducted
as a business enterprise. For the purpose of this section, educational
and other institutions doing research and development or related work
involving grants or money from or contracts with the Government are
[[Page 64]]
deemed ``business enterprises'' and are required to be included in an
employee's statement of employment and financial interests.
Sec. 10.735-406 Submission of position description.
Each Statement of Employment and Financial Interests or annual
supplement thereto must be accompanied by a full description of the
employee's principal governmental duties. The description should be
particularly detailed in regard to those duties which might possibly be
an element in a conflict of interest. If the statement indicates that
the employee has no outside employment or financial interests, the
employee need not submit a description of duties. For a special
Government employee, the employing office shall submit the description.
Sec. 10.735-407 Supplementary statements.
(a) Employees, as defined in paragraphs (b) and (c) of Sec. 10.735-
401, shall report changes in, or additions to, the information contained
in their statements of employment and financial interests in
supplementary statements as of June 30 each year. If no changes or
additions occur, a negative report is required.
(b) All special Government employees, as defined in paragraph (a) of
Sec. 10.735-401, shall submit a current statement at the time their
appointments are extended. A supplementary report indicating any changes
in, or additions to the information already submitted will be accepted
in lieu of a full submission. If there are no changes or additions, a
negative report is required. For AID, no action to extend an appointment
will be taken unless such supplementary report is submitted not later
than 10 days prior to the expiration of said appointment.
(c) Notwithstanding the filing of reports required by this section,
each employee shall at all times avoid acquiring a financial interest
that could result, or taking an action that would result, in a violation
of the conflicts-of-interest provisions of section 208 of title 18,
United States Code, or subpart B of this part.
(d) An employee is also to keep current the employee's description
of principal duties as to changes or additions which might possibly be
an element in a conflict of interest. The employing office shall submit
descriptions of changes in the principal duties of a special Government
employee as they occur.
Sec. 10.735-408 Review of statements and determination as to conflicts
of interest.
(a) On the basis of the Statement of Employment and Financial
Interests submitted by each employee or special Government employee, or
on the basis of information received from other sources, the Counselor
shall determine, in the light of the duties which that employee or
special Government employee is or will be performing, whether any
conflicts of interest, real or apparent, are indicated. The Counselor
shall make this determination based on the applicable statutes, the
Executive order, and the applicable regulations of the Civil Service
Commission, and of the agency.
(b) Where the Counselor's determination in a particular case is that
a conflict of interest, real or apparent, is indicated, the Counselor
shall initiate informal discussions with the employee or special
Government employee concerned. These discussions shall have as their
objectives:
(1) Providing the individual with a full opportunity to explain the
conflict or appearance of conflict; and
(2) Arriving at an agreement (acceptable to the Counselor, the
individual and the individual's immediate superior) whereby the conflict
of interest may be removed or avoided. Such an agreement may include,
but is not limited to: (i) Changes in assigned duties; (ii) divestiture
of the financial or employment interest creating the conflict or
apparent conflict; or (iii) disqualification for a particular
assignment.
(c) Where an acceptable agreement cannot be obtained pursuant to
paragraph (b) of this section, the Counselor shall present findings and
recommendations to the officer designated by the agency head, who shall
[[Page 65]]
decide which remedy is most appropriate to remove or correct that
conflict or apparent conflict. Remedial action under this paragraph may
include disciplinary action, including separation for cause, or any of
the actions enumerated in paragraph (b)(2) of this section and shall be
effective in accordance with applicable laws, Executive orders, and
regulations.
(d) Written summaries of all agreements and decisions arrived at
pursuant to paragraph (b) or (c) of this section shall be placed in the
Counselor's files. Copies shall also be made available to the employee
or special Government employee concerned.
Sec. 10.735-409 Confidentiality of employees' statements.
An agency shall hold each statement of employment and financial
interests, and each supplementary statement, in confidence. To insure
this confidentiality only the Counselor and Deputy Counselors are
authorized to review and retain the statements. The Counselor and Deputy
Counselors are responsible for maintaining the statements in confidence
and shall not allow access to, or allow information to be disclosed
from, a statement except to carry out the purpose of this part. An
agency may not disclose information from a statement except as the Civil
Service Commission or the agency head may determine for good cause
shown.
Sec. 10.735-410 Effect of employees' statements on other requirements.
The statements of employment and financial interests and
supplementary statements required for employees are in addition to, and
not in substitution for, or in derogation of, any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit the employee or
any other person to participate in a matter in which the employee or the
other person's participation is prohibited by law, order, or regulation.
Save with respect to those financial interests excepted from the
conflict of interest prohibitions of 18 U.S.C. 208(a) pursuant to a
written advance determination under Sec. 10.735-217 or exempted by the
provisions of Sec. 10.735-205(c), an employee must disqualify himself
or herself from participating in any matter in which the employee has a
financial interest.
Sec. 10.735-411 Disqualification procedures.
(a) Where an employee is prohibited from participating in a matter
because of a conflicting financial interest that is not exempt under
Sec. 10.735-205(c) or has not been specifically excepted by the
appropriate agency official pursuant to Sec. 10.735-217 in advance of
the employee's participation in the particular matter, the employee
shall conduct himself or herself in accordance with the following
provisions:
(1) The employee shall promptly disclose the financial interest in
such matter to the employee's immediate superior. The superior will
thereupon relieve the employee of duty and responsibility in the matter.
(2) In foreign posts, it may be impossible or highly impracticable
for an employee, who has a disqualifying financial interest, to assign
the matter for official action to anyone other than a subordinate. In
this event, the employee must instruct the subordinate to report fully
and directly to the immediate superior to whom the employee himself or
herself would normally report. The employee must concurrently direct
such subordinate to take such action as may be appropriate in the
matter, and without thereafter revealing to the disqualified employee in
any way any aspect of the particular matter.
(b) Nothing herein precludes the employee from disposing of such
disqualifying financial interest, thereby wholly eliminating the
conflict of interest. In some circumstances, where the employee may not
obtain an exception under Sec. 10.735-217, or may not disqualify
himself or herself and refer or assign the matter to another employee,
the performance of duty may even require divestiture.
(c) Where a supervisor has reason to believe that a subordinate
employee may have a conflicting financial interest, the supervisor
should discuss the matter with the employee. If the supervisor finds
that a conflict of interest
[[Page 66]]
does exist, the supervisor must relieve the subordinate employee of duty
and responsibility in the particular matter.
(d) The obligation to avoid conflicts of interest is upon each
employee. It is a continuing obligation calling for alert vigilance.
(e) Notwithstanding any other provision of this part to the
contrary, if a employee's holdings rise in value above the amount
exempted by Sec. 10.735-205(c), then the statutory and regulation
prohibitions apply in a conflict of interest situation.
PART 11_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents
Sec.
11.1 Junior Foreign Service officer career candidate appointments.
11.2 Written examination for appointment to class 7 or 8.
11.3 Oral examination for appointment to class 7 or 8.
11.4 Medical examination for appointment to class 7 or 8.
11.5 Certification for appointment to class 7 or 8.
11.6 Final Review Panel.
11.7 Termination of eligibility.
11.8 Travel expenses of candidates.
11.10 Mid-level Foreign Service officer career candidate appointments.
[Reserved]
11.11 Mid-level Foreign Service officer career candidate appointments.
11.20 Foreign Service specialist career candidate appointments.
11.30 Senior Foreign Service officer career candidate and limited non-
career appointments.
Authority: 22 U.S.C. 3926, 3941.
Sec. 11.1 Junior Foreign Service officer career candidate appointments.
(a) General considerations--(1) Authority. Pursuant to sections 302
and 306 of the Foreign Service Act of 1980 (hereinafter referred to as
the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status with subsequent commissioning to
career status governed by the provisions of Volume 3 (Personnel),
Foreign Affairs Manual, section 570. In accordance with section 102(b)
of the Act, all references in these regulations to Foreign Service
officers shall, with respect to the United States Information Agency, be
deemed to refer to Foreign Service information officers.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the fact that an applicant is a veteran or disabled
veteran, as defined in section 2108 (3A), (3B), or (3C) of such title,
shall be considered as an affirmative factor in the selection of
candidates for appointment as Foreign Service officer career candidates.
(3) Policy. Appointment as a Junior Foreign Service officer Career
Candidate of class 6, 5, or 4, is governed by these regulations.
Successful applicants will be appointed as Career Candidates for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, Career Candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their Career Candidate appointments will be
separated from the Career Candidate program no later than the expiration
date of their appointments. Separated candidates who originally were
employees of a department or agency will be entitled to reemployment
rights in their former department or agency in accordance with section
310 of the Act.
(b) Written examination. The following regulations apply to the
written examination.
(1) Purpose. The written examination is designed to enable the Board
of Examiners for the Foreign Service to test the applicant's
intelligence, breadth and quality of knowledge, and understanding in
relation to the requirements of Foreign Service work.
(2) Eligibility. Prior to each written examination, the Board of
Examiners will establish a closing date for the receipt of applications
for designation to take the examination. No person will be designated to
take the examination who has not, as of that closing date, filed an
application with the Board. To
[[Page 67]]
be designated to take the written examination, an applicant, as of the
date of the examination, must be a citizen of the United States and at
least 20 years of age.
(3) When and where given. The written examination will be given
periodically, normally at least once a year, in designated cities in the
United States and at Foreign Service posts, on dates established by the
Board of Examiners and publicly announced.
(4) Grading. The several parts of the written examination will be
weighted and graded according to standards established by the Board of
Examiners. The number of candidates who pass each written examination
will be governed by the projected hiring needs of the participating
foreign affairs departments and agencies in subsequent years.
(c) Oral examination. The following regulations apply to the oral
examination:
(1) Purpose. The oral examination is designed to enable the Board of
Examiners for the Foreign Service to test the candidate's competence to
perform the work of a Foreign Service officer at home and abroad,
potential for growth in the Foreign Service, and suitability to serve as
a representative of the United States abroad. The oral examination for
the Junior Career Candidate Program will consist of an assessment
procedure publicly announced by the Board of Examiners and hereinafter
referred to as the oral examination.
(2) Eligibility--(i) Through written examination. (A) Candidates
whose weighted score on the written examination is at or above the
passing level set by the Board of Examiners will be eligible for
selection to take the oral examination. All eligible candidates normally
will be invited to take the oral examination.
(B) Should the total number of eligible candidates substantially
exceed the projected hiring needs of the Foreign Service, the Board of
Examiners may establish and publicly announce a higher written
examination score than the passing level as the basis for selection to
take the oral examination.
(C) The Board of Examiners may authorize special consideration to be
given in the selection of candidates, from among those eligible, for the
purpose of meeting language requirements, Affirmative Action goals, or
for other purposes which the Board with the concurrence of the
prospective hiring agencies may from time to time approve and publicly
announce.
(D) The nature and applicability of all criteria utilized to select
eligible candidates to take the oral examination will be developed by
the Board of Examiners in consultation with the prospective hiring
agencies and publicly announced in advance of each examination by the
Board.
(E) Candidates who are selected to take the oral examination will be
notified of the period of time after the date of the written
examination, as determined by the Board of Examiners, within which the
oral examination must be conducted. That period will normally be 1 year,
but it may be extended or shortened in special circumstances by the
Board. The candidacy of anyone whose candidacy has not been extended by
the Board, and who has not again passed the written examination in the
meantime, will be terminated 2 years after the end of the month in which
the written examination was held. Time spent outside the United States
and its territories, for reasons acceptable to the Board of Examiners,
will not be counted against this 2-year period. The candidacy of anyone
for whom the 2-year period is extended by the Board because of being
abroad will be terminated automatically if the candidate fails to appear
for the oral examination within 3 months after first returning to the
United States. If a candidate fails to appear for the oral examination
on an agreed date within the period of eligibility without an excuse
acceptable to the Board, the candidacy will automatically terminate.
(ii) Through affirmative action. Members of the minority groups
specified by the Equal Opportunity Act of 1972, as amended, may be
selected by the Board of Examiners for admission to the oral examination
in accordance with the Affirmative Action Programs of the participating
departments and agencies. Such candidates must be at least 21 years of
age, citizens of the
[[Page 68]]
United States, and holders of at least a bachelor's degree from an
accredited college or university. Affirmative Action Program applicants
will be evaluated on a highly competitive basis, in accordance with
criteria established by the Board in conjunction with the participating
departments and agencies and publicly announced, to determine those to
be selected for the oral examination.
(iii) Through the mustang program. (A) Employees of the Department
of State in classes FS-9 through FS-4 and grades GS-1 through GS-12 who
are at least 21 years of age and who have at least 3 years of service
with the Department may be selected by the Board of Examiners for
admission to the oral examination for the Junior Career Candidate
Program in accordance with the Mustang Program of the Department. Such
Mustang candidates must: (1) Complete successfully an appropriate
Foreign Service Institute-sponsored or approved university or
correspondence course relevant to officer-level responsibility in the
chosen Foreign Service field of specialization; (2) submit an
autobiography of approximately 1000 words; and (3) be recommended by a
Qualifications Evaluation Panel of the Board of Examiners for selection
for the oral examination.
(B) Employees of the Department of State in classes FS-3 and GS-13
and above are eligible for the Mid-Level Career Candidate Program and
should apply under that program if they wish to be considered for
conversion to Foreign Service officer status (see Sec. 11.10).
(iv) Through the upward mobility program. Admission to the oral
examination through the Upward Mobility Program of the United States
Information Agency is governed by procedures established by that agency.
(3) When and where given. The oral examination cycle will be held
each year in Washington, DC, and in selected cities in the United
States. If circumstances permit, oral examinations may also be held at
selected Foreign Service posts when approved by the Board of Examiners.
(4) Examining panel. The oral examination will be given by a panel
of deputy examiners approved by the Board of Examiners from a roster of
Foreign Service officers; Foreign Service information officers; career
officers from the Department of State, the United States Information
Agency, and the Department of Commerce; and qualified private citizens
who, by prior service as members of departmental or agency Foreign
Service selection boards or other appropriate activities, have
demonstrated special qualifications to serve as deputy examiners.
Service as a deputy examiner shall be limited to a maximum of 5 years,
unless a further period is specifically authorized by the Board.
Examination panels shall be chaired by a career officer of the Foreign
Service. Determinations of duly constituted panels of deputy examiners
are final unless modified by specific action of the Board of Examiners.
(5) Grading. Candidates taking the oral examination will be graded
numerically according to standards established and publicly announced by
the Board of Examiners. The candidacy of anyone whose score is at or
above the passing level set by the Board will be continued. The
candidacy of anyone whose score is below the passing level will be
terminated and may not be considered again until the candidate has
passed a new written examination. An Affirmative Action, Mustang, or
Upward Mobility candidate who fails the oral examination may not be
considered again until 1 year after that date.
(d) Background investigation. Candidates who pass the oral
examination will be eligible for selection by the Board for the
background investigation. The background investigation shall be
conducted to determine the candidate's suitability for appointment to
the Foreign Service. Should the total number of eligible candidates
substantially exceed the anticipated needs of the Foreign Service, the
Board of Examiners may authorize priorities to be established, on the
basis of combined written and oral examination scores and Affirmative
Action considerations, for scheduling the background investigation.
(e) Medical examination--(1) Eligibility. Candidates who pass the
oral examination, and their dependents, will be eligible for selection
by the Board of Examiners for the medical examination.
[[Page 69]]
(2) Purpose. The medical examination shall be conducted to determine
the candidate's physical fitness to perform the duties of a Foreign
Service officer on a worldwide basis and, for candidates and dependents,
to determine the presence of any physical, neurological, or mental
condition of such a nature as to make it unlikely that they would be
able to function on a worldwide basis.
(3) Conduct. The medical examination may be conducted by medical
officers of the Department of State, the Armed Forces, the Public Health
Service, accredited colleges and universities, or by private physicians.
(4) Determination. The Medical Director of the Department of State
will determine, on the basis of the report of the physician(s) who
conducted the medical examination, whether the candidate has met the
required medical standards for appointment (see section 1930, Volume 3,
Foreign Affairs Manual).
(5) Waiver of worldwide availability requirement. When authorized
and requested by the candidate, the Director General of the Foreign
Service, or the Director General's delegatee, will review the case of
any Department of State Foreign Service candidate who has been denied an
unlimited medical clearance for assignment worldwide, and determine
whether or not the candidate should be appointed despite the medical
disqualification. Decisions of the Director General of the Foreign
Service, or the Director General's delegatee, are final and are not
subject to further appeal by the candidate.
(f) Final review panel. After the results of the medical examination
and background investigation are received, the candidate's entire file
will be reviewed and graded by a Final Review Panel, consisting of two
or more deputy examiners of the Board of Examiners. Candidates who have
completed the examination process; have passed their medical
examination, or have obtained a waiver from the Director General of the
Foreign Service, or his or her delegatee, or the equivalent in
accordance with the procedures of the other participating agencies; and
on the basis of their background investigation, have been found suitable
to represent the United States abroad, will have their names placed on
the functional rank-order register(s), or a special register, for the
agency or agencies for which they have been found qualified. Thereafter,
they will be considered for employment based on the needs of the
individual foreign affairs agencies. The candidacy of any candidate who
is determined by the Final Review Panel to be unqualified for
appointment shall be terminated and the candidate so informed.
(g) Certification for appointment--(1) Eligibility. (i) A candidate
will not be certified as eligible for appointment as a Foreign Service
Officer Career Candidate of class FS-6 unless that candidate is at least
21 years of age and a citizen of the United States.
(ii) Career Candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States Information
Agency shall be made before the candidate's 58th birthday. The maximum
age for appointment under this program is based on the requirement that
all career candidates shall be able to: (A) Complete at least two full
tours of duty, exclusive of orientation and training, (B) complete the
requisite eligibility period for tenure consideration, and (C) complete
the requisite eligiblity period to receive retirement benefits, prior to
reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) A candidate may be certified as eligible for direct
appointment to classes FS-5 or FS-4 if the Board of Examiners determines
in accordance with published criteria that, in addition to meeting the
requirements for class FS-6, the candidate has additional special
experience and skills for which there is a need in the Foreign Service.
(iv) Recommended candidates who meet the requirements of this
section will be certified for appointment by the Board, in accordance
with the needs of the foreign affairs agencies, in the order of their
standing on their respective registers.
(2) Functional rank-order registers. The Board of Examiners may
maintain separate rank-order registers for Career Candidates in
administrative, consular, economic, and political functions of
[[Page 70]]
the Department of State; for Career Candidates in the information/
cultural function of the United States Information Agency; for Career
Candidates in the foreign commercial function of the Department of
Commerce; and for functions of other participating foreign affairs
agencies. Appointments from each functional register will be made in
rank order according to the needs of the relevant agency.
(3) Special programs. (i) Qualified minority candidates who apply
and qualify under the Department of State Affirmative Action Junior
Officer Program (AAJOP) may be placed on a separate register and offered
appointment from that register to meet Affirmative Action hiring goals
established by the Secretary.
(ii) Qualified minority candidates who apply and qualify under the
Comprehensive Minority Recruitment and Training Program (COMRAT) of the
United States Information Agency may be placed on a separate register
and offered appointment from that register in accordance with the
Affirmative Action Program established by that agency.
(iii) Mustang and Upward Mobility candidates who are career
employees of the Department of State or the United States Information
Agency will be certified by the Board of Examiners for direct
appointment on an individual basis after satisfactorily completing all
aspects of the examination process.
(4) Postponement of entrance on duty. Postponement of entrance on
duty because of civilian Federal Government service abroad (to a maximum
of 2 years of such service), including Peace Corps volunteer service, or
required active regular or reserve military service (to a maximum of the
limit of such required service), may be authorized by the Board.
(5) Foreign language requirement. A candidate may be certified for
appointment to classes FS-6, FS-5, or FS-4 without first having passed
an examination in a foreign language, but the appointment will be
subject to the condition that the newly appointed Career Candidate may
not be converted to career Foreign Service officer status unless, within
a specified period of time, adequate proficiency in a foreign language
is achieved. For limitations on promotion, see section 874, Volume 3,
Foreign Affairs Manual.
(h) Termination of eligibility--(1) Time limit. Candidates who have
qualified but have not been appointed because of lack of openings will
be removed from the rank-order register 18 months after the date of
placement on the rank-order register. Time spent in civilian Federal
Government service abroad (to a maximum of 2 years of such service),
including Peace Corps volunteer service, or in required active regular
or reserve military service (to a maximum of the limit of such required
service), will not be counted as part of the 18-month eligibility
period.
(2) Extension. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interest of the Foreign Service.
(i) Travel expenses. The travel and other personal expenses of
candidates incurred in connection with the written and oral examinations
will not be borne by the Government. However, the participating foreign
affairs departments and agencies may issue round-trip invitational
travel orders to bring candidates to Washington, DC, at Government
expense, when it is determined by the agencies that this is necessary in
the interest of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 13162, Mar. 30, 1983, as amended at 67 FR 46109, July 12, 2002]
Sec. 11.2 Written examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the written examination:
(a) When and where given. The written examination will be given
annually or semiannually, if required, in designated cities in the
United States and at Foreign Service posts on dates established by the
Board of Examiners for the Foreign Service. Applicants must indicate in
their applications
[[Page 71]]
whether they are applying for the Department of State or for the U.S.
Information Agency. Candidates who pass the written examination
successfully may request a transfer of their applications to the other
agency.
(b) Designation to take written examination. No person will be
permitted to take a written examination for appointment as a Foreign
Service officer or Foreign Service information officer who has not been
specifically designated by the Board of Examiners to take that
particular examination. Prior to each written examination, the Board
will establish a closing date for the receipt of applications for
designation to take the examination. No person will be designated for
the examination who has not, as of that closing date, filed an
application with the Board. To be designated for the written
examination, a candidate, as of the date of the examination, must be a
citizen of the United States and shall be at least 21 years of age,
except that an applicant who has been awarded a bachelor's degree by a
college or university, or has successfully completed the junior year at
a college or university, may qualify if at least 20 years of age.
(c) Content. The written examination is designed to permit the Board
to test the candidate's intelligence, breadth and quality of knowledge,
and understanding. It will consist of three parts: (1) A general ability
test, (2) an English expression test, and (3) a general background test.
(d) Grading. The several parts of the written examination are
weighted in accordance with the rules established by the Board of
Examiners.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.3 Oral examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the oral examination:
(a) When and where given. The oral examination will be given
throughout the year at Washington and periodically in selected cities in
the United States and, if circumstances permit, at selected Foreign
Service posts.
(b) Eligibility. If a candidate's weighted average on the written
examination is 70 or higher, the candidate will be eligible to take the
oral examination. Candidates eligible for the oral examination will be
given an opportunity and will be required to take the oral examination
within 9 months after the date of the written examination. If a
candidate fails to appear for the oral examination on an agreed date
within the 9-month period, the candidacy will automatically terminate,
except that time spent outside the United States and its territories,
for reasons acceptable to the Board of Examiners, will not be counted
against the 9-month period. The candidacy of anyone for whom the 9-month
period is extended because of being abroad will be automatically
terminated if the candidate fails to appear for the oral examination
within 3 months after first returning to the United States: Provided,
That the candidacy of anyone who has not returned and been examined in
the meantime will be canceled 2 years after the end of the month in
which the written examination was held.
(c) Examining process. (1) The oral examination will be given by a
panel of deputy examiners approved by the Board of Examiners from a
roster of Foreign Service officers, officers from the Department of
State, and other Government agencies, and qualified private citizens who
by prior service as members of selection boards or through other
appropriate activities have demonstrated special qualifications for this
work. Service as deputy examiners shall be limited to a maximum of 5
years, unless a further period is specifically authorized by the Board.
(2) The examination will be conducted in the light of all available
information concerning the candidate and will be designed to determine
the candidate's: (i) Competence to perform the work of a Foreign Service
officer at home and abroad; (ii) potential for growth in the Service;
and (iii) suitability to serve as a representative of the United States
abroad. Panels examining candidates for the Department of State will be
chaired by a Foreign
[[Page 72]]
Service officer of the Department. Panels examining candidates for the
U.S. Information Agency will be chaired by a Foreign Service officer of
that Agency. Determinations of duly constituted panels of deputy
examiners are final, unless modified by specific action of the Board of
Examiners for the Foreign Service.
(3) Grading: Candidates appearing for the oral examination will be
graded ``recommended'' or ``not recommended.'' If recommended, the panel
will assign a grade which will be advisory to the Final Review Panel in
determining the candidate's standing on the rank-order register of
eligibles. The candidacy of anyone who is graded ``not recommended'' is
automatically terminated and may not be considered again until the
candidate has passed a new written examination.
(4) An investigation shall be conducted of candidates who have been
graded ``recommended'' by the oral examining panel to determine loyalty
to the Government of the United States and attachment to the principles
of the Constitution.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.4 Medical examination for appointment to class 7 or 8.
The Board of Examiners for the Foreign Service has established the
following rules regarding the medical examination of candidates.
(a) A candidate graded ``recommended'' on the oral examination will
be eligible for the physical examination.
(b) The medical examination is designed to determine the candidate's
physical fitness to perform the duties of a Foreign Service officer on a
worldwide basis and to determine the presence of any physical, nervous,
or mental disease or defect of such a nature as to make it unlikely that
the candidate would become a satisfactory officer. The Executive
Director of the Board of Examiners for the Foreign Service, with the
concurrence of the Deputy Assistant Secretary for Medical Services, may
make such exceptions to these physical requirements as are in the
interest of the Service. All such exceptions shall be reported to the
Board of Examiners for the Foreign Service at its next meeting.
(c) The medical examination will be conducted by medical officers of
the Armed Forces, the Public Health Service, the Department, accredited
colleges and universities, or, with the approval of the Board of
Examiners, by private physicians.
(d) The Deputy Assistant Secretary for Medical Services will
determine, on the basis of the report of the physician(s) who conducted
the medical examination, whether the candidate has met the standards set
forth in paragraph (b) of this section.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.5 Certification for appointment to class 7 or 8.
(a) Candidates will not be certified as eligible for appointment as
Foreign Service officers of class 8 unless they are at least 21 years of
age, is a citizen of the United States, and, if married, married to a
citizen of the United States. A candidate may be certified as eligible
for direct appointment to class 7 if, in addition to meeting these
specifications, the candidate also has additional qualifications of
experience, education, and age which the Board of Examiners for the
Foreign Service currently defines as demonstrating ability and special
skills for which there is a need in the Foreign Service. Recommended
candidates who meet these requirements will be certified for
appointment, in accordance with the needs of the Service, in the order
of their standing on their respective registers.
(b) Separate registers for Department of State candidates will be
maintained for the administrative, consular, commercial/economic, and
political functional specialties. Successful candidates for the U.S.
Information Agency will have their names placed on a separate rank-order
register and appointments will be made according to the needs of the
Agency. Postponement of entrance on duty for required active military
service, or required alternative service, civilian Government service
abroad (to a maximum of 2
[[Page 73]]
years of such civilian service), or Peace Corps volunteer service, will
be authorized. A candidate may be certified for appointment to class 7
or 8 without first having passed an examination in a foreign language,
but the appointment will be subject to the condition that the newly
appointed officer may not receive more than one promotion unless, within
a specified period of time, adequate proficiency in a foreign language
is achieved.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972, as amended at 38 FR 13640, May 24, 1973]
Sec. 11.6 Final Review Panel.
After the results of the medical examination and background
investigation are received, the candidate's entire file will be reviewed
by a Final Review Panel, consisting of two or more deputy examiners.
Candidates who have been graded ``recommended'' by oral examining
panels, who have passed their medical examination, and who, on the basis
of investigation have been found to be loyal to the Government of the
United States and personally suitable to represent it abroad, will have
their names placed on a rank-order register for the functional specialty
for which they have been qualified. Their standing on the register will
be determined by the Final Review Panel after taking into account the
grade assigned by the oral examining panel and any information developed
subsequent to the oral examination concerning the applicant. The
candidacy of anyone who is determined by the Final Review Panel to be
unqualified for appointment shall be terminated and the candidate so
informed.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.7 Termination of eligibility.
(a) Candidates who have qualified but have not been appointed
because of lack of vacancies will be dropped from the rank-order
register 30 months after the date of the written examination: Provided,
however, That reasonable time spent in civilian Government service
abroad (to a maximum of 2 years such service), including service as a
Peace Corps volunteer, in required active military service, or in
required alternative service, subsequent to establishing eligibility for
appointment will not be counted in the 30-month period.
(b) The Chairman of the Board of Examiners may extend the
eligibility period when such extension is, in his judgment, justified in
the interests of the Service. The Chairman shall report the approved
extensions to the Board of Examiners.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.8 Travel expenses of candidates.
The travel and other personal expenses of candidates incurred in
connection with the written and oral examinations will not be borne by
the Government, except that the Department may issue round-trip
invitational travel orders to bring candidates to Washington at
Government expense when it is determined that it is necessary in
ascertaining a candidate's qualifications and adaptability for
appointment.
(22 U.S.C. 1221 et seq.)
[37 FR 19356, Sept. 20, 1972]
Sec. 11.10 Mid-level Foreign Service officer career candidate
appointments. [Reserved]
Sec. 11.11 Mid-level Foreign Service officer career candidate appointments.
(a) General considerations--(1) Authority. Pursuant to sections 302
and 306 of the Foreign Service Act of 1980 (hereinafter referred to as
the Act), all Foreign Service officers shall be appointed by the
President, by and with the advice and consent of the Senate. All
appointments shall be made to a class and not to a particular post. No
person shall be eligible for appointment as a Foreign Service officer
unless that person is a citizen of the United States. Such appointment
is initially to career candidate status, with subsequent commissioning
to career status governed by Volume 3 (Personnel), Foreign Affairs
Manual section 570.
(2) Veterans' preference. Pursuant to section 301 of the Act, and
notwithstanding the provisions of section 3320 of title 5 of the United
States Code, the
[[Page 74]]
fact that an applicant is a veteran or disabled veteran, as defined in
section 2108(3A), (3B), and (3C) of such title, shall be considered as
an affirmative factor in the selection of candidates for appointment as
Foreign Service officer career candidates (22 U.S.C. 1234).
(3) Purpose and policy. The Mid-Level Career Candidate Program of
the Department of State supplements the Junior Foreign Service Officer
Career Candidate Program to meet total requirements for Foreign Service
officers at the mid-level. The purposes of the Mid-Level Program are:
(i) To provide expanded opportunities and upward mobility for
outstanding members of the Foreign Service with high potential who have
been serving with particular success in other occupational categories;
(ii) to permit the recruitment of a limited number of highly skilled and
qualified personnel from outside the Foreign Service to meet specific
needs which cannot be met from within the career Service; and (iii) to
assist in meeting the Affirmative Action goals of the Department of
State. This section governs appointments to generalist occupational
categories (that is, administrative, consular, economic and political)
at classes FS-3, 2, or 1. All appointments above FS-1, regardless of
occupational category, are govern by Sec. 11.30 (to be supplied).
Appointments to Specialist occupational categories below the Senior
Foreign Service are governed by Sec. 11.20. Successful applicants under
the Mid-Level Program will be appointed to career candidate status for a
period not to exceed 5 years. Under precepts of the Commissioning and
Tenure Board, career candidates may be granted tenure and converted to
career Foreign Service officer status. Those who are not granted tenure
prior to the expiration of their career candidate appointments will be
separated from the Career Candidate Program no later than the expiration
date of their appointments. As provided in section 310 of the Act, such
separated candidates who had originally been employed by the Department
of State with the consent of the head of their agency shall be entitled
to reemployment rights in their former agency under section 3597 of
title 5, United States Code.
(4) Sources of candidates--(i) Department. The great majority of
mid-level entrants will be career employees of the Department of State
and the Foreign Service of proven ability who possess high potential for
advancement. On the basis of the needs of the Foreign Service, the
Department will approve the mid-level appointment of Foreign Service and
Civil Service personnel on its rolls who apply, for whom the Bureau of
Personnel issues a certificate of need, and who are found qualified by
the Board of Examiners for the Foreign Service.
(ii) Other Federal Government agencies. Personnel with similar
qualifications from other Federal Government agencies may also apply for
the Mid-Level Program based on agreements between the Department and
those agencies.
(iii) Other. Other candidates may be drawn from non-Government
sources, including minority and women applicants for the Department's
Mid-Level Affirmative Action Program.
(b) Eligibility requirements--(1) Citizenship. Each person appointed
as a Foreign Service mid-level career candidate must be a citizen of the
United States.
(2) Service. (i) On the date of application, a candidate must have
completed a minimum of 9 years of professional work experience,
including at least 3 years of service in a position of responsibility in
a Federal Government agency or agencies. For this purpose, a position of
responsibility is defined as one in the Foreign Service at class FS-5,
in the Civil Service at GS-9, or in the Armed Forces as first lieutenant
or lieutenant junior grade, or higher. Academic studies, particularly
those related to Foreign Service work, may be substituted for part of
the required experience. The duties and responsibilities of the position
occupied by the candidate must have been similar to or closely related
to that of a Foreign Service officer in terms of knowledge, skills,
abilities, and overseas work experience. In addition, a candidate must
currently be in, or have been in, a grade or class comparable to FS-4 or
higher.
(ii) Candidates from outside the Department who at the time of
application lack 3 years of service in a position of responsibility as
defined in the
[[Page 75]]
preceding paragraph may, however, be considered if they are found to
possess a combination of educational background, employment, experience,
and skills needed by the Foreign Service at the mid-level.
(3) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. The maximum age for appointment under this
program is based on the requirement that all career candidates shall be
able to (i) complete at least two full tours of duty, exclusive of
orientation and training, (ii) complete the requisite eligibility period
for tenure consideration, and (iii) complete the requisite eligibility
period to receive retirement benefits, prior to reaching the mandatory
retirement age of 65 prescribed by the Act.
(4) Certification of need. Before the Board of Examiners may process
a candidacy, the Director General of the Foreign Service must certify
that there is a continuing, long-term requirement, consistent with the
projections of personnel flows and needs mandated by section 601(c)(2)
of the Act, for a combination of professional work experience,
educational background, skills, and capabilities possessed by the
applicant which cannot reasonably be met from within the ranks of the
career service, including by special training of career personnel and/or
limited appointments pending completion of such training, if feasible.
No applicant may be appointed in an occupational category or at a class
level for which the Director General has not certified a need. Such
certifications shall take into full account the latest published skills
resources inventory and shall be based on a written assessment of the
assignment and promotion effects on career members of the Foreign
Service. A separate certification of need is not required for applicants
under the Mid-Level Affirmative Action Program, as the hiring goals
established by the Secretary constitute the certification for applicants
under that Program. The exclusive employee representative will be
advised promptly in writing on request of the number, nature, and dates
of the certifications of need issued since the last request, including a
affirmation that each such issuance has been in accordance with the
requirements of this section.
(c) Recruitment--(1) From within the Department. It is the
Department's policy to encourage eligible personnel on its rolls to
apply for appointment as Mid-Level Foreign Service officer career
candidates including, in particular, the following categories: (i)
Members of the Foreign Service whose performance has been consistently
of a high caliber, and whose background, experience, and general
qualifications indicate that they can compete favorably with Foreign
Service officers; and (ii) Civil Service personnel who are serving in
positions to which Foreign Service officers are normally assigned, who
have superior records, and whose general qualifications indicate that
they can compete favorably with Foreign Service officers.
(2) Other. The Department also encourages highly qualified
applicants from other agencies of the Federal Government, and from
outside the Federal Government, who meet the statutory and other
eligibility requirements, to apply for the Mid-Level Program.
Appointments from these sources for available openngs are made on a
highly competitive basis to fill specific needs of the Foreign Service
at the Mid-Level.
(d) Methods of application--(1) Forms. Application is made for a
Mid-Level Foreign Service officer career candidate appointment but not
for a specific class. Applicants for mid-level entry must complete
Standard Form 171, ``Personnel Qualifications Statement,'' and Form DSP-
34, ``Supplement to Application for Federal Employment,'' and forward
them, together with an autobiography not exceeding four typewritten
pages in length, to the Board of Examiners for the Foreign Service for
consideration.
(2) Qualifications evaluation panel. The Board of Examiners
establishes a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Foreign Service officer. A Qualifications Evaluation Panel
of deputy examiners of the Board of Examiners reviews the file to
determine
[[Page 76]]
whether the applicant meets the statutory and other eligibility
requirements, to assess the applicant's skills relative to the needs of
the Foreign Service, and to recommend whether the applicant should be
examined for possible appointment under the Mid-Level Program.
(e) Examination for mid-level appointment. The submission of an
application to the Board of Examiners does not in itself entitle an
applicant to examination. The decision whether to proceed with an
examination will be made by the Board of Examiners after a thorough
review of the candidate's qualifications and a determination of
eligibility for appointment following receipt of a certification of need
for that candidate.
(1) Purpose. The mid-level examination is designed to enable the
Board of Examiners to determine a candidate's aptitude for the work of
the Foreign Service at the mid-level and fitness for a Foreign Service
career.
(2) Class. In determining the Foreign Service officer class for
which a candidate will be examined, the Board of Examiner's presumption
will be for the class which is equivalent to the candidate's current
salary level. In evaluating qualifications and in conducting
examinations, the Board of Examiners will determine whether the
candidate's qualifications compare favorably with Foreign Service
officers at the candidate's current salary level. However, the Board of
Examiners, at its discretion, may certify a candidate for appointment as
a career candidate at a class other than that equivalent to current
salary level in those instances where the Board determines that the
candidate's qualifications clearly warrant such action.
(3) Written examination. A written examination will not normally be
required of candidates for mid-level appointment. However, if the volume
of applications for a given class or classes, or a particular functional
specialty, is such as to make it infeasible to examine all candidates
orally within a reasonable time, such candidates may be required to take
an appropriate written examination prescribed by the Board of Examiners.
Candidates whose score on the written examination is at or above the
passing level set by the Board of Examiners will be eligible for
selection for the oral examination.
(4) Oral examination--(i) Purpose. The oral examination will be
designed to enable the Board of Examiners to determine whether
candidates are functionally qualified for work in the Foreign Service at
the mid-level, whether they have the potential to advance in the Foreign
Service, and whether they have the background and experience to make a
contribution to the Foreign Service.
(ii) When and where given. The oral examination is individually
scheduled throughout the year and is normally given in Washington, DC.
At the discretion of the Board of Examiners, it may be given in other
American cities, or at Foreign Service posts, selected by the Board.
(iii) Examining panel. Candidates recommended by a Qualifications
Evaluation Panel for examination will be given an oral examination by a
panel of deputy examiners of the Board of Examiners. That panels shall
include at least one officer from the functional or professional
specialty for which the candidate is being examined. Examining panels
shall be chaired by a career officer of the Foreign Service.
Determinations of duly constituted panels of deputy examiners are final
unless modified by specific action of the Board of Examiners.
(iv) Content. The Examining Panel will question the candidate
regarding the indicated functional or professional specialty; knowledge
of American history, government, and other features of American culture;
familiarity with current events and international affairs; and other
matters relevant to the candidate's qualifications for appointment.
(v) Grading. Candidates taking the oral examination will be graded
numerically according to standards established by the Board of
Examiners. The candidacy of anyone whose score is at or above the
passing level set by the Board will be continued. The candidacy of
anyone whose score is below the passing level will be terminated and may
not be considered again until 1 year after that date.
[[Page 77]]
(5) Written essay. Candidates who take the oral examination will be
asked to write an essay during the examination day, on a topic related
to Foreign Service work, to enable the Board of Examiners to measure the
candidate's effectiveness of written expression.
(6) Other exercises. Candidates who take the oral examination also
may be asked to complete other exercises during the examination day, to
enable the Board of Examiners to measure additional aspects of
performance related to Foreign Service work at the mid-level.
(7) Background investigation. Candidates who pass the oral
examination will be eligible for selection for the background
investigation. The background investigation shall be conducted to
determine suitability for appointment to the Foreign Service.
(8) Medical examination. Candidates who pass the oral examination,
and their dependents, will be eligible for selection for the medical
examination. The medical examination shall be conducted to determine the
candidate's physical fitness to perform the duties of a Foreign Service
officer on a world-wide basis and, for candidates and dependents, to
determine the presence of any physical, neurological, or mental
condition of such a nature as to make it unlikely that they would be
able to function on a world-wide basis.
(9) Final review panel. The entire file of candidates who pass the
oral examination will be reviewed and graded by a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners,
after the results of the background investigation and the medical
examination are received. The Final Review Panel will take into account
the grade assigned by the oral Examining Panel, as well as all other
available information concerning the candidate, and decide whether or
not to recommend the candidate for appointment. The candidate's file
will then be submitted to the Board of Examiners for approval. If
approved by the Board, the candidate's name will be entered on the rank-
order register for the class and functional specialty for which the
candidate has been found qualified. The candidacy of anyone who is not
recommended for appointment by the Final Review Panel shall be
terminated and the candidate so informed.
(10) Foreign language requirement. All candidates who pass the oral
examination will be required to take a subsequent test to measure their
fluency in foreign languages or their aptitude for learning them. A
candidate may be appointed without first having passed an examination in
a foreign language, but the appointment will be subject to the condition
that the newly appointed career candidate may not be converted to career
Foreign Service officer status unless, within a specified period of
time, adequate proficiency in a foreign language is achieved. For
limitations on promotions see Volume 3 (Personnel), Foreign Affairs
Manual, section 874.
(11) Certification for appointment--(i) Departmental employees. A
candidate who is a career employee of the Department, for whom a
certification of need has been issued, will be certified by the Board of
Examiners for appointment after satisfactorily completing all aspects of
the examination process. The appointment certification will specify the
class and salary for which the candidate has been found qualified.
(ii) Others. Other successful candidates will, after being approved
by the board of Examiners, have their names placed on the rank-order
register for the class and functional specialty for which they have been
found qualified. A separate rank-order register may be established for
candidates under the Mid-Level Affirmative Action Program. Appointments
to available openings will be made from the registers in rank-order
according to the needs of the Foreign Service.
(12) Termination of eligibility. Candidates who have qualified but
have not been appointed because of lack of openings will be removed from
the rank-order register 18 months after the date of placement on the
rank-order register. The Board of Examiners may extend the eligibility
period when such extension is, in its judgment, justified in the
interests of the Foreign Service.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 19702, May 2, 1983]
[[Page 78]]
Sec. 11.20 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Section 303 of the Foreign Service
Act of 1980 (hereinafter referred to as the Act) authorizes the
appointment of members of the Service (other than Presidential
appointments).
(2) Section 306 of the Act provides that, before receiving a career
appointment in the Foreign Service, an individual shall first serve
under a limited appointment for a trial period of service as a career
candidate.
(3) This section governs the appointment by the Department of State
of Foreign Service specialist career candidates to classes FS-1 and
below. Specialist candidates comprise all candidates for career
appointment in all occupational categories other than generalists (that
is, administrative, consular, economic, political, and program
direction), who are governed by the regulations respecting Foreign
Service officer career candidates. The appointment of all Senior Foreign
Service career candidates regardless of occupational category is
governed by Sec. 11.30 (to be supplied). Regulations governing trial
service and tenuring of specialist candidates are found in Volume 3
(Personnel), Foreign Affairs Manual, section 580.
(4) Veterans' preference shall apply to the selection and
appointment of Foreign Service specialist career candidates.
(b) Specialist career candidate appointments--(1) Certification of
need. Candidates for appointment as specialist career candidates must be
world-wide available and must have a professional or a functional skill
for which there is a continuing need in the Foreign Service. Before an
application can be processed, the Director General of the Foreign
Service must certify that there is a need for the applicant as a career
candidate in the specialist category at or above the proposed class of
appointment. No applicant shall be appointed at a class level for which
there is no certified need. This individual certification of need is not
required for those specialist occupations which the Director General
determines in advance to be shortage or continuous recruitment
categories, and for which the Director General has certified the need
for a specific number of appointments at given levels. Such
appointments, including an appointment of an individual who is the
employee of any agency, may not exceed 5 years in duration, and may not
be renewed or extended beyond 5 years. A specialist candidate denied
tenure under Volume 3 (Personnel), Foreign Affairs Manual, section 580,
may not be reappointed as a career candidate in the same occupational
category.
(2) Eligibility. An applicant must be a citizen of the United States
and at least 20 years of age. The minimum age for appointment as a
career candidate is 21. All career candidate appointments shall be made
before the candidate's 60th birthday. The maximum age for appointment
under the program is based on the requirement that all career candidates
shall be able to (i) complete at least two full tours of duty, exclusive
of orientation and training, (ii) complete the requisite eligibility
period for tenure consideration, and (iii) complete the requisite
eligibility period to receive retirement benefits, prior to reaching the
mandatory retirement age of 65 prescribed by the Act.
(3) Selection and initial screening. Specialist career candidates
will be selected on the basis of education, experience, suitability,
performance potential, and physical fitness for world-wide service.
Applicants normally will be given personal interviews and will be
subject to such written, oral, physical, foreign language, and other
examinations as may be prescribed by the Board of Examiners for the
Foreign Service and administered by the Office of Recruitment,
Examination, and Employment (PER/REE). The Board of Examiners will
identify and/or approve the knowledge, skills, abilities, and personal
characteristics required to perform the tasks and duties of Foreign
Service specialists in each functional field. PER/REE will screen
applications for appointment as Foreign Service specialist career
candidates under approved criteria and select those who meet the
requirements for further processing under these regulations.
(4) Oral Examination. Candidates selected through the initial
screening
[[Page 79]]
will be eligible for an oral examination unless they are candidates for
appointment in occupational categories for which the oral examination
may be waived by the Director General. This waiver normally will apply
only to continuous-recruitment categories and to appointments below the
FS-6 level, and where such waivers occur, a thorough oral interview will
be conducted. The oral examination will be given by a panel of deputy
examiners, at least one of whom will be a career Foreign Service
specialist proficent in the functional field for which the candidate is
being tested. The examination may include a writing sample. Candidates
taking the oral examination will be graded numerically according to
standards set by the Board of Examiners. The candidacy of anyone whose
score is at or above the passing level set by the Board will be
continued. The candidacy of anyone whose score is below the passing
level will be terminated and may not be considered again for 1 year.
(5) Background investigation. Candidates who have passed the oral
examination, and candidates who have passed the initial screening if the
oral examination has been waived, will be eligible for selection for the
background investigation to determine their suitability for appointment
to the Foreign Service.
(6) Medical examination. Such candidates and their dependents will
be eligible for selection for the medical examination. The medical
examination shall be conducted to determine the candidate's physical
fitness to perform the duties of a Foreign Service specialist on a
world-wide basis and, for candidates and dependents, to determine the
presence of any physical, neurological, or mental condition of such a
nature as to make it unlikely that they would be able to function on a
world-wide basis.
(7) Final review panel. After the results of the medical examination
and background investigation have been received, a Final Review Panel,
consisting of two or more deputy examiners of the Board of Examiners, or
by another appropriate panel appointed for the purpose by the Director
of PER/REE, will review and grade the candidate's entire file.
Candidates approved by the Final Review Panel will have their names
placed on a rank-order register for the functional specialty for which
they are qualified. Candidates will remain eligible for appointment for
18 months from the date of placement on the rank-order register. The
Board of Examiners may extend this eligibility period when such
extension is, in its judgment, justified in the interests of the Foreign
Service. The candidacy of anyone who is not recommended for appointment
by the Final Review Board shall be terminated and the candidate so
informed.
(c) Limited non-career appointments. Other Foreign Service
specialist appointments may be made on a limited non-career basis.
Before an application for a limited non-career appointment can be
processed, the Director General of the Foreign Service must certify that
there is a need for the applicant. Such limited specialists must serve
overseas, and they will be subject to the same conditions as those
outlined in these regulations for career candidates, with the exception
that the maximum age of 59 does not apply to such appointments. However,
because members of the Foreign Service generally are subject to the
mandatory retirement age of 65 under section 812 of the Act, limited
non-career appointments normally will not extend beyond the appointee's
65th birthday. Applicants for limited non-career appointments will be
subject to the same screening, medical examination, background
investigation, and final review process required of career candidates,
but normally they will not be subject to a written or oral examination.
Their appointments will normally be limited to the duration of the
specific assignment for which they are to be hired, may not exceed 5
years in duration, and may not be renewed or extended beyond 5 years.
Ordinarily, no limited non-career appointee will be reappointed until at
least 1 year has elapsed since the expiration of a previous appointment.
However, earlier reappointment may be granted in cases of special need,
provided the exclusive employee representative is advised in advance and
is afforded an opportunity to comment. Prior to the expiration of
[[Page 80]]
their limited appointments, if otherwise eligible, non-career appointees
may compete for career candidate status by qualifying at that time for
and taking the examinations required of career candidates. If
successful, their names would be entered on the rank-order register for
their functional specialty. If appointed as career candidates, the
length of service under their previous limited non-career appointments
may be counted as part of the trial period of service prescribed before
a candidate can receive a career appointment.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 19704, May 2, 1983]
Sec. 11.30 Senior Foreign Service officer career candidate and limited
non-career appointments.
(a) General considerations. (1) Career officers at the Senior Level
normally shall be appointed as the result of promotion of Mid-Level
career officers. Where the needs of the Foreign Service at the Senior
Level cannot otherwise be met by this approach, limited appointments may
by granted to applicants as Senior Career Candidates or as limited non-
career appointees in accordance with these regulations. However, as
required by section 305(b) of the Foreign Service Act of 1980
(hereinafter referred to as the Act), but qualified by section 305(b)(1)
and (2) and section 2403(c) of the Act, the limited appointment of an
individual in the Senior Foreign Service shall not cause the number of
members of the Senior Foreign Service serving under limited appointments
to exceed 5 percent of the total members of the Senior Foreign Service.
(2) Successful applicants under the Senior Career Candidate Program
will be appointed to Career Candidate status for a period not to exceed
5 years. Such limited Career Candidate appointments may not be renewed
or extended beyond 5 years.
(3) Under section 306 of the Act, Senior Career Candidates may be
found qualified to become career members of the Senior Foreign Service.
Those who are not found to be so qualified prior to the expiration of
their limited appointments will be separated from the Career Candidate
Program no later than the expiration date of their appointments.
Separated candidates who originally were employees of a Federal
department or agency, and who were appointed to the Senior Foreign
Service with the consent of the head of that department or agency, will
be entitled to reemployment rights in that department or agency in
accordance with section 310 of the Act and section 3597 of title 5,
United States Code.
(4) The following regulations shall be utilized in conjunction with
section 593, Volume 3, Foreign Affairs Manual (``Senior Foreign Service
Officer Career Candidate Program''). (Also see Foreign Affairs Manual
Circulars No. 8 [applicable to the Department of State only] and No. 9
[applicable to the Departments of State, Agriculture, and Commerce, the
Agency for International Development, and the United States Information
Agency], dated March 6, 1981.)
(b) Senior Career Candidate appointments--(1) Eligibility
requirements. Senior Career Candidates must meet the following
eligibility requirements:
(i) Citizenship. Each person appointed as a Senior Career Candidate
must be a citizen of the United States.
(ii) Age. All career candidate appointments shall be made before the
candidate's 60th birthday. Appointments by the United States Information
Agency shall be made before the candidate's 58th birthday. The maximum
age for appointment under this program is based on the requirement that
all career candidates shall be able to: (A) Complete at least two full
tours of duty, exclusive of orientation and training; (B) complete the
requisite eligibility period for tenure consideration and (C) complete
the requisite eligibility period to receive retirement benefits, prior
to reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) Service. (A) On the date of application, an applicant must
have completed a minimum of 15 years of professional work experience,
including at least 5 years of service in a position of responsibility in
a Federal Government
[[Page 81]]
agency or agencies or elsewhere equivalent to that of a Mid-Level
Foreign Service officer (classes FS-1 through FS-3). The duties and
responsibilities of the position occupied by the applicant must have
been similar to or closely related to that of a Foreign Service officer
in terms of knowledge, skills, abilities, and overseas work experience.
In addition, an applicant must currently be in, or have been in, a
position comparable to a Foreign Service officer of class 1 (FS-1), or
higher.
(B) Applicants from outside the Federal Government, and Federal
employees who at the time of application lack the 15 years of
professional work experience or the 5 years of service in a position of
responsibility as defined in the preceding paragraph, may, however, be
considered if they are found to possess a combination of educational
background, professional work experience, and skills needed by the
Foreign Service at the Senior Level in employment categories which
normally are not staffed by promotion of Mid-Level career officers.
(C) Non-career members of the Senior Foreign Service of a Federal
Government department or agency also may apply for the Senior Career
Candidate Program if they meet the eligibility requirements for the
program.
(iv) Certification of need. Before an application can be processed,
the Director of Personnel of the foreign affairs agency concerned must
certify that there is a need for the applicant as a Senior Career
Candidate based upon (A) the projections of personnel flows and needs
mandated by section 601(c)(2) of the Act, and (B) a finding that the
combination of educational background, professional work experience, and
skills possessed by the applicant is not expected to be available in the
immediate future in sufficient numbers within the Senior Foreign
Service, including by promotion and/or special training of career
personnel. This certification of need will be requested by the Board of
Examiners for the Foreign Service from the appropriate foreign affairs
agency Director of Personnel.
(2) Application. All applicants for the Senior Career Candidate
Program must apply in writing through the prospective employing agency
to the Board of Examiners for consideration. The applicant shall submit
a completed Standard Form 171, ``Personnel Qualifications Statement,''
and Form DSP-34, ``Supplement to Application for Federal Employment,''
to the Board. In addition, the applicant shall submit a narrative
statement, not exceeding four typewritten pages in length, describing
the applicant's pertinent background and professional work experience,
which includes a statement of the applicant's willingness and ability to
accept the obligation of world-wide service. The Board may request
additional written information from the applicant following receipt of
the initial application.
(3) Qualifications evaluation panel. (i) The Board of Examiners will
establish a file for each applicant, placing in it all available
documentation of value in evaluating the applicant's potential for
service as a Senior Career Candidate. For an applicant from within the
Federal Government, this will include the personnel file from the
employing department or agency.
(ii) The complete file will be reviewed by a Qualifications
Evaluation Panel of the Board of Examiners to determine whether the
applicant meets the statutory and other eligibility requirements, to
assess the applicant's skills under the certification of need issued by
the prospective employing agency, and to recommend whether the applicant
should be examined for possible appointment as a Senior Career
Candidate. If the Qualifications Evaluation Panel decides that the
applicant is not eligible for examination, the prospective employing
agency shall be informed by the Board of the reasons for that decision.
(4) Written Examination. The Board of Examiners normally will not
require Senior Career Candidate applicants to undergo a written
examination. However, the Board may, upon securing the agreement of the
prospective employing agency, decide that such applicants should be
required to take an appropriate written examination prescribed by the
Board. If so, an applicant whose score on the written examination is at
or above the passing level set by the
[[Page 82]]
Board will be eligible for selection for the oral examination.
(5) Oral examination--(i) Examining panel. Applicants recommended by
the Qualifications Evaluation Panel will be given an appropriate oral
examination by a Panel of Senior Foreign Service deputy examiners of the
Board of Examiners. The Oral Examining Panel shall be composed of at
least two deputy examiners who are Senior Foreign Service career
officers of the prospective employing agency, and at least one deputy
examiner who is a Senior Foreign Service career officer from another
foreign affairs agency operating under the Foreign Service Act. The
Examining Panel shall be chaired by a deputy examiner who is a Senior
Foreign Service career officer of the prospective employing agency. At
least one of the Examining Panel members shall represent the functional
or specialist field for which the applicant is being examined.
Determinations of duly constituted panels of deputy examiners are final,
unless modified by specific action of the Board of Examiners.
(ii) Criteria. (A) The Examining Panel will question the applicant
regarding the indicated functional or specialist field and other matters
relevant to the applicant's qualifications for appointment as a Senior
Career Candidate. Prior to the oral examination, the applicant will be
asked to write an essay, on a topic related to Foreign Service work, to
enable the Examining Panel to judge the applicant's effectiveness of
written expression. This essay requirement may be waived at the request
of the head of the prospective employing agency, if, for example, the
applicant is a career member of the Senior Executive Service.
(B) The oral examination will be conducted under written criteria,
established in consultation with the prospective employing agency and
publicly announced by the Board of Examiners. The examination will seek
to determine the ability of the applicant to meet the objective of
section 101 of the Act, which provides for a Senior Foreign Service
``characterized by strong policy formulation capabilities, outstanding
executive leadership qualities, and highly developed functional, foreign
language, and area expertise.''
(iii) Grading. Applicants taking the oral examination will be graded
as ``recommended,'' or ``not recommended'' by the Examining Panel. Those
graded as ``recommended'' also will be given a numerical score, under
the standard Board of Examiners scoring criteria, for use by the Final
Review Panel.
(6) Background investigation. Senior Career Candidate applicants
recommended by the Examining Panel will be subject to the same
background investigation as required for Junior and Mid-Level Foreign
Service Officer Career Candidates. The background investigation shall be
conducted to determine suitability for appointment to the Foreign
Service.
(7) Medical examination. Senior Career Candidate applicants
recommended by the Examining Panel, and their dependents, will be
subject to the same medical examination as required for the Junior and
Mid-Level Foreign Service Career Candidates. The medical examination
shall be conducted to determine the applicant's physical fitness to
perform the duties of a Foreign Service officer on a world-wide basis
and, for applicants and dependents, to determine the presence of any
physical, neurological, or mental condition of such a nature as to make
it unlikely that they would be able to function on a world-wide basis.
Applicants and/or dependents who do not meet the required medical
standards may be given further consideration, as appropriate, under the
procedures of the prospective employing agency.
(8) Foreign language requirement. Applicants recommended by the
Examining Panel will be required to take a subsequent examination to
measure their fluency in foreign languages, and/or their aptitude for
learning them. Senior Career Candidates will be subject to the foreign
language requirements established for their occupational category by
their prospective employing agency. Senior Career Candidate applicants
for the Foreign Commercial Service must demonstrate proficiency by
examination in two foreign languages. United States Information Agency
Senior Career Candidates,
[[Page 83]]
other than Senior Specialist Career Candidates, must demonstrate
proficiency in at least one foreign language. Except for the Foreign
Commercial Service and the United States Information Agency, an
applicant may be appointed without first having passed an examination in
a foreign language, but the appointed Senior Career Candidate may not be
commissioned as a Career Senior Foreign Service officer unless adequate
proficiency in a foreign language is achieved. This language requirement
will not apply to candidates in occupational categories which, in the
judgment of the prospective employing agency, do not require foreign
language proficiency.
(9) Final review panel. (i) The entire file of an applicant
recommended by the Examining Panel will be reviewed and graded by a
Final Review Panel, after the results of the background investigation,
medical examination and language examination are received. The Final
Review Panel will decide whether or not to recommend the applicant for
appointment, taking into account all of the available information
concerning the applicant.
(ii) The Final Review Panel shall consist of a chairperson who shall
be a Deputy Examiner who is a career Senior Foreign Service officer of
the prospective employing agency, and at least two other Deputy
Examiners of the Board of Examiners. Of the Deputy Examiners serving on
the Final Review Panel, the majority shall be career Senior Foreign
Service officers of the prospective employing agency; and at least one
shall be a career Senior Foreign Service officer of one of the other
foreign affairs agencies operating under the Act.
(10) Certification of appointment. The file of an applicant
recommended by the Final Review Panel will be submitted to the Board of
Examiners for consideration and approval. An applicant found by the
Board to meet the standards for appointment as a Senior Foreign Service
Career Candidate shall be so certified to the Director of Personnel of
the prospective employing agency.
(c) Limited non-career appointments. (1) Other Senior Foreign
Service appointments may be made on a limited non-career basis for
individuals who do not wish to compete for career appointments, but for
whom a need can be certified by the Director of Personnel of the foreign
affairs agency concerned. Such limited non-career senior appointees will
be subject to the eligibility requirements set forth in Sec.
11.30(b)(1) (i) and (iv). The maximum age set forth in Sec.
11.30(b)(1)(ii) does not apply to such appointments. However, because
Foreign Service members generally are subject to the mandatory
retirement age of 65, under section 812 of the Act, limited non-career
Senior appointments normally will not extend beyond the appointee's 65th
birthday. Limited non-career appointees of the Department of Commerce
and the United States Information Agency will not be subject to the
language requirements of Sec. 11.30(b)(8). Applicants for limited non-
career senior appointments will be subject to the same background
investigation and medical examination required of career candidates, but
normally they will not be subject to a written or oral examination, or
to approval by the Board of Examiners. Processing procedures for such
applicants will be established by the Director of Personnel of the
foreign affairs agency concerned. Their appointments normally will be
limited to the duration of the specific assignments for which they are
to be hired, may not exceed 5 years in duration, and may not be renewed
or extended beyond 5 years.
(2) Prior to the expiration of their limited non-career senior
appointments, if they meet all the eligibility requirements set forth in
Sec. 11.30(b)(1), such individuals may elect to compete for career
candidate status in the Senior Foreign Service by qualifying at that
time for and taking the examinations required of career candidates. If
appointed as career candidates, the length of service under their
previous limited non-career appointments may be counted under the
procedures of the employing agency as part of the trial period of
service prescribed before a career candidate can receive a career
appointment. The total period of limited appointment (non-career and
career candidate) of such individuals may not exceed 5 years in
duration.
[[Page 84]]
(3) Nothing in this section will limit the right of an individual
who has previously served as a limited non-career senior appointee from
subsequently applying for consideration as a new applicant and being
appointed as a Senior Career Candidate after a limited non-career
appointment has expired.
(d) Reporting requirement. The Director of Personnel of each foreign
affairs agency shall report annually to the Director General of the
Foreign Service, Department of State, the number and nature of the
limited Senior Foreign Service appointments (non-career and career
candidates) made by that agency under these regulations.
(Secs. 206(a) and 301(b), Foreign Service Act of 1980 (secs. 206(a) and
301(b), Pub. L. 96-465, 94 Stat. 2079 and 2083 (22 U.S.C. 3926 and
3941)))
[48 FR 38607, Aug. 25, 1983]
PART 12_COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS--Table of Contents
Sec.
12.1 No cognizance taken of complaint.
12.2 Claimants denied access to employees.
Sec. 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint
against an employee by an alleged creditor, so far as the complainant is
concerned, beyond acknowledging receipt of his communication.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
Sec. 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims
will be denied access to employees for the purpose of presenting or
collecting claims during the hours set apart for the transaction of
public business or while the employees concerned are on duty.
(Sec. 4, 63 Stat. 111, as amended; 22 U.S.C. 2658)
[22 FR 10789, Dec. 27, 1957]
PART 13_PERSONNEL--Table of Contents
Sec.
13.1 Improper exaction of fees.
13.2 Embezzlement.
13.3 Liability for neglect of duty or for malfeasance generally; action
on bond; penalty.
13.4 False certificate as to ownership of property.
Authority: Sec. 302, 60 Stat. 1001; 22 U.S.C. 842.
Source: 22 FR 10789, Dec. 27, 1957, unless otherwise noted.
Sec. 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be
collected, for any services any other or greater fees than are allowed
by law for such services, shall, besides his or her liability to refund
the same, be liable to pay to the person by whom or in whose behalf the
same are paid, treble the amount of the unlawful charge so collected, as
a penalty. The refund and penalty may be recovered with costs, in any
proper form of action, by such person for his or her own use. The amount
of such overcharge and penalty may at the discretion of the Secretary of
the Treasury be ordered withheld from the compensation of such officer
for payment to the person entitled to the same (22 U.S.C. 1189).
Note: The foregoing relates to improper collection and personal
withholding of funds by consular officers. For procedure where a
collection, having been erroneously made, has been returned by the
officer to the Treasury in good faith, making a subsequent accounting
adjustment necessary, see Sec. 22.4, Refund of fees of this chapter.
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects
belonging to a citizen of the United States and shall not within a
reasonable time after demand made upon him or her by the Secretary of
State or by such citizen, his or her executor, administrator, or legal
representative, account for and pay over all moneys, property, and
effects, less his or her lawful fees, due to such citizen, shall be
[[Page 85]]
deemed guilty of embezzlement, and shall be punishable by imprisonment
for not more than five years, and by a fine of not more than $2,000 (22
U.S.C. 1198). Penalties of imprisonment and fine are also prescribed for
embezzlement in connection with the acceptance, without execution of a
prescribed form of bond, of appointment from any foreign state as
administrator, guardian, or to any other office of trust for the
settlement or conservation of estates of deceased persons or of their
heirs or of persons under legal disabilities (22 U.S.C. 1178 and 1179).
Acceptance of such appointments is not ordinarily permitted under
existing regulations. See Sec. 92.81 of this chapter.
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.3 Liability for neglect of duty or for malfeasance generally;
action on bond; penalty.
Whenever any consular officer willfully neglects or omits to perform
seasonably any duty imposed upon him or her by law, or by any order or
instruction made or given in pursuance of law, or is guilty of any
willful malfeasance or abuse of power, or of any corrupt conduct in his
or her office, he or she shall be liable to all persons injured by any
such neglect, or omission, malfeasance, abuse, or corrupt conduct, for
all damages, occasioned thereby; and for all such damages, he or she and
his or her sureties upon his or her official bond shall be responsible
thereon to the full amount of the penalty thereof to be sued in the name
of the United States for the use of the person injured. Such suit,
however, shall in no case prejudice, but shall be held in entire
subordination to the interests, claims, and demands of the United
States, as against any officer, under such bond, for every willful act
of malfeasance or corrupt conduct in his or her office. If any consul
neglects or omits to perform seasonably the duties imposed upon him or
her by the laws regulating the shipment and discharge of seamen, or is
guilty of any malversation or abuse of power, he or she shall be liable
to any injured person for all damage occasioned thereby; and for all
malversation and corrupt conduct in office, he or she shall be
punishable by imprisonment for not more than five years and not less
than one, and by a fine of not more than $10,000 and not less than
$1,000 (22 U.S.C. 1199).
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended at 49 FR 16989, Apr. 23, 1984]
Sec. 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that
property belonging to foreigners is property belonging to citizens of
the United States, he or she shall be punishable by imprisonment for not
more than three years, and by a fine of not more than $10,000 (22 U.S.C.
1200).
(22 U.S.C. 2658 and 3926)
[22 FR 10789, Dec. 27, 1957, as amended by Dept. Reg. 108.838, 49 FR
16989, Apr. 23, 1984]
PART 16_FOREIGN SERVICE GRIEVANCE SYSTEM--Table of Contents
Sec.
16.1 Definitions.
16.2 General provisions.
16.3 Access to records.
16.4 Time limits for grievance filing.
16.5 Relationship to other remedies.
16.6 Security clearances.
16.7 Agency procedures.
16.8 Agency review.
16.9 Records.
16.10 Foreign Service Grievance Board.
16.11 Grievance Board consideration of grievances.
16.12 Hearing.
16.13 Decisions.
16.14 Reconsideration of a grievance.
16.15 Judicial review.
Authority: Sec. 4 of the Act of May 26, 1949, as amended (63 Stat.
111; 22 U.S.C. 2658); Pub. L. 94-141 (89 Stat. 765); 22 U.S.C. 1037;
sec. 10 of E.O. 11636 (36 FR 24901).
Source: 41 FR 13912, Apr. 1, 1976, unless otherwise noted.
Sec. 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a
citizen of the United States; or for purposes of paragraphs (c) (7) and
(8) of this section, a former officer or employee of
[[Page 86]]
the Service; or in the case of death of the officer or employee, a
surviving spouse or dependent family member of the officer or employee.
(c) Grievance means any act or condition subject to the control of
the Foreign Affairs agencies (the Department of State, the Agency for
International Development, or the U.S. Information Agency) which is
alleged to deprive the grievant of a right or benefit authorized by law
or regulation or is otherwise a source of concern or dissatisfaction to
the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee
allegedly contrary to law or regulation or predicated upon alleged
inaccuracy (including inaccuracy resulting from omission or any relevant
and material document), error, or falsely prejudicial character of any
part of the grievant's official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of
applicable law, regulation, or published policy affecting the terms and
conditions of the grievant's employment or career status;
(3) Allegedly wrongful disciplinary action against an employee
constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the
agency with respect to the grievant's physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in
the grievant's official personnel file;
(6) Action alleged to be in the nature of reprisal or other
interference with freedom of action in connection with an employee's
participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily
retired pursuant to sections 633 and 634 of the Act within 6 years prior
to December 1, 1975, ``grievance'' shall mean a complaint that such
involuntary retirement violated applicable law or regulation effective
at the time of the retirement or that the involuntary retirement was
predicated directly upon material contained in the grievant's official
personnel file alleged to be erroneous or falsely prejudicial in
character; and
(8) When the grievant is a former officer or employee or a surviving
spouse or dependent family member of a former officer or employee,
``grievance'' shall mean a complaint that an allowance or other
financial benefit has been denied arbitrarily, capriciously or contrary
to applicable law or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign
Service officers or employees, which are ordered in accordance with law
and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623
of the Act, or of equivalent bodies, in ranking Foreign Service officers
and employees for promotion on the basis of merit, or judgments in
examinations prescribed by the Board of Examiners pursuant to section
516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C.
929 and 1008, and the pertinent regulations prescribed by the employing
agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals
procedure exists (see appendix A for examples).
A grievance filed under these procedures may be based on matters for
which there is a specific statutory appeals procedure which is
applicable to the Foreign Service grievant. Should the jurisdiction of
the Grievance Board over a specific grievance be placed into question on
grounds that the basis of the grievance is not encompassed within the
Board's authority (Sec. 16.1(d)(4) and Appendix A), the Board shall
consult with the other statutory body concerned, transmitting the views
of the parties concerned before determining whether it has jurisdiction.
(e) Employee organization means any employee organization accorded
recognition as the excusive employee representative pursuant to
Executive Order 11636 dated December 17, 1971.
[[Page 87]]
(f) Grievance Board or Board means the full Foreign Service
Grievance Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having
control over the act or condition forming the subject matter of the
grievance.
(h) Bureau means equivalent organizational elements in State and
USIA, and includes offices in AID.
(i) Days means calendar days.
Sec. 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as
required by law to provide Foreign Service officers and employees (and
their survivors) of the Foreign Affairs agencies, a grievance procedure
to insure a full measure of due process, and to provide for the just
consideration and resolution of grievances of such officers, employees,
and survivors. No regulation promulgated in this part shall be
interpreted or applied in any manner which would alter or abridge the
provisions of the due process established by the Congress in Pub. L. 94-
141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to
settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage
employees to discuss complaints with them and should respond in a timely
manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the
employee's current supervisor or with the responsible officer who has
immediate jurisdiction over the complaint to give that person an
opportunity to resolve the matter, before further steps are taken under
these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from
seeking guidance from any official who might be helpful respecting the
submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or
other person involved in a proceeding hereunder shall be free from any
restraint, interference, coercion, harassment, discrimination, or
reprisal in those proceedings or by virtue of them. The Foreign Affairs
agencies recognize their obligation to insure compliance with this
section. Any person involved or having immediate knowledge of any
alleged breach of this section should call it to the attention of the
pertinent foreign affairs agency through appropriate channels for
corrective action as necessary. Normally such allegations should be
brought to the attention of the senior agency official at the post; and
at Washington, DC, to the Director, Grievance Staff for State; Chief,
Employee Relations Branch for AID and Chief, Employee-Management
Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant's
own choosing at every stage of the proceedings. The grievant and repre-
sentative(s) who are under the control, supervision, or responsibility
of the Foreign Affairs agencies shall be granted reasonable periods of
administrative leave to prepare, to be present, and to present the
grievance.
(3) Any witness under the control, supervision, or responsibility of
a Foreign Affairs agency shall be granted reasonable periods of
administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall
have authority to ensure that no copy of the determination of the agency
head or designee to reject a Grievance Board recommendation, no notation
of the failure of the Grievance Board to find for the grievant, and no
notation that a proceeding is pending or has been held, shall be entered
in the personnel records of the grievant (unless by order of the
Grievance Board as a remedy for the grievance) or those of any other
officer or employee connected the the grievance. The Foreign Affairs
agencies shall maintain grievance records under appropriate safeguards
to preserve confidentiality (Sec. 16.9).
Sec. 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant's
representative shall have access to the record of proceedings, including
the decision of the Board.
[[Page 88]]
(b) Agency records. (1) In considering the validity of a grievance,
the Grievance Board shall have access, to the extent permitted by law,
to any agency record considered by the Board to be relevant to the
grievant and the subject matter of the grievance.
(2) The agency shall, subject to applicable law, promptly furnish
the grievant any agency record which the grievant requests to
substantiate the grievance and which the agency or the Grievance Board
determines is relevant and material to the proceeding. When deemed
appropriate by the agency or the Board, a grievant may be supplied with
only a summary of extract of classified material. If a request by a
grievant for a document is denied prior to or during the agency's
consideration of a grievance, such denial may be raised by the grievant
as an integral part of the grievance before the Board.
(3) These regulations do not require disclosure of any official
agency record to the Grievance Board or a grievant where the head of
agency or deputy determines in writing that such disclosure whould
adversely affect the foreign policy or national security of the United
States.
Sec. 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be
presented at any time if its adverse effect is presently continuing.
Documents contained in official employee personnel files, for example,
shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under
these regulations is forever barred, and the Grievance Board shall not
consider or resolve the grievance, unless the grievance is presented
within a period of 3 years after the occurrence or occurrences giving
rise to the grievance, except that if the grievance arose earlier than 2
years prior to the effective date of these regulations, the grievance
shall be so barred, and no considered and resolved, unless it is
presented within a period of 2 years after the effective date of these
regulations, There shall be excluded from the computation of any such
period any time during which the grievant was unaware of the grounds
which are the basis of the grievance and could not have discovered such
grounds if the grievant had exercised, as determined by the Grievance
Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible
official (Sec. 16.7(b)), transmitted to post or bureau (Sec. 16.7(c))
submitted for agency review (Sec. 16.8) or filed with the Grievance
Board Sec. 16.11(a):
(1) On the date of its dispatch by telegram, registered or certified
mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if
delivered by any other means.
Sec. 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if
the grievant has formally requested, prior to filing a grievance, that
the matter or matters which are the basis of the grievance be considered
or resolved and relief be provided, under another provision of law,
regulation, or executive order, and the matter has been carried to final
decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under
these regulations by paragraph (a) of this section, the grievant may
file under these regulations notwithstanding the fact that such
grievance may be eligible for consideration, resolution, and relief
under a regulation or executive order other than under these
regulations, but such election of remedies shall be final upon the
acceptance of jurisdiction by the Board.
Sec. 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security
clearances whenever necessary to ensure a fair and prompt investigation
and hearing.
Sec. 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered
through the steps provided in this section before they are filed with
the Grievance Board.
(2) During the pendency of agency procedures under this section, the
grievant may request a suspension of the proposed action of the
character of
[[Page 89]]
separation or termination of the grievant, disciplinary action against
the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses or allowances, which is related to the grievance. The
request must be in writing and addressed to the responsible official of
the agencies, as designated in Sec. 16.8(a)(2) stating the reasons for
such suspension. If the request is related to separation or termination
of the grievant, and the agency considers that the grievance is not
frivolous and is integral to the proposed action, the agency shall
suspend its proposed action until completion of agency procedures, and
for a period thereafter if necessary, consistent with paragraph (a) of
Sec. 16.11, to permit the grievant to file a grievance with the Board,
and to request interim relief under paragraph (c) of Sec. 16.11. If a
request is denied, the agency shall provide the grievant in writing the
reason for denial. Nothing in these regulations shall be deemed to
preclude an employee from requesting the suspension of any proposed
action.
(b) Consideration by responsible officer. (1) While every effort
should be made to resolve a complaint by an initial discussion between
an employee and the supervisor or responsible officer, an employee may
present the complaint as a grievance by submitting it in writing, to
that person. (The term ``responsible officer'' as used herein includes
any appropriate officer who has immediate jurisdiction over the
complaint.) The presentation shall include a description of the act or
condition which is the subject of the grievance; its effect on the
grievant; any provision of law, regulation, or agency policy which the
grievant may believe was violated or misapplied; any documentary
evidence readily available to the grievant on which the grievance rests;
the identity of individuals having knowledge of relevant facts; and a
statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use
independent judgment in deciding whether the grievance is meritorious
and what the resolution of it should be. Within 15 days from receipt of
the written grievance, the responsible officer shall provide the
grievant with a written response, which shall include a statement of any
proposed resolution of the grievance.
(3) If the response denies in whole or in part the remedial action
requested, such response shall notify the grievant of the time within
which to appeal the decision, and identity of the senior official, or
designee, to whom the appeal should be addressed. In those cases in
which the senior official, or designee, is the responsible officer to
whom the grievance was initially presented or has participated in the
decision process and has formally approved the written response of the
responsible officer, the grievant shall be so notified and advised that
the grievance may be submitted directly to the agency for review under
Sec. 16.8.
(c) Bureau or post review. (1) If the responsible officer's written
response does not resolve the grievance to the grievant's satisfaction,
within 10 days of receiving it (or, if no response is received, within
25 days after first presenting the grievance), the grievant may pursue
the grievance by transmitting it in writing to the senior official, or
the designee in the bureau or post which has authority to resolve the
grievance. The written transmission shall include all the information
required by paragraph (b)(1) of this section and copies of any
correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall
provide the grievant with a written decision, including any proposed
resolution of the grievance. If the decision denies in whole or in part
the remedial action requested, the communication shall notify the
grievant of the time within which to submit the grievance for agency
review and the identity of the appropriate agency official to whom the
grievance should be addressed.
Sec. 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency
review if the grievance (i) is not within the jurisdiction of a post or
bureau, or (ii) the grievance has been considered but
[[Page 90]]
not resolved to the grievant's satisfaction within the post or bureau as
provided in Sec. 16.7(c) within 10 days after receipt of the post's or
bureau's decision (or, if no response is received, within 25 days after
presenting it to the senior official or the designee). The grievant
shall submit it in writing to the responsible official of the agency
which has control of the act or condition which is the subject of the
grievance.
(2) Responsible officials. The responsible officials of the agencies
are the Deputy Assistant Secretary for Personnel (State), the Director
of Personnel and Manpower (AID), and the Chief, Employee-Management
Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a
description of the act or condition which is the subject of the
grievance; its effect on the grievant; any provision of law, regulation
or agency policy which the grievant may believe was violated or
misapplied; copies of any correspondence under Sec. 16.7(a), any
documentary evidence readily available to the grievant on which the
grievance rests; the identity of individuals having knowledge of
relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the
basis of available documentary evidence, and, in that official's
discretion, interview persons having knowledge of the facts. The agency
review shall be completed and its decision dispatched within 90 days
from the date of the initial written presentation of the grievance. The
grievant shall be informed in writing of the findings of the responsible
official and any proposed resolution of the grievance. The communication
shall also include the time within which the grievant may file a
grievance with the Grievance Board and the appropriate procedure to be
followed in this respect.
Sec. 16.9 Records.
All official records concerning agency consideration of grievances,
except those appropriate to implementation of decisions favorable to
grievants, shall be kept separate from the official personnel record of
the grievant and any other individuals connected with the grievance, and
shall not be accessible to agency personnel other than the grievant, the
grievant's representative, and those responsible for consideration of
grievances.
Sec. 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a
Foreign Service Grievance Board for the Department of State, the Agency
for International Development and the U.S. Information Agency to
consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor
more than 15 members (including a chairperson) who shall be independent,
distinguished citizens of the United States, well known for their
integrity, who are not active officers, employees, or consultants of the
Foreign Affairs agencies (except consultants who served as public
members of the Interim Grievance Board previously established under
section 660, Volume 3, Foreign Affairs Manual) but may be retired
officers or employees. On its initial establishment, the Board shall
consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members
designated by the chairperson, except that hearings within the
continental United States shall be held by panels of at least three
members unless the parties agree otherwise. Reference in these
regulations to the Grievance Board shall be considered to be reference
to a panel or member of the Grievance Board where appropriate. All
members of the Grievance Board shall act as impartial individuals in
considering grievances.
(d) The members of the Grievance Board, including the chairperson,
shall be appointed by the Secretary of State after being designated by
the written agreement of the Foreign Affairs agencies and the employee
organization.
(e) The Board chairperson and other members shall be appointed for
terms of 2 years, subject to renewal upon the agreement of the Foreign
Affairs agencies and the employee organization; except that the terms of
7 of the initially
[[Page 91]]
appointed members shall expire at the end of one year.
(f) Any vacancies shall be filled by the Secretary of State upon the
nomination by the Board following the agreement of the agencies and the
employee organization.
(g) Compensation. Members, including the chairperson, who are not
employees of the Federal Government shall receive compensation for each
day they are performing their duties as members of the Grievance Board
(including travel time) at the daily rate paid an individual at GS-18
level of the General Schedule under section 5332 of title 5 of the
United States Code.
(h) Removal. Grievance Board members shall be subject to removal by
the Secretary of State for corruption, other malfeasance, or the
demonstrated incapacity to perform their functions. No member shall be
removed from office until after the Board of the Foreign Service has
conducted a hearing and made its recommendations in writing to the
Secretary of State, except where the right to a hearing is waived in
writing. The Board of the Foreign Service shall provide a member with
full notice of the charges against that member, and afford a member the
right to counsel, to examine and cross-examine witnesses, and to present
documentary evidence.
(i) Grievance Board procedures. In accordance with part J, title VI
of the Act, the Board may adopt regulations concerning the organization
of the Board and such other regulations as mey be necessary to govern
its proceedings.
(j) Board facilities and staff support. The Grievance Board may
obtain facilities, services, and supplies through the general
administrative services of the Department of State. All expenses of the
Board, including necessary costs of the grievant's travel and travel-
related expenses, shall be paid out of funds appropriated to the
Department for obligation and expenditure by the Board. At the request
of the Board, officers and employees on the rolls of the Foreign Affairs
agencies may be assigned as staff employees to the Grievance Board.
Within the limit of appropriated funds, the Board may appoint and fix
the compensation of such other employees as the Board considers
necessary to carry out its functions. The officers and employees so
appointed or assigned shall be responsible solely to the Grievance Board
and the Board shall prepare the performance evaluation reports for such
officers and employees. The records of the Grievance Board shall be
maintained by the Board and shall be separate from all other records of
the Foreign Affairs agencies.
Sec. 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved
satisfactorily under agency procedures (Sec. 16.7) shall be entitled to
file a grievance with the Grievance Board no later than 60 days after
receiving the agency decision. In the event that an agency has not
provided its decision within 90 days of presentation, the grievant shall
be entitled to file a grievance with the Grievance Board no later than
150 days after the date of presentation to the agency. The Board may
extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance
Board finds that a grievance has not been presented for agency
consideration or that a grievance has been expanded or modified to
include materially different elements, the Board shall return the
grievance to the official responsible for final agency review unless the
agency waives any objection to Board consideration of the grievance
without such review.
(c) Prescription of interim relief. If the Grievance Board
determines that the agency is considering any action of the character of
separation or termination of the grievant, disciplinary action against
the grievant, or recovery from the grievant of alleged overpayment of
salary, expenses, or allowances, which is related to a grievance pending
before the Board, and that such action should be suspended, the agency
shall suspend such action until the Board has ruled upon the grievance.
Notwithstanding such suspension of action, the head of the agency
concerned or a chief of mission or principal officer may exclude an
officer or employee from official
[[Page 92]]
premises or from the performance of specified duties when such exclusion
is determined in writing to be essential to the functioning of the post
or office to which the officer or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at
the request of a grievant in any case which involves disciplinary
action, or a grievant's retirement from the Service under sections 633
and 634 of the Act, or which in the judgment of the Board can best be
resolved by a hearing or by presentation of oral argument. In those
grievances in which the Board holds no hearing, the Board shall offer to
each party the opportunity to review and to supplement, by written
submission, the record of proceedings prior to its decision.
Sec. 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable
number of representatives of the grievant's own choosing, and a
reasonable number of agency representatives, are entitled to be present
at the hearing. The Grievance Board may, after considering the views of
the parties and any other individuals connected with the grievance,
decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by
oath or affirmation which any Board member or person designated by the
Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine
witnesses at the hearing or by deposition, and to serve interrogatories
answered by the other party unless the Board finds such interrogatory
irrelevant or immaterial. Upon request of the Board, or upon a request
of the grievant deemed relevant and material by the Board, and agency
shall promptly make available at the hearing or by deposition any
witness under its control, supervision or responsibility, except that if
the Board determines that the presence of such witness at the hearing is
required for just resolution of the grievance, then the witness shall be
made available at the hearing, with necessary costs and travel expenses
provided by the agency.
(3) During any hearings held by the Board, any oral or documentary
evidence may be received but the Board shall exclude any irrelevant,
immaterial, or unduly repetitious evidence normally excluded in hearings
conducted under the Administrative Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be
part of the record of proceedings.
Sec. 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record
as the Board may find appropriate in the absence of a hearing, the board
shall expeditiously decide the grievance on the basis of the record of
proceedings. In each case the decision of the Board shall be in writing,
shall include findings of fact, and shall include the reasons for the
Board's decision.
(b) If the Grievance Board finds that the grievance is meritorious,
the Board shall have the authority within the limitations of the
authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the
grievant which the Board finds to be inaccurate, erroneous, or falsely
prejudicial;
(2) To reverse and administrative decision denying the grievant
compensation including related within-class salary increases pursuant to
section 625 of the Act or any other perquisite of employment authorized
by law or regulation when the Board finds that such denial was
arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in
consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and
regulations, an employee where it is clearly established that the
separation or suspension without pay of the employee was unjustified or
unwarranted;
(5) To order an extension of the time of an employee's eligibility
for promotion to a higher class where the employee suffered career
impairment in consequence of the matter by which the employee is
aggrieved;
[[Page 93]]
(6) To order that an employee be provided with facilities relating
to the physical working environment which the employee has been denied
arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial
review as provided for in section 694 of the Act, except that
reinstatement of former officers who have filed grievances under Sec.
16.1(c)(7) shall be presented as Board recommendations, the decision on
which shall be subject to the sole discretion of the agency head or
designee, who shall take into account the needs of the Service in
deciding on such recommendations, and shall not be subjected to judicial
review under section 694 of the Act. The reason(s) for the agency head's
(or designee's) decision will be conveyed in writing to the Board and
the grievant.
(d) If the Board finds that the grievance is meritorious and that
remedial action should be taken that directly relates to promotion or
assignment of the grievant, or to other remedial action, including
additional step increases, not provided for in paragraph (b) of this
section, or if the Board finds that the evidence before it warrants
disciplinary action against any officer or employee, it shall make an
appropriate recommendation to the head of the agency, and forward to the
head of the agency the record of the Board's proceedings, including the
transcript of the hearing, if any. The head of the agency (or designee,
who shall not have direct responsibility for administrative management)
shall make a written decision to the parties and to the Board on the
Board's recommendation within 30 days from receipt of the
recommendation. A recommendation of the Board may be rejected in part or
in whole if the action recommended would be contrary to law, would
adversely affect the foreign policy or security of the United States, or
would substantially impair the efficiency of the Service. If the
decision rejects the Board's recommendation in part or in whole, the
decision shall state specifically any and all reasons for such action.
Pending the decision, there shall be no ex parte communications
concerning the grievance between the agency head, or designee, and any
person involved in the grievance proceeding.
Sec. 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the
Board may obtain reconsideration by the Board only upon presenting newly
discovered or previously unavailable material evidence not previously
considered by the Board and then only upon approval of the Board.
Sec. 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations,
and revisions thereto, and final actions of the agency head (or
designee) or the Grievance Board hereunder, in the District Courts of
the United States, in accordance with the standards set forth in chapter
7 of title 5 of the United States Code. Section 706 of title 5 shall
apply without limitation or exception.
PART 17_OVERPAYMENTS TO ANNUITANTS UNDER THE FOREIGN SERVICE RETIREMENT
AND DISABILITY SYSTEM--Table of Contents
Sec.
17.1 Definitions.
17.2 General provisions.
17.3 Notice to annuitants.
17.4 Initial determination.
17.5 Standards.
17.6 Notice of decision and right of appeal.
17.7 Appeal.
Authority: 22 U.S.C. 842; 22 U.S.C. 1061; 22 U.S.C. 2658; and E.O.
10897 (25 FR 12439).
Source: 44 FR 47928, Aug. 16, 1979, unless otherwise noted.
Sec. 17.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Annuitant has the meaning set forth in section 804(1) of the Act
(22 U.S.C. 1064(1)).
(c) Foreign Service Grievance Board means the Board established by
22 CFR 16.10 under sections 691 and 692 of the Act (22 U.S.C. 1037-
1037c).
(d) Overpayments has the same meaning as in Sec. 822(d) of the Act
(22 U.S.C. 1076a(d)).
(e) Secretary means the Secretary of State.
[[Page 94]]
Sec. 17.2 General provisions.
Section 822(d) of the Act (22 U.S.C. 1076(d)) provides recovery of
overpayments by the Department of State of benefits to annuitants may
not be made when, in the judgment of the Secretary, the individual
recipient is without fault and recovery would be against equity and good
conscience or administratively infeasible. This part establishes
procedures for notification to annuitants of their rights, for
administrative determination of those rights and for appeals of negative
determinations. This part also establishes procedures by which an
annuitant can contest a determination that the annuitant has been
overpaid.
Sec. 17.3 Notice to annuitants.
The Office of Finance, Department of State, shall give written
notification to any person who has received an overpayment, the cause of
the overpayment, the intention of the Department to seek repayment of
the overpayment, and the basis for that action, the right of the
annuitant to contest the alleged overpayment or to request a waiver of
recovery, and the procedure to follow in case of such contest or appeal.
The notification shall allow at least 30 days from its date within which
the annuitant may file a written response, which may include evidence,
argument, or both.
Sec. 17.4 Initial determination.
(a) The Director of the Office of Finance will be responsible for
preparing an administrative file as a basis for determination in each
case where an annuitant contests a claim to recover overpayment or
requests waiver of recovery. This file shall include: all correspondence
with the annuitant; documentation on the computation of the annuity or
annuities in question; and any information available to the Department
which bears on the application of the standards of waiver of recovery to
the particular case.
(b) On the basis of the administrative file, the Director, after
consultation with and review of the preliminary findings by the Office
of the Legal Adviser and Office of Employee Relations, Bureau of
Personnel, shall prepare a preliminary finding. This preliminary finding
shall contain a positive or negative determination on all material
issues raised by the contest or request for waiver. In the latter case,
there shall be a determination of the applicability or non-applicability
of each of the standards set forth in Sec. 17.5.
(c) The Director shall make the final administrative determination.
(d) At any time before the final administrative decision, the
Director may request the annuitant to supplement his or her submission
with additional factual information and may request that the annuitant
authorize the Department of State to have access to bank and other
financial records bearing on the application of these regulations.
Sec. 17.5 Standards.
(a) General. (1) Waiver of overpayment will not be allowed in any
case prior to receipt and evaluation of a statement of financial
responsibility, duly sworn by the recipient of the overpayment, except
in those cases where the facts make it obvious that the individual has
no capacity to repay. Such statement will be waived in the latter case.
(2) Waiver of overpayment will not be allowed when overpayment has
been made to an estate.
(b) Fault. (1) Determinations of ``fault'' or the absence thereof,
will be made according to the commonly understood and standard concepts
of equity applicable thereto.
(2) A prerequisite to waiver of overpayment shall be clear and
convincing showing that the person from whom recovery would otherwise be
made did not cause, or was not otherwise responsible for the
overpayment, i.e., he or she performed no act of commission or omission
that resulted in the overpayment. Pertinent consideration to be made in
this area are:
(i) Whether payment resulted from the individual's incorrect (not
necessarily fraudulent) statement.
(ii) Whether he or she knew the payment was erroneous and, if so,
whether his or her subsequent failure to act resulted from desire or
ignorance.
(iii) Whether he or she failed to disclose material facts in his or
her possession.
[[Page 95]]
(iv) Whether he or she could have determined that the payment was
erroneous.
(c) Equity and good conscience. (1) ``Equity and good conscience''
as defined in equity and the commonly understood meaning thereof shall
be attached to waiver determinations. In addition, the decision must be
made whether the exercise of waiver of overpayment would be in
opposition to the basic purpose of title VII of the Foreign Service Act
(22 U.S.C. 1061, et seq.) and would injure the administration of such
title.
(2) The following guides will also be applied, as appropriate:
(i) Waiver of overpayment may be granted when an individual by
reason of receipt of the overpayment has: (a) Relinquished a valuable
right; or (b) changed his or her position for the worse.
(ii) Waiver of overpayment may be granted when the individual has
consistently acted in good faith regarding the overpayment.
(iii) Waiver of overpayment cannot be granted when the individual
has been found to be at fault or if the overpayment has been obtained by
fraud.
Sec. 17.6 Notice of decision and right of appeal.
If the annuitant, without good cause shown, fails or refuses to
produce the requested additional information or authorization, the
Department of State is entitled to made adverse inferences with respect
to the matters sought to be amplified, clarified, or verified.
(a) The final administrative decision shall be reduced to writing
and the Director shall send it expeditiously to the annuitant.
(b) If the decision is adverse to the annuitant, the notification of
the decision shall include a written description of the annuitant's
rights of appeal to the Foreign Service Grievance Board, including time
to file, where to file, and applicable procedure.
Sec. 17.7 Appeal.
The Foreign Service Grievance Board shall entertain any appeal under
this part in accordance with the regulations of the Board set forth in
22 CFR part 16. The Director of the Office of Finance, with such
assistance as may be necessary, shall represent the Department in
proceedings before the Board. The decision of the Board is final.
PART 18_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--Table of Contents
Subpart A_General Provisions
Sec.
18.1 Scope.
18.2 Definitions.
18.3 Director General.
18.4 Records.
Subpart B_Applicable Rules
18.5 Interpretative standards; advisory opinions.
Subpart C_Administrative Enforcement Proceedings
18.6 Authority to prohibit appearances.
18.7 Report of violation by a former employee.
18.8 Institution of proceeding.
18.9 Contents of complaint.
18.10 Service of complaint and other papers.
18.11 Answer.
18.12 Motions and requests.
18.13 Representation.
18.14 Hearing examiner.
18.15 Hearings.
18.16 Evidence.
18.17 Depositions.
18.18 Proposed findings and conclusions.
18.19 Decision of the hearing examiner.
18.20 Appeal to the Board of Appellate Review.
18.21 Decision of the Board of Appellate Review.
18.22 Notice of disciplinary action.
Authority: 18 U.S.C. 207, as amended, 92 Stat. 1864.
Source: 46 FR 2608, Jan. 12, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 18.1 Scope.
This part contains rules governing disciplinary action against a
former officer or employee of the Department of State, including the
Foreign Service, because of a violation of the post employment conflict
of interest prohibitions. Such disciplinary action may include
prohibition from practice before the Department of State and any
component thereof as defined in this part.
[[Page 96]]
Sec. 18.2 Definitions.
For the purpose of this part--
(a) The term Department means the Department of State and includes
the Foreign Service.
(b) The term Director General means the Director General of the
Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance
before, or, with the intent to influence, any oral or written
communication to the Department on a pending matter of business on
behalf of any other person (except the United States).
Sec. 18.3 Director General.
The Director General shall institute and provide for the conduct of
disciplinary proceedings involving former employees of the Department as
authorized by 18 U.S.C. 207(j), and perform such other duties as are
necessary or appropriate to carry out his/her functions under this part.
Sec. 18.4 Records.
The roster of all persons prohibited from practice before the
Department shall be available to public inspection at the Office of
Director General. Other records may be disclosed upon specific request,
in accordance with appropriate disclosure regulations of the Department.
Subpart B_Applicable Rules
Sec. 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the
Department violated 18 U.S.C. 207(a), (b) or (c) will be made in
conformance with the standards established in the interpretative
regulations promulgated, either in interim or final form by the Office
of Government Ethics and published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know
whether a proposed course of conduct would be in conformity with the Act
or the interpretive regulations thereunder may contact the Assistant
Legal Adviser for Management to request an advisory opinion.
Subpart C_Administrative Enforcement Proceedings
Sec. 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after
notice and opportunity for a hearing, that a former officer or employee
of the Department has violated 18 U.S.C. 207(a), (b) or (c), the
Director General in his/her discretion may prohibit that person from
engaging in practice before the Department for a period not to exceed
five years, or may take other appropriate disciplinary action.
Sec. 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to
believe that a former officer or employee of the Department has violated
any provision of this part, or if any such officer or employee receives
information to that effect, he/she shall promptly make a written report
thereof, which report or a copy thereof shall be forwarded to the
Director General. If any other person has information of such
violations, he/she may make a report thereof to the Director General or
to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this
part with the Department of Justice in cases where it initiates criminal
prosecution.
Sec. 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient
reason to believe that any former officer or employee of the Department
has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an
administrative disciplinary proceeding. The proceeding may be for that
person's suspension from practice before the Department or for some
lesser penalty. The proceeding shall be instituted by a complaint which
names the respondent and is signed by the Director General and filed in
his/her office. Except in cases of willfulness, or where time, the
nature of the proceeding, or the public interest does not permit, a
proceeding will not be instituted under this section until facts or
conduct which may warrant such action have been called
[[Page 97]]
to the attention of the proposed respondent in writing and he/she has
been accorded the opportunity to provide his/her position on the matter.
Sec. 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations
which constitute the basis for the proceeding. A complaint shall be
deemed sufficient if it fairly informs the respondent of the charges
against him/her so that the respondent is able to prepare a defense.
Written notification shall be given of the place and of the time within
which the respondent shall file his/her answer, which time shall not be
less than 15 days from the date of service of the complaint. Notice
shall be given that a decision by default may be rendered against the
respondent in the event he/she fails to file an answer.
Sec. 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon
the respondent by certified mail; by delivering it to the respondent or
his/her attorney or agent of record either in person; or by leaving it
at the office or place of business of the respondent, attorney or agent;
in any other manner which has been agreed to by the respondent; or by
first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the
complaint may be served upon a respondent as provided in paragraph (a)
of this section or by mailing the paper by first-class mail to the
respondent at the last address known to the Director General, or by
mailing the paper by first-class mail to the respondent's attorney or
agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in
connection with a proceeding, and the place of filing is not specified
by this subpart or by rule or order of the hearing examiner, the paper
shall be filed with the Director General, Department of State,
Washington, DC 20520. All papers shall be filed in duplicate.
Sec. 18.11 Answer.
(a) Filing. The respondent's answer shall be filed in writing within
the time specified in the complaint or notice of institution of the
proceeding, unless on application the time is extended by the Director
General. The answer shall be filed in duplicate with the Director
General.
(b) Contents. The answer shall contain a statement of facts which
constitute the grounds of defense, and it shall specifically admit or
deny each allegation set forth in the complaint. The respondent may also
state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every
allegation in the complaint which is not denied in the answer shall be
deemed to be admitted and may be considered as proved. Failure to file
an answer within the time prescribed in the notice to the respondent,
except as the time for answer is extended by the Director General shall
constitute a waiver of hearing, and the Director General may make his/
her decision by default without a hearing or further procedure.
Sec. 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed
with the Director General.
Sec. 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she
may be represented by counsel or other representative. The Director
General may be represented by an attorney or other employee of the
Department.
Sec. 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to
continue the administrative disciplinary proceedings, he/she shall
appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have
authority, in connection with any proceeding assigned or referred to
him/her, to do the following:
(1) Take evidence under appropriate formalities;
[[Page 98]]
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course
and conduct;
(4) Adopt rules of procedure and modify the same from time to time
as occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and
examine witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the
settlement or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or
appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
Sec. 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the
testimony of witnesses shall be taken under oath or affirmation.
Hearings will be closed unless an open hearing is requested by the
respondent, except that if classified information or protected
information of third parties is likely to be adduced at the hearing, it
will remain closed. If either party to the proceeding fails to appear at
the hearing, after due notice thereof has been sent to him/her, he/she
shall be deemed to have waived the right to a hearing and the hearing
examiner may make a decision against the absent party by default.
Sec. 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not
controlling in hearings under this part. However, the hearing examiner
shall exclude evidence which is irrelevant, immaterial, or unduly
repetitious.
Sec. 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the
parties in writing or the written approval of the hearing examiner, be
taken by either the Director General or the respondent or their duly
authorized representatives. Depositions may be taken upon oral or
written interrogatories. There shall be at least 10 days written notice
to the other party. The requirement of a 10-day written notice may be
waived by the parties in writing. When a deposition is taken upon
written interrogatories, any cross-examination shall be upon written
interrogatories. Copies of such written interrogatories shall be served
upon the other party with the notice, and copies of any written cross-
interrogation shall be mailed or delivered to the opposing party at
least 5 days before the date of taking the depositions, unless the
parties mutually agree otherwise. Expenses in the reporting of
depositions shall be borne by the party at whose instance the deposition
is taken.
Sec. 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the
complaint or where a party has failed to appear at the hearing, the
hearing examiner, prior to making his/her decision, shall afford the
parties a reasonable opportunity to submit proposed findings and
conclusions and supporting reasons therefor.
Sec. 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the
receipt of any proposed findings and conclusions timely submitted by the
parties, the hearing examiner shall make the initial decision. The
decision shall include
(a) A statement of findings and conclusions, as well as the reasons
or basis therefor, upon all the material issues of fact, law, or
discretion presented on the record, and
(b) An order of suspension from practice before the Department or
other appropriate disciplinary action, or an order of dismissal of the
complaint. The hearing examiner shall file the decision with the
Director General and shall transmit a copy thereof to the respondent or
his/her attorney of record. A party adversely affected by the decision
shall be given notice of his or her right to appeal to the Board of
Appellate Review (part 7 of this chapter)
[[Page 99]]
within 30 days from the date of the hearing examiner's decision.
Sec. 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner's decision,
either party may appeal to the Board of Appellate Review. The appeal
shall be taken by filing notice of appeal, in triplicate, with the Board
of Appellate Review, which shall state with particularity exceptions to
the decision of the hearing examiner and reasons for such exceptions. If
an appeal is by the Director General, he/she shall transmit a copy
thereof to the respondent. Within 30 days after receipt of an appeal or
copy thereof, the other party may file a reply brief, in triplicate,
with the Board of Appellate Review. If the reply brief is filed by the
Director General, he/she shall transmit a copy of it to the respondent.
The Director General shall transmit the entire case record to the Board
of Appellate Review within 30 days after an appeal has been taken.
Sec. 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis
of the record. The decision of the Board shall be final, and not subject
to further administrative review. Copies of the Board's decision shall
be forwarded promptly to the parties by the Board.
Sec. 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or
employee from practice before the Department, the Director General shall
give notice thereof to appropriate officers and employees of the
Department. Officers and employees of the Department shall refuse to
participate in any appearance by such former officer or employee or to
accept any communication which constitutes the prohibited practice
before the Department during the period of suspension. The Director
General shall take other appropriate disciplinary action as may be
required by the final order.
PART 19_BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE
FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM--Table of Contents
Sec.
19.1 Authorities.
19.2 Definitions.
19.3 Participants.
19.4 Special rules for computing creditable service for purposes of
payments to former spouses.
19.5 Required notifications to department respecting spouses and former
spouses.
19.5-1 Notification from participant or annuitant.
19.5-2 Notification to Department from former spouses.
19.5-3 Residence of spouse during service at unhealthful post.
19.6 Court orders and divorce decrees.
19.6-1 Orders by a court.
19.6-2 Qualifying court order.
19.6-3 Application for payment.
19.6-4 Date of court orders.
19.6-5 Preliminary review.
19.6-6 Notification.
19.6-7 Decision.
19.6-8 Allotment to beneficiary.
19.6-9 Limitations.
19.6-10 Liability.
19.7 Spousal agreements.
19.7-1 Purpose.
19.7-2 Agreement with spouse.
19.7-3 Agreement with former spouse.
19.7-4 Form of agreement.
19.7-5 Limitations.
19.7-6 Duration and precedence of spousal agreements.
19.8 Obligations of members.
19.9 Pension benefits for former spouses.
19.9-1 Entitlement.
19.9-2 Commencement and termination.
19.9-3 Computation and payment of pension to former spouse.
19.9-4 Effect on annuitant.
19.10 Types of annuities to members.
19.10-1 Full annuity.
19.10-2 Reduced annuity with regular survivor annuity to spouse or
former spouse.
19.10-3 Marriage after retirement.
19.10-4 Death or divorce of a spouse and remarriage after retirement.
19.10-5 Reduced annuity with additional survivor annuity to spouse of
former spouse.
19.10-6 Benefits for recall service.
19.11 Survivor benefits.
19.11-1 Kinds of survivor benefits.
19.11-2 Regular survivor annuity for a former spouse.
19.11-3 Regular survivor annuity for a spouse.
[[Page 100]]
19.11-4 Procedure in event a spouse or former spouse is missing.
19.11-5 Commencement, termination and adjustment of annuities.
19.11-6 Death during active duty.
19.11-7 Annuity payable to surviving child or children.
19.11-8 Required elections between survivor benefits.
19.12 Employment in a Government agency.
19.13 Lump-sum payment.
19.13-1 Lump-sum credit.
19.13-2 Share payable to a former spouse.
19.13-3 Payment after death of principal.
19.14 Waiver of annuity.
Authority: Secs. 206 and 801 of Foreign Service Act of 1980 (94
Stat. 2079, 2102); Sec. 4 of Act of May 26, 1949 (22 U.S.C. 2658).
Source: 46 FR 12958, Feb. 19, 1981, unless otherwise noted.
Redesignated at 46 FR 18970, Mar. 27, 1981.
Sec. 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94
Stat. 2102) (hereafter ``the Act''), and any Executive order issued
under authority of section 827 of the Act.
Sec. 19.2 Definitions.
(a) Agencies means the Department, the Agency for International
Development (AID), the International Communication Agency (USICA), the
Foreign Agricultural Service (FAS), and the Foreign Commercial Service
(FCS).
(b) Annuitant means any person including a former participant or
survivor who meets all requirements for an annuity from the Fund under
the provisions of the Foreign Service Act of 1980, or any other law and
who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative
action before deductions and exclusive of additional compensation of any
kind. It includes the salary fixed by sections 401, 402, 403, and 406 of
the Act and salary incident to assignment under section 503 of the Act.
Basic salary excludes premium pay for overtime, night, Sunday and
holiday work, allowances, post and special differentials, and charge
pay.
(d) Chief of Mission means a principal officer in charge of a
diplomatic mission of the United States or of a United States Office
abroad which has been designated diplomatic in nature or any member of
the Foreign Service assigned under the terms of the Act to be charge
d'affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an
unmarried child, under the age of 18 years, or such unmarried child
regardless of age who because of physical or mental disability incurred
before age 18 is incapable of self-support. In addition to the offspring
of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than
one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was
filed by a participant, and who is adopted by the surviving spouse of
the participant after the latter's death. ``Child'' also means an
unmarried student under the age of 22 years. For this purpose, a child
whose twenty-second birthday occurs before July 1 or after August 31 of
a calendar year, and while a student, is deemed to have become 22 years
of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of
Columbia.
(g) Court Order means any court decree of divorce or annulment, or
any court approved property settlement agreement incident to any court
decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of
divorce or annulment.
(j) Expressly provided for means a direction by a court order to
divide a member's Foreign Service Retirement benefits or survivor
benefits and awarding a portion of such benefits to an eligible
beneficiary.
(k) Former spouse \1\ means a former wife or husband of a
participant or
[[Page 101]]
former participant who was married to such participant for not less than
ten years during periods of service by that participant which are
creditable under section 816 of the Act provided the participant was
making contributions to the Fund under section 805 of the Act during
some portion of such service, and provided the divorce occurred after
February 15, 1981. For this purpose, a former spouse shall not be
considered as married to a participant for periods assumed to be
creditable under section 808 of the Act in the case of a disability
annuity or section 809 of the Act in the case of a death in service. A
former spouse will be considered married to a participant for any extra
period of creditable service provided under section 817 of the Act for
service at an unhealthful post during which the former spouse resided
with the participant. See Sec. 19.5-3 for procedures to determine this
extra period of marriage.
---------------------------------------------------------------------------
\1\ Note: Section 804(6) of the Act defines ``former spouse'' with
respect to duration of marriage as being married to a participant ``for
not less than 10 years during periods of service by that participant
which are creditable under section 816.'' The Department interprets this
as necessarily implying that the marriage must have covered a period of
at least one day while the member of the Foreign Service was a
participant in the System.
---------------------------------------------------------------------------
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department's Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service
after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric
Administration or predecessor organization after June 30, 1961.
However, this definition does not include service in the National Guard,
except when ordered to active duty in the service of the United States.
(o) Participant means a person as described in Sec. 19.3.
(p) Previous spouse means any person formerly married to a
principal, whether or not such person qualifies as a former spouse under
paragraph (k) of this section.
(q) Principal means a participant or former participant whose
service forms the basis for a benefit under chapter 8 of the Act for a
spouse, previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department's Retirement Division in the
Bureau of Personnel.
(s) Pro Rata Share means, in the case of any former spouse of any
participant or former participant, a percentage which is equal to the
percentage that (1) the number of years and months during which the
former spouse was married to the participant during the creditable
service of that participant is of (2) the total number of years and
months of such creditable service. When making this calculation, item
(1) is adjusted in accordance with paragraph (k) of this section and
item (2) is adjusted in accordance with Sec. 19.4. In the total period,
30 days constitutes a month and any period of less than 30 days is not
counted.
(t) Spousal Agreement means any written agreement between a
participant or former participant, and the participant's spouse or
former spouse.
(u) Student means a child regularly pursuing a full-time course of
study or training in residence in a high school, trade school, technical
or vocational institute, junior college, university, or comparable
recognized educational institution. A child who is a student shall not
be deemed to have ceased to be a student during any interim between
school years, semesters, or terms if the interim or other period of
nonattendance does not exceed 5 calendar months and if the child shows
to the satisfaction of the Retirement Division (PER/ER/RET) that the
child has a bona fide intention of continuing to pursue such course
during the school year, semester, or term immediately following the
interim.
(v) Surviving Spouse means the surviving wife or husband of a
participant or annuitant who, in the case of death in service or
marriage after retirement, was married to the participant or annuitant
for at least one year immediately preceding death or is the parent of a
child born of the marriage.
(w) System means the Foreign Service Retirement and Disability
System.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.3 Participants.
The following persons are participants in the System:
[[Page 102]]
(a) Members of the Service serving under a career appointment or as
a career candidate under section 306 of the Act (1) in the Senior
Foreign Service, or (2) assigned to a salary class in the Foreign
Service Schedule;
(b) Any person not otherwise entitled to be a participant who has
served as chief of mission or an ambassador at large for an aggregate
period of 20 years or more, exclusive of extra service credit for
service at unhealthful posts, and who has paid into the Fund a special
contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee
and who completed, prior to February 15, 1981, at least 5 years of
satisfactory service as a grantee, as determined by the Director of
Personnel of USICA, or under any other appointment under the Foreign
Service Act of 1946, as amended, who has paid into the Fund a special
contribution for such service.
(d) Any person converted to the competitive service pursuant to
section 2104 of the Act who elects to participate in the System pursuant
to section 2106(b)(1) or (2) shall remain a participant so long as he/
she is employed in an agency which is authorized to utilize the Foreign
Service personnel system.
Sec. 19.4 Special rules for computing creditable service for purposes
of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor
annuity or lump-sum payable to a former spouse, the following shall be
considered creditable service--
(a) The entire period of a principal's approved leave without pay
during full-time service with an organization composed primarily of
Government employees irrespective of whether the principal elects to
make payments to the Fund for this service;
(b) The entire period of Government service for which a principal
received a refund of retirement contributions which he/she has not
repaid unless the former spouse received under Sec. 19.13 a portion of
the (lump-sum) refund or unless a spousal agreement or court order
provided that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years.
The period covered by the credit for unused sick leave is not creditable
for this purpose.
Sec. 19.5 Required notifications to Department respecting spouses and
former spouses.
Sec. 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after
February 15, 1981, he/she shall notify the Department (PER/ER/RET) of
the divorce on or prior to its effective date. The notice shall include
the effective date of the divorce, the full name, mailing address, and
date of birth of the former spouse and the date of the member's marriage
to that person, and enclose a certified copy of the divorce decree. If
there is a court order or spousal agreement concerning payment or
nonpayment of Foreign Service benefits to the former spouse, the
original or a certified copy of the order or agreement shall also be
forwarded to PER/ER/RET. In the absence of a court order or spousal
agreement providing otherwise, the Department will pay a pro rata share
of the member's benefits to the former spouse. (A former spouse of a
former participant who separated from the Service on or before February
15, 1981 is not eligible for a pension under Sec. 19.9, i.e. not
eligible for a pro rata share of the principal's annuity.) Upon receipt
of notice of a divorce, a court order, or spousal agreement, the
Department will proceed as indicated in Sec. 19.6 or Sec. 19.7.
Delinquent notice to the Department of the divorce of an annuitant will
result in retroactive payments to any qualified former spouse to the
extent that the retroactive payments can be deducted from future annuity
payments to the principal as stated in Sec. 19.6-4.
Sec. 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the
following on a timely basis:
(a) A divorce from a participant or former participant when the
former spouse is notified by the court of the
[[Page 103]]
divorce before the participant is notified;
(b) Any change in address; and
(c) Any remarriage.
Notices shall be sent to the Department of State, Attention PER/ER/RET,
Washington, DC 20520.
Sec. 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former
spouse, and the determination of whether a person qualifies as a
``former spouse'' depends on the length of the marriage. The latter,
under the definition in the Act and when the principal has received
extra service credit for an assignment to an unhealthful post, depends
upon whether a spouse has resided with the principal at the unhealthful
post. In order to determine residency for this purpose, whenever a
married participant is assigned to an unhealthful post for which he/she
does not receive post differential and does receive or request extra
service credit, the participant shall report on Form OF-140, Election to
Receive Extra Service Credit Towards Retirement, whether his/her spouse
is or is not residing at the post. Although a chief of mission is not
required to submit Form OF-140 in order to receive extra credit for
service at an unhealthful post, he/she must nevertheless submit this
form if the chief of mission has a spouse that does not accompany him/
her at post for the entire assignment. Both the participant and spouse
shall sign the completed form. If there is a change in residence of the
spouse during the assignment, a new joint Form OF-140 shall be filed to
report the change.
(b) Whenever a participant retires or becomes divorced, or whenever
a former participant becomes divorced who has extra service credit for
assignment at unhealthful posts completed prior to the issuance of this
regulation who was married during at least a portion of the assignment,
the participant or former participant shall submit a statement to PER/
ER/RET reporting on whether his/her spouse resided at the unhealthful
post and the dates of such residence. The statement shall be signed by
the principal and his/her spouse or former spouse whenever possible.
(c) In the event of a disagreement between a principal and his/her
spouse or former spouse concerning residency at an unhealthful post, or
the submission of a report or statement by a principal showing a period
of nonresidence at a post by a spouse which is not signed by the spouse,
the determination of residence will be made by PER/ER/RET and based on
records in the Department of payments for travel and allowances plus any
other evidence that can be adduced. In the absence of any evidence to
the contrary, the assumption will be made that the spouse resided at the
post.
Sec. 19.6 Court orders and divorce decrees.
Sec. 19.6-1 Orders by a court.
(a) A court may--
(1) Fix the amount of any pension to a former spouse under Sec.
19.9, or order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former
spouse under paragraphs (a) and (b) of Sec. 19.11, or order that none
be paid;
(3) Order provision of an additional survivor annuity for a spouse
or former spouse under Sec. 19.10-5;
(4) Fix the amount of any benefit under Sec. 19.10-6 based on
recall service payable to a former spouse to whom the annuitant was
married during any portion of the recall service, or order that none be
paid;
(5) Fix the amount of any lump-sum payable to a former spouse under
Sec. 19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in
Sec. 19.8 between a participant and a former spouse, and pursuant to
any court decree of divorce, legal separation or annulment or any court
ordered or approved property settlement agreement incident to any court
decree of divorce, legal separation, or annulment, that any payment from
the Fund which would otherwise be made to a former participant based on
his/her service shall be paid (in whole or in part) by the Secretary of
State to a previous spouse or child of such participant. No
apportionment under this paragraph
[[Page 104]]
may be made of a payment authorized to be paid to a survivor of a
participant or annuitant.
(b) An order by a court that does not meet the definition of
``court'' in Sec. 19.2(f) is not valid for purposes of this section
even though a divorce decree issued by such court may be a basis for pro
rata share payments to a former spouse as described in these
regulations.
Sec. 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be
found to be ``qualified'' by PER/ER/RET acting for the Secretary of
State. A qualifying court order must--
(1) Be consistent with the terms of the Act and applicable
regulations;
(2) Not direct payment of an amount in excess of the maximum amount
authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a
principal's Foreign Service retirement benefit or survivor benefit. If a
court directs or implies that a principal, rather than the Secretary of
State or the Government, make the payments, the order will not be
considered qualified unless the principal does not object during the 30-
day notice period provided under Sec. 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it
can be readily calculated from information in the normal files of the
Department;
(5) Not make payment contingent upon events other than those on
which other payments from the Fund are based such as age, marital status
and school attendance; and
(6) Not be in conflict with any previously issued court order which
remains valid.
(b) No apportionment of annuity to a beneficiary under Sec. 19.6-
1(a) (1) or (6) shall exceed the net annuity of the principal. The net
annuity is computed by excluding from the gross annuity the amounts
which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906
of Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life
Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts
withheld are not greater than they would be if the individual claimed
all dependents to which he/she was entitled.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the
beneficiary must submit an application in writing to the Chief of the
Retirement Division (PER/ER/RET), Department of State, Washington, DC
20520. The application must be typed or printed, signed by the
beneficiary, and include--
(1) The full name, date of birth, current address and current
marital status of the beneficiary;
(2) Full name and date of birth of the participant or former
participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former
spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended,
superseded, or set aside;
The original of the court order or a recently certified copy must be
enclosed with the application, or a statement appended that such a copy
has been sent to the Department by other means.
(b) When payments are subject to termination upon the occurrence of
a condition subsequent, such as marriage, remarriage or termination of
schooling, or death of the principal, no payment will be made until the
beneficiary submits a statement to PER/ER/RET that--
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15
calendar days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her
resulting from the occurrence of the condition
[[Page 105]]
subsequent. PER/ER/RET may require periodic recertification of these
statements.
Sec. 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a
former spouse under Sec. 19.9 may not be given effect by the Department
if it is issued more than 12 months after the divorce becomes final. A
court order adjusting the amount of a regular or additional survivor
annuity to a former spouse under Sec. 19.11-2 or Sec. 19.10-5 may not
be given effect by the Department if it is issued after the death of the
principal.
(b) A court order issued within 12 months after a divorce becomes
final directing payment of a pension to a former spouse in an amount
other than provided in Sec. 19.9 may be made retroactively effective to
the first of the month in which the divorce becomes final if so
specified by the court. In such event, the Department will adjust any
future payments that may become due to an annuitant and a former spouse
by increasing one and correspondingly reducing the other in order to
give effect to the order of the court. However, if future payments to
one party are not due, as for example if a court orders that no payments
be made to a former spouse, or that 100 percent of an annuity be paid as
pension to a former spouse, the Department will not give retroactive
effect to a court order by collecting overpayments from one party in
order to pay them to the other party and will not make overpayments from
the Fund.
(c) A court order under this chapter involving any payment other
than a pension to a former spouse under Sec. 19.9 may not be given
retroactive effect and shall not be effective until it is determined to
be a qualifying order under Sec. 19.6-5.
Sec. 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under Sec. 19.6-3,
PER/ER/RET will determine whether--
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is
completed, the beneficiary is eligible and the court order appears on
its face to be a qualifying order, PER/ER/RET will provide the
notification required by Sec. 19.6-6, otherwise, it will notify the
applicant of any deficiency or requirement for additional information,
and if the order is determined to be non-qualifying, the basis for such
determination.
(b) Upon receipt of a certified copy of a final decree of divorce,
PER/ER/RET will determine whether--
(1) It is a valid decree. Any decree recognized as valid by the
parties will be considered valid for this purpose. In addition, any non-
recognized decree will be considered valid for this purpose unless:
(i)(A) Neither party was domiciled within the court's jurisdiction,
and
(B) The party denying recognition did not participate in the
proceedings, or
(ii) The party denying recognition was not afforded notice of the
proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse.
If a divorce decree is deemed valid under this paragraph, a pro rata
share payment is due a former spouse unless PER/ER/RET is in receipt of
a court order which it has deemed qualified under paragraph (a) of this
section, or a valid spousal agrement providing otherwise. If it
determines that a pro rata share payment is due, it will provide the
notification required by Sec. 19.6-6, otherwise, unless action is being
taken pursuant to a related court order, it will notify both parties to
the divorce the reason a pro rata share payment is not payable.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a
former spouse or other eligible beneficiary--
(1) a court order which it deems qualified that requires payment to
the beneficiary; or
(2) A final decree of divorce which it deems valid together with a
request for a pro rata share payment--PER/ER/RET will send a copy of the
document
[[Page 106]]
to the principal and a notice stating: (i) That PER/ER/RET deems the
order qualified or the divorce decree valid, (ii) that payments will be
made from the principal's account to the beneficiary and the effective
date of such payments, (iii) the effect of such payments on the
principal's retirement benefit. In the case of any court order with
retroactive or immediate effect, and in the case of pro rata share
payments, the amounts will be withheld from future payments to the
principal but will not be paid to the beneficiary for 30 days from the
notice date in order to give the principal an opportunity to contest the
court order or the validity of the divorce.
PER/ER/RET will provide the former spouse or other beneficiary the same
information, stating the exact amount that will be payable to the
beneficiary and explaining how that amount was calculated.
(b) Notification to a former spouse. When PER/ER/RET receives from a
principal--(1) a court order which it deems qualified that requires or
forbids payment to a former spouse; or (2) a final decree of divorce
which it deems valid without an accompanying court order--PER/ER/RET
will send a copy of the document to the former spouse and a notice
stating: (i) That PER/ER/RET deems the court order qualified or the
divorce decree valid, (ii) that PER/ER/RET intends to honor the court
decree or to make pro rata share payments because of the divorce, (iii)
the effective date, exact amount, and method of calculation of any
payments to the former spouse.
PER/ER/RET will provide the same information to the principal and will
explain the effect any payment to a former spouse will have on the
principal's retirement benefit.
Sec. 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a
principal within the 30-day period under Sec. 19.6-6a, payment will be
made in accordance with the notification. When a response is received,
the Chief, PER/ER/RET will consider the response. If it is shown that a
court order is not qualifying or that a divorce is not valid under terms
of the Act and these regulations, payment proposed in the notification
will not be made. In such a case, PER/ER/RET will advise both parties of
the basis for its decision and the alternative action, if any, that it
proposes to take.
(b) If a principal responding to a notification under Sec. 19.6-6a
objects to the payment or other action proposed by the Department in the
notification based on the validity of the court order or divorce decree,
and the record contains support for the objection, PER/ER/RET will grant
the principal 30 days to initiate formal legal action to determine the
validity of the objection, will continue to delay payment to the former
spouse or other beneficiary during this period, and will notify the
beneficiary of this action. If evidence is submitted that formal legal
action has been started within the 30-day period, the amount of any
proposed payment to a former spouse or other beneficiary will continue
to be withheld from any payments due the principal, but no payment will
be made to the former spouse or other beneficiary until a judicial
decision is rendered or agreement reached between the parties.
[46 FR 12958, Feb. 19, 1981. Redesignated and amended at 46 FR 18970,
Mar. 27, 1981]
Sec. 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs
or implies that payment to the beneficiary is to be made by the
principal rather than the Secretary of State, the principal may make an
allotment to the beneficiary from his/her annuity. An annuitant may also
make an allotment from his/her annuity to a previous spouse in the
absence of a court order.
Sec. 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order
under Sec. 19.6-1(a)(6) only while the principal is living. Payment of
apportioned amounts will be made only to a previous spouse and/or the
children of the principal. Such payments will not be made to any of the
following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
[[Page 107]]
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one
dollar and, in the absence of compelling circumstances, shall be in
whole dollars.
(c) In honoring and complying with a court order, the Department
shall not be required to disrupt the scheduled method of accruing
retirement benefits or the normal timing for making such payments,
despite the existence of any special schedule relating to a previous
spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the
retirement benefits, PER/ER/RET will initially determine the amount of
proper payment. That amount will only be increased by future cost-of-
living increases unless the court directs otherwise.
Sec. 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from
retirement benefits pursuant to a court order if such payment is made in
accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one
court order with respect to the same retirement benefits, the benefits
shall be available to satisfy the court orders on a first-come, first-
served basis.
(c) A previous spouse or other beneficiary may request that an
amount be withheld from the retirement benefits of a principal or
survivor of a principal which is less than the amount stipulated in a
court order, or otherwise scheduled to be paid to the beneficiary under
this chapter. This lower amount will be deemed a complete fulfillment of
the obligation of the Department for the period in which the request is
in effect. See Sec. 19.14.
Sec. 19.7 Spousal agreements.