section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text
20:20:4.0.3.3.3.1.107.1,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,A,Subpart A—General Provisions,,§ 802.101 Purpose and scope of this part.,DOL,,,,"(a) The purpose of part 802 is to establish the rules of practice and procedure governing the operation of the Benefits Review Board.

(b) Except as otherwise provided, the rules promulgated in this part apply to all appeals taken by any party from decisions or orders with respect to claims for compensation or benefits under the following Acts:

(1) The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901  et seq.;

(2) The Defense Base Act (DBA), 42 U.S.C. 1651  et seq.;

(3) The District of Columbia Workmen's Compensation Act (DCWCA), 36 D.C. Code 501  et seq.  (1973);

(4) The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331  et seq.;

(5) The Nonappropriated Fund Instrumentalities Act (NFIA), 5 U.S.C. 8171  et seq.;

(6) Title IV, section 415 and part C of the Federal Mine Safety and Health Act of 1977, Public Law 95-164, 91 Stat. 1290 (formerly the FCMHSA of 1969), as amended by the Black Lung Benefits Reform Act of 1977, Public Law 95-239, 92 Stat. 95, the Black Lung Benefits Revenue Act of 1977, Public Law 95-229, 92 Stat. 11, and the Black Lung Benefits Amendments of 1981, Public Law 97-119, 95 Stat. 1643 (30 U.S.C. 901  et seq. )."
20:20:4.0.3.3.3.1.107.2,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,A,Subpart A—General Provisions,,§ 802.102 Applicability of part 801 of this chapter.,DOL,,,,"Part 801 of this chapter VII sets forth rules of general applicability covering the composition, authority, and operation of the Benefits Review Board and definitions applicable to this chapter. The provisions of part 801 of this chapter are fully applicable to this part 802."
20:20:4.0.3.3.3.1.107.3,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,A,Subpart A—General Provisions,,§ 802.103 Powers of the Board.,DOL,,,,"(a)  Conduct of proceedings.  Pursuant to section 27(a) of the LHWCA, the Board shall have power to preserve and enforce order during any proceedings for determination or adjudication of entitlement to compensation or benefits or for liability for payment thereof, and to do all things in accordance with law which may be necessary to enable the Board to effectively discharge its duties.

(b)  Contumacy.  Pursuant to section 27(b) of the LHWCA, if any person in proceedings before the Board disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, the Board shall certify the facts to the Federal district court having jurisdiction in the place in which it is sitting (or to the U.S. District Court for the District of Columbia if it is sitting in the District) which shall thereupon in a summary manner hear the evidence as to the acts complained of, and if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process or in the presence of the court."
20:20:4.0.3.3.3.1.107.4,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,A,Subpart A—General Provisions,,§ 802.104 Consolidation; severance.,DOL,,,,"(a) Cases may, in the sole discretion of the Board, be consolidated for purposes of an appeal upon the motion of any party or upon the Board's own motion where there exist common parties, common questions of law or fact or both, or in such other circumstances as justice and the administration of the Acts require.

(b) Upon its own motion, or upon motion of any party, the Board may, for good cause, order any proceeding severed with respect to some or all issues or parties."
20:20:4.0.3.3.3.1.107.5,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,A,Subpart A—General Provisions,,§ 802.105 Stay of payment pending appeal.,DOL,,,"[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9, 1988]","(a) As provided in section 14(f) of the LHWCA and sections 415 and 422 of the Black Lung Benefits Act, the payment of the amounts required by an award of compensation or benefits shall not be stayed or in any way delayed beyond ten days after it becomes due pending final decision in any proceeding before the Board unless so ordered by the Board. No stay shall be issued unless irreparable injury would otherwise ensue to the employer, coal mine operator or insurance carrier. Any order of the Board permitting any stay shall contain a specific finding, based upon evidence submitted to the Board and identified by reference thereto, that irreparable injury would result to such employer, operator or insurance carrier, and specify the nature and extent of the injury.

(b) When circumstances require, the Board, in its discretion, may issue a temporary order not to exceed 30 days granting a motion for stay of payment prior to the expiration of the ten-day period allowed for filing responses to motions pursuant to § 802.219(e). Following receipt of a response to the motion or expiration of the response time provided in § 802.219(e), the Board will issue a subsequent order ruling on the motion for stay of payment."
20:20:4.0.3.3.3.2.108.1,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.201 Who may file an appeal.,DOL,,,,"(a)  A party.  (1) Any party or party-in-interest adversely affected or aggrieved by a decision or order issued pursuant to one of the Acts over which the Board has appellate jurisdiction may appeal a decision or order of an administrative law judge or deputy commissioner to the Board by filing a notice of appeal pursuant to this subpart. (See § 802.205(b) and (c) for exceptions to this general rule.) A party who files a notice of appeal shall be deemed the petitioner. The Director, OWCP, when acting as a representative of the Special Fund established under the Longshore and Harbor Workers' Compensation Act or the Black Lung Disability Trust Fund established by the Black Lung Benefits Act, or, when appealing a decision or order which affects the administration of one of the Acts, shall be considered a party adversely affected.

(2) When a decision or order is favorable to a party ( i.e. , the prevailing party), the prevailing party may file a cross-appeal pursuant to § 802.205(b) to challenge any adverse findings of fact or conclusions of law in the same proceeding.

(b)  Representative parties.  In the event that a party has not attained the age of 18, is not mentally competent, or is physically unable to file and pursue or defend an appeal, the Board may permit any legally appointed guardian, committee, or other appropriate representative to file and pursue or defend the appeal, or it may in its discretion appoint such representative for purposes of the appeal. The Board may require any legally appointed representative to submit evidence of that person's authority."
20:20:4.0.3.3.3.2.108.2,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.202 Appearances by attorneys and other authorized persons; denial or authority to appear.,DOL,,,"[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9, 1988]","(a)  Appearances.  Any party or intervenor or any representative duly authorized pursuant to § 802.201(b) may appear before and/or submit written argument to the Board by attorney or any other person, including any representative of an employee organization, duly authorized pursuant to paragraph (d)(2) of this section.

(b) Any individual petitioner or respondent or his duly authorized representative pursuant to § 802.201(b) or an officer of any corporate party or a member of any partnership or joint venture which is a party may participate in the appeal on his or her own behalf, or on behalf of such business entity.

(c) For each instance in which appearance before the Board is made by an attorney or duly authorized person other than the party or his legal guardian, committee, or representative, there shall be filed with the Board a notice of appearance. Any attorney or other duly authorized person of record who intends to withdraw from representation shall file prior written notice of intent to withdraw from representation of a party or of substitution of counsel or other representative.

(d)  Qualifications —(1)  Attorneys.  An attorney at law who is admitted to practice before the Federal courts or before the highest court of any State, the District of Columbia, or any territory or commonwealth of the United States, may practice before the Board unless he or she has been disqualified from representing claimants under the Act pursuant to 33 U.S.C. 931(b)(2)(C), or unless authority to appear has been denied pursuant to § 802.202(e)(1) and (3). An attorney's own representation that he or she is in good standing before any of such courts shall be sufficient proof thereof, unless otherwise ordered by the Board.

(2)  Persons not attorneys.  Any person who is not an attorney at law may be admitted to appear in a representative capacity unless he or she has been disqualified from representing claimants under the Act pursuant to 33 U.S.C. 931(b)(2)(C). An application by a person not an attorney at law for admission to appear in a proceeding shall be submitted in writing to the Board at the time such person's appearance is entered. The application shall state such person's name, address, telephone number, general education, any special training or experience in claims representation, and such person's relationship, if any, to the party being represented. The Board may, at any time, make further inquiry as to the qualification or ability of such person to render assistance. In the event of a failure to make application for admission to appear, the Board shall issue an order to show cause why admission to appear should not be denied. Admission to appear in a particular case shall not be deemed a blanket authorization to appear in other cases.

(e)  Denial of authority to appear —(1)  Attorneys.  The Board may deny the privilege of appearing to any attorney, within applicable statutory constraints, e.g., 5 U.S.C. 555, who has been disbarred or suspended from the practice of law; who has surrendered his or her license while under investigation or under threat of disciplinary action; or who, after notice of an opportunity for hearing in the matter is found by the Board to have engaged in any conduct which would result in the loss of his or her license. No provision hereof shall apply to any attorney who appears on his or her own behalf.

(2)  Persons not attorneys.  The Board may deny the privilege of appearing to any person who, in the Board's judgment, lacks sufficient qualification or ability to render assistance. No provision hereof shall apply to any person who appears on his or her own behalf.

(3) Denial of authority to appear may be considered, after notice of and opportunity for a hearing, by the panel (constituted pursuant to § 801.301) which is assigned to decide the appeal in which the attorney or other person has entered an appearance. If such proceeding reveals facts suggesting that one of the circumstances described in 33 U.S.C. 931(b)(2)(C) exists, the Board shall refer that information to the Director, OWCP, for further proceedings pursuant to 33 U.S.C. 931(b)(2)(C) and 907(j). An attorney or other person may appeal a panel's decision to deny authority to appear to the entire permanent Board sitting en banc."
20:20:4.0.3.3.3.2.108.3,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.203 Fees for services.,DOL,,,,"(a) No fee for services rendered on behalf of a claimant in the successful pursuit or successful defense of an appeal shall be valid unless approved pursuant to 33 U.S.C. 928, as amended.

(b) All fees for services rendered in the successful pursuit or successful defense of an appeal on behalf of a claimant shall be subject to the provisions and prohibitions contained in 33 U.S.C. 928, as amended.

(c) Within 60 days of the issuance of a decision or non-interlocutory order by the Board, counsel or, where appropriate, representative for any claimant who has prevailed on appeal before the Board may file an application with the Board for a fee. Where the Board remands the case and the administrative law judge on remand issues an award, a fee petition may be filed within 60 days of the decision on remand. In the event that a claimant who was unsuccessful before the Board prevails on appeal to the court of appeals, his or her representative may within 60 days of issuance of the court's judgment file a fee application with the Board for services performed before the Board.

(d) A fee application shall include only time spent on services performed while the appeal was pending before the Board and shall be complete in all respects, containing all of the following specific information:

(1) A complete statement of the extent and character of the necessary work done;

(2) The professional status of each person for whom a fee is claimed who performed services on behalf of the claimant (if such professional status is other than attorney, a definition of the professional status of such individual must be included in the fee petition, including a statment of that individual's professional training, education and experience) and a statement that the attorney was a member in good standing of a state bar at the time the services were performed;

(3) The number of hours, in 
 1/4  hour increments, devoted by each person who performed services on behalf of the claimant and the dates on which such services were performed in each category of work;

(4) The normal billing rate for each person who performed services on behalf of the claimant. The rate awarded by the Board shall be based on what is reasonable and customary in the area where the services were rendered for a person of that particular professional status.

(e) Any fee approved shall be reasonably commensurate with the necessary work done and shall take into account the quality of the representation, the complexity of the legal issues involved, the amount of benefits awarded, and, when the fee is to be assessed against the claimant, shall also take into account the financial circumstances of the claimant. A fee shall not necessarily be computed by multiplying time devoted to work by an hourly rate.

(f) No contract pertaining to the amount of a fee shall be recognized.

(g) A fee application shall be served on all other parties and accompanied by a certificate of service. The Board will not take action on the fee application until such service is effected. Any party may respond to the application within 10 days of receipt of the application. The response shall be filed with the Board and served on all other parties."
20:20:4.0.3.3.3.2.109.4,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.204 [Reserved],DOL,,,,
20:20:4.0.3.3.3.2.109.5,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.205 Time for filing.,DOL,,,,"(a) A notice of appeal, other than a cross-appeal, must be filed within 30 days from the date upon which a decision or order has been filed in the Office of the Deputy Commissioner pursuant to section 19(e) of the LHWCA or in such other office as may be established in the future (see §§ 702.349 and 725.478 of this title).

(b) If a timely notice of appeal is filed by a party, any other party may initiate a cross-appeal by filing a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time prescribed by paragraph (a) of this section, whichever period last expires. In the event that such other party was not properly served with the first notice of appeal, such party may initiate a cross-appeal by filing a notice of appeal within 14 days of the date that service is effected.

(c) Failure to file within the period specified in paragraph (a) or (b) of this section (whichever is applicable) shall foreclose all rights to review by the Board with respect to the case or matter in question. Any untimely appeal will be summarily dismissed by the Board for lack of jurisdiction."
20:20:4.0.3.3.3.2.109.6,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.206 Effect of motion for reconsideration on time for appeal.,DOL,,,,"(a) A timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner shall suspend the running of the time for filing a notice of appeal.

(b)(1) In a case involving a claim filed under the Longshore and Harbor Workers' Compensation Act or its extensions (see § 802.101(b)(1)-(5)), a timely motion for reconsideration for purposes of paragraph (a) of this section is one which is filed not later than 10 days from the date the decision or order was filed in the Office of the Deputy Commissioner.

(2) In a case involving a claim filed under title IV of the Federal Mine Safety and Health Act, as amended (see § 802.101(b)(6)), a timely motion for reconsideration for purposes of paragraph (a) of this section is one which is filed not later than 30 days from the date the decision or order was served on all parties by the administrative law judge and considered filed in the Office of the Deputy Commissioner (see §§ 725.478 and 725.479(b), (c) of this title).

(c) If the motion for reconsideration is sent by mail and the fixing of the date of delivery as the date of filing would result in a loss or impairment of reconsideration rights, it will be considered to have been filed as of the date of mailing. The date appearing on the U.S. Postal Service postmark (when available and legible) shall be prima facie evidence of the date of mailing. If there is no such postmark or it is not legible, other evidence such as, but not limited to, certified mail receipts, certificates of service and affidavits may also be used to establish the mailing date.

(d) If a motion for reconsideration is granted, the full time for filing an appeal commences on the date the subsequent decision or order on reconsideration is filed as provided in § 802.205.

(e) If a motion for reconsideration is denied, the full time for filing an appeal commences on the date the order denying reconsideration is filed as provided in § 802.205.

(f) If a timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner is filed, any appeal to the Board, whether filed prior to or subsequent to the filing of the timely motion for reconsideration, shall be dismissed without prejudice as premature. Following decision by the administrative law judge or deputy commissioner pursuant to either paragraph (d) or (e) of this section, a new notice of appeal shall be filed with the Clerk of the Board by any party who wishes to appeal. During the pendency of an appeal to the Board, any party having knowledge that a motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner has been filed shall notify the Board of such filing."
20:20:4.0.3.3.3.2.109.7,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.207 [Reserved],DOL,,,,
20:20:4.0.3.3.3.2.109.8,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.208 Contents of notice of appeal.,DOL,,,,"(a) A notice of appeal shall contain the following information:

(1) The full name and address of the pettioner;

(2) The full name of the injured, disabled, or deceased employee;

(3) The full names and addresses of all other parties, including, among others, beneficiaries, employers, coal mine operators, and insurance carriers where appropriate;

(4) The case file number which appears on the decision or order of the administrative law judge;

(5) The claimant's OWCP file number;

(6) The date of filing of the decision or order being appealed;

(7) Whether a motion for reconsideration of the decision or order of the administrative law judge has been filed by any party, the date such motion was filed, and whether the administrative law judge has acted on such motion for reconsideration (see § 802.206);

(8) The name and address of the attorney or other person, if any, who is representing the petitioner.

(b) Paragraph (a) of this section notwithstanding, any written communication which reasonably permits identification of the decision from which an appeal is sought and the parties affected or aggrieved thereby, shall be sufficient notice for purposes of § 802.205.

(c) In the event that identification of the case is not possible from the information submitted, the Clerk of the Board shall so notify the petitioner and shall give the petitioner a reasonable time to produce sufficient information to permit identification of the case. For purposes of § 802.205, the notice shall be deemed to have been filed as of the date the insufficient information was received."
20:20:4.0.3.3.3.2.109.9,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.209 Transmittal of record to the Board.,DOL,,,,"Upon receipt of a copy of the notice of appeal or upon request of the Board, the deputy commissioner or other office having custody of such record shall immediately forward to the Clerk of the Board the official record of the case, which record includes the transcript or transcripts of all formal proceedings with exhibits, all decisions and orders rendered in the case."
20:20:4.0.3.3.3.2.110.10,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.210 Acknowledgment of notice of appeal.,DOL,,,,"Upon receipt by the Board of a notice of appeal, the Clerk of the Board shall as expeditiously as possible notify the petitioner and all other parties and the Solicitor of Labor, in writing, that a notice of appeal has been filed."
20:20:4.0.3.3.3.2.110.11,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.211 Petition for review.,DOL,,,,"(a) Within 30 days after the receipt of an acknowledgment of a notice of appeal issued pursuant to § 802.210, the petitioner shall submit a petition for review to the Board which petition lists the specific issues to be considered on appeal.

(b) Each petition for review shall be accompanied by a supporting brief, memorandum of law or other statement which: Specifically states the issues to be considered by the Board; presents, with appropriate headings, an argument with respect to each issue presented with references to transcripts, pieces of evidence and other parts of the record to which the petitioner wishes the Board to refer; a short conclusion stating the precise result the petitioner seeks on each issue and any authorities upon which the petition relies to support such proposed result. The Longshore Desk Book and Black Lung Desk Book are not intended as final legal authorities and should not be cited or relied upon as such.

(c) Copies of the petition for review and accompanying documents must be served upon all parties and the Solicitor of Labor.

(d) Failure to submit a petition for review and brief within the 30-day period or to comply with any part of this section may, in the discretion of the Board, cause the appeal to be deemed abandoned (see § 802.402).

(e) When a party appears pro se the Board may, in its discretion, waive formal compliance with the requirements of this section and may, depending upon the particular circumstances, prescribe an alternate method of furnishing such information as may be necessary for the Board to decide the merits of any such appeal."
20:20:4.0.3.3.3.2.110.12,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.212 Response to petition for review.,DOL,,,,"(a) Within 30 days after the receipt of a petition for review, each party upon whom it was served may submit to the Board a brief, memorandum, or other statement in response to it.

(b) Arguments in response briefs shall be limited to those which respond to arguments raised in petitioner's brief and to those in support of the decision below. Other arguments will not be considered by the Board (see § 802.205(b))."
20:20:4.0.3.3.3.2.110.13,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.213 Reply briefs.,DOL,,,,"(a) Within 20 days after the receipt of a brief, memorandum, or statement submitted in response to the petition for review pursuant to § 802.212, any party upon whom it was served may file a brief, memorandum, or other statement in reply to it.

(b) Arguments in reply briefs shall be limited to those which reply to arguments made in the response brief. Any other arguments in a reply brief will not be considered by the Board."
20:20:4.0.3.3.3.2.110.14,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.214 Intervention.,DOL,,,,"(a) If a person or legal entity shows in a written petition to intervene that his, her, or its rights are affected by any proceeding before the Board, the Board may permit that person or legal entity to intervene in the proceeding and to participate within limits prescribed by the Board.

(b) The petition to intervene shall state precisely:

(1) The rights affected, and

(2) The nature of any argument the person or legal entity intends to make."
20:20:4.0.3.3.3.2.110.15,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.215 Additional briefs.,DOL,,,,Additional briefs may be filed or ordered in the discretion of the Board and shall be submitted within time limits specified by the Board.
20:20:4.0.3.3.3.2.110.16,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.216 [Reserved],DOL,,,,
20:20:4.0.3.3.3.2.110.17,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.217 Waiver of time limitations for filing.,DOL,,,,"(a) The time periods specified for submitting papers described in this part, except that for submitting a notice of appeal, may be enlarged for a reasonable period when in the judgment of the Board an enlargement is warranted.

(b) Any request for an enlargement of time pursuant to this section shall be directed to the Clerk of the Board and must be received by the Clerk on or prior to the date on which the paper is due.

(c) Any request for an enlargement of time pursuant to this section shall be submitted in writing in the form of a motion, shall specify the reasons for the request, and shall specify the date to which an enlargement of time is requested.

(d) Absent exceptional circumstances, no more than one enlargement of time shall be granted to each party.

(e) Absent a timely request for an enlargement of time pursuant to this section and the Board's granting that request, any paper submitted to the Board outside the applicable time period specified in this part shall be accompanied by a separate motion stating the reasons therefor and requesting that the Board accept the paper although filed out of time.

(f) When a paper filed out of time is accepted by the Board, the time for filing a response shall begin to run from the date of a party's receipt of the Board's order disposing of the motion referred to in paragraph (e) of this section."
20:20:4.0.3.3.3.2.110.18,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.218 Failure to file papers; order to show cause.,DOL,,,,"(a) Failure to file any paper when due pursuant to this part, may, in the discretion of the Board, constitute a waiver of the right to further participation in the proceedings.

(b) When a petition for review and brief has not been submitted to the Board within the time limitation prescribed by § 802.211, or within an enlarged time limitation granted pursuant to § 802.217, the petitioner shall be ordered to show cause to the Board why his or her appeal should not be dismissed pursuant to § 802.402."
20:20:4.0.3.3.3.2.110.19,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.219 Motions to the Board; orders.,DOL,,,"[52 FR 27292, July 20, 1987, as amended at 89 FR 8536, Feb. 8, 2024]","(a) An application to the Board for an order shall be by motion in writing. A motion shall state with particularity the grounds therefor and shall set forth the relief or order sought.

(b) A motion shall be a separate document and shall not be incorporated in the text of any other paper filed with the Board, except for a statement in support of the motion. If this paragraph is not complied with, the Board will not consider and dispose of the motion.

(c) If there is no objection to a motion in whole or in part by another party to the case, the absence of an objection shall be stated on the motion.

(d) The rules governing the filing and service of documents in §§ 802.222 and 802.223 apply to all motions.

(e) Within 10 days of the receipt of a copy of a motion, a party may file a written response with the Board.

(f) As expeditiously as possible following receipt of a response to a motion or expiration of the response time provided in paragraph (e) of this section, the Board shall issue a dispositive order.

(g)  Orders granted by Clerk.  The Clerk of the Board may enter orders on behalf of the Board in procedural matters, including but not limited to:

(1) First motions for extensions of time for filing briefs and any papers other than notices of appeal or cross-appeal;

(2) Motions for voluntary dismissals of appeals;

(3) Orders to show cause why appeals should not be dismissed for failure to timely file a petition for review and brief (see § 802.218(b)); and

(4) Unopposed motions which are ordinarily granted as of course, except that the Clerk may, in his or her discretion, refer such motions for disposition to a motions panel as provided by paragraph (h) of this section.

(h)  All other motions.  All other motions will be referred for disposition to a panel of three members constituted pursuant to § 801.301. Any member may request that any motion be considered by the entire permanent Board en banc except as provided in § 801.301(d).

(i)  Reconsideration of orders.  Any party adversely effected by any interlocutory order issued under paragraph (g) or (h) may file a motion to reconsider, vacate or modify the order within 10 days from its filing, stating the grounds for such request. Any motion for reconsideration, vacation or modification of an interlocutory order shall be referred to a three-member panel that may include any member who previously acted on the matter. Suggestions for en banc reconsideration of interlocutory orders shall not be accepted. Reconsideration of all other orders will be treated under § 802.407 of this part."
20:20:4.0.3.3.3.2.110.20,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.220 Party not represented by an attorney; informal procedure.,DOL,,,,"A party to an appeal who is not represented by an attorney shall comply with the procedural requirements contained in this part, except as otherwise specifically provided in § 802.211(e). In its discretion, the Board may prescribe additional informal procedures to be followed by such party."
20:20:4.0.3.3.3.2.110.21,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.221 Computation of time.,DOL,,,"[89 FR 8536, Feb. 8, 2024]","(a) In computing any period of time prescribed or allowed by these rules, by direction of the Board, or by any applicable statute which does not provide otherwise, the day from which the designated period of time begins to run must not be included. The last day of the period so computed must be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.

(b) For nonelectronic documents, the time period computed under paragraph (a) of this section will be deemed complied with if—

(1) When sent by mail, the envelope containing the document is postmarked by the U.S. Postal Service within the time period allowed. If there is no such postmark, or it is not legible, other evidence such as, but not limited to, certified mail receipts, certificates of service, and affidavits, may be used to establish the mailing date.

(2) When sent by commercial carrier, the receipt or tracking information demonstrates that the paper was delivered to the carrier within the time period allowed.

(c) For electronic filings made through the Board's case management system, paragraph (a) of this section will be deemed to be met if the document is electronically filed within the time period allowed. A document is deemed filed as of the date and time the Board's electronic case management system records its receipt, even if transmitted outside of the Board's business hours set forth in § 801.304 of this chapter. To be considered timely, an e-filed pleading must be filed by 11:59:59 p.m. Eastern Time on the due date.

(d) A waiver of the time limitations for filing a paper, other than a notice of appeal, may be requested by proper motion filed in accordance with §§ 802.217 and 802.219."
20:20:4.0.3.3.3.2.110.22,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,"§ 802.222 Filing notice of appeal, pleadings, and other correspondence.",DOL,,,"[89 FR 8536, Feb. 8, 2024]","This section prescribes rules and procedures by which parties and representatives to proceedings before the Board file pleadings (including notices of appeal, petitions for review and briefs, response briefs, additional briefs, and motions), exhibits, and other documents including routine correspondence.

(a)  Requirements for all pleadings.  All pleadings filed with the Board must—

(1) Include a caption and title.

(2) Include a certificate of service containing—

(i) The date and manner of service;

(ii) The names of persons served; and

(iii) Their mail or electronic mail addresses or the addresses of the places of delivery, as appropriate for the manner of service.

(3) Include a signature of the party (or their attorney or lay representative) and date of signature. Pleadings filed by an attorney, lay representative or self-represented party via the Board's case management system will be deemed to be signed by that person.

(4) Conform to standard letter dimensions (8.5 x 11 inches).

(b)  Redacted filings and exhibits.  Any person who files a pleading, exhibit, or other document that contains an individual's social security number, taxpayer-identification number, or birth date; the name of an individual known to be a minor; or a financial-account number, must redact all such information, except the last four digits of the social security number and taxpayer-identification number; the year of the individual's birth; the minor's initials; and the last four digits of the financial-account number.

(c)  Nonelectronic filings.  All nonelectronic pleadings filed with the Board must be secured at the top. For each pleading filed with the Board, the original and two legible copies must be submitted. Nonelectronic filings must be sent to the U.S. Department of Labor, Benefits Review Board, ATTN: Office of the Clerk of the Appellate Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210-0001, or otherwise presented to the Clerk.

(d)  Electronic filings.  (1) Except as provided in paragraph (d)(2) of this section, beginning on March 11, 2024, attorneys and lay representatives must be registered with the Board's electronic case management system and file all pleadings, exhibits, and other documents with the Board through this system (e-file). All e-filed documents must be in Portable Document Format (PDF). The Board prefers that pleadings be filed in text-searchable PDF format. Paper copies are not required unless requested by the Board.

(2) Attorneys and lay representatives may request an exemption (pursuant to § 802.219) for good cause shown. Such a request must include a detailed explanation why e-filing or acceptance of e-service should not be required.

(3) Self-represented parties may file pleadings, exhibits, and other documents in electronic or nonelectronic form in accordance with paragraph (c) or (d) of this section.

(4) A document filed electronically is a written paper for purposes of this Part.

(5) A person who is adversely affected by a technical failure in connection with filing or receipt of an electronic document may seek appropriate relief from the Board under § 802.219. If a technical malfunction or other issue prevents access to the Board's case management system for a protracted period, the Board by special order may provide appropriate relief pending restoration of electronic access.

(e)  Special rules for notices of appeal.  (1) Except as otherwise provided in this section, a notice of appeal is considered to have been filed only as of the date it is received by the office of the Clerk of the Board.

(2) A notice of appeal submitted to any other agency or subdivision of the Department of Labor or of the U.S. Government or any state government, and subsequently received by the office of the Clerk of the Board, will be considered filed with the Clerk of the Board as of the date it was received by the other governmental unit if the Board finds in its discretion that it is in the interest of justice to do so.

(3) If the notice of appeal is sent by mail or commercial carrier and the fixing of the date of delivery as the date of filing would result in a loss or impairment of appeal rights, it will be considered to have been filed as of the date of mailing or the date of delivery to the commercial carrier.

(i) For notices sent by mail, the date appearing on the U.S. Postal Service postmark (when available and legible) will be prima facie evidence of the date of mailing. If there is no such postmark or it is not legible, other evidence such as, but not limited to, certified mail receipts, certificates of service, and affidavits, may be used to establish the mailing date.

(ii) For notices sent by commercial carrier, the date of delivery to the carrier may be demonstrated by the carrier's receipt or tracking information.

(4) If the notice of appeal is electronically filed through the Board's case management system, it is considered received by the office of the Clerk of the Board as of the date and time recorded by the system under § 802.221(c)."
20:20:4.0.3.3.3.2.110.23,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,B,Subpart B—Prereview Procedures,,§ 802.223 Service requirements.,DOL,,,"[89 FR 8537, Feb. 8, 2024]","This section prescribes rules and procedures for serving pleadings (including notices of appeal, petitions for review, and response briefs, additional briefs, and motions), exhibits, and other documents including routine correspondence on other parties and representatives.

(a) A copy of any document filed with the Board must be served on each party and the Solicitor of Labor by the party filing the document.

(b)  Manner of service.  (1) Nonelectronic service may be completed by:

(i) Personal delivery;

(ii) Mail; or

(iii) Commercial delivery.

(2) Electronic service may be completed by:

(i) Electronic mail, if consented to in writing by the person served; or

(ii) Sending it to a user registered with the Board's electronic case management system by filing via this system. A person who registers to use the Board's case management system is deemed to have consented to accept service through the system.

(c)  When service is effected.  (1) Service by personal delivery is effected on the date the document is delivered to the recipient.

(2) Service by mail or commercial carrier is effected on mailing or delivery to the carrier.

(3) Service by electronic means is effected on sending.

(d)  Date of receipt for electronic documents.  Unless the party making service is notified that the document was not received by the party served—

(1) A document filed via the Board's case management system is considered received by registered users on the date it is sent by the system; and

(2) A document served via electronic mail is considered received by the recipient on the date it is sent."
20:20:4.0.3.3.3.3.111.1,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.301 Scope of review.,DOL,,,"[52 FR 27292, July 20, 1987, as amended at 53 FR 16519, May 9, 1988]","(a) The Benefits Review Board is not empowered to engage in a  de novo  proceeding or unrestricted review of a case brought before it. The Board is authorized to review the findings of fact and conclusions of law on which the decision or order appealed from was based. Such findings of fact and conclusions of law may be set aside only if they are not, in the judgment of the Board, supported by substantial evidence in the record considered as a whole or in accordance with law.

(b) Parties shall not submit new evidence to the Board. Any evidence submitted by a party which is not part of the record developed at the hearing before the administrative law judge will be returned without being considered by the Board.

(c) Any party who considers new evidence necessary to the adjudication of the claim may apply for modification pursuant to section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 922. A party who files a petition for modification shall promptly notify the Board of such filing. Upon receipt of such notification, the Board shall dismiss the case without prejudice. Should the petition for modification be declined, the petitioner may file a request for reinstatement of his or her appeal with the Board within 30 days of the date the petition is declined. Should the petition for modification be accepted, any party adversely affected by the decision or order granting or denying modification may file a new appeal with the Board within 30 days of the date the decision or order on modification is filed."
20:20:4.0.3.3.3.3.111.2,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.302 Docketing of appeals.,DOL,,,,"(a)  Maintenance of dockets.  A docket of all proceedings shall be maintained by the Board. Each proceeding shall be assigned a number in chronological order upon the date on which a notice of appeal is received. Correspondence or further applications in connection with any pending case shall refer to the docket number of that case.

(b)  Inspection of docket; publication of decision.  The docket of the Board shall be open to public inspection. The Board shall publish its decisions in a form which is readily available for inspection, and shall allow the public to inspect its decisions at the permanent location of the Board."
20:20:4.0.3.3.3.3.112.3,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.303 Decision; no oral argument.,DOL,,,,"(a) In the event that no oral argument is ordered pursuant to § 802.306, the Board shall proceed to review the record of the case as expeditiously as possible after all briefs, supporting statements, and other pertinent documents have been received.

(b) Each case shall be considered in the order in which it becomes ready for decision, regardless of docket number, although for good cause shown, upon the filing of a motion to expedite by a party, the Board may advance the order in which a particular case is to be considered.

(c) The Board may advance an appeal on the docket on its own motion if the interests of justice would be served by so doing."
20:20:4.0.3.3.3.3.112.4,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.304 Purpose of oral argument.,DOL,,,,"Oral argument may be held by the Board in any case:

(a) When there is a novel issue not previously considered by the Board; or

(b) When in the interests of justice oral argument will serve to assist the Board in carrying out the intent of any of the Acts; or

(c) To resolve conflicting decisions by administrative law judges on a substantial question of law."
20:20:4.0.3.3.3.3.112.5,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.305 Request for oral argument.,DOL,,,,"(a) During the pendency of an appeal, but not later than the expiration of 20 days from the date of receipt of the response brief provided by § 802.212, any party may request oral argument. The Board on its own motion may order oral argument at any time.

(b) A request for oral argument shall be submitted in the form of a motion, specifying the issues to be argued and justifying the need for oral argument (see § 802.219).

(c) The party requesting oral argument shall set forth in the motion suggested dates and alternate cities convenient to the parties when and where they would be available for oral argument."
20:20:4.0.3.3.3.3.112.6,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.306 Action on request for oral argument.,DOL,,,,"As expeditiously as possible after the date upon which a request for oral argument is received, the Board shall determine whether the request shall be granted or denied."
20:20:4.0.3.3.3.3.112.7,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.307 Notice of oral argument.,DOL,,,,"(a) In cases where a request for oral argument has been approved or where oral argument has been ordered, the Board shall give all parties a minimum of 30 days' notice, in writing, by mail, of the scope of argument and of the time when, and place where, oral argument will be held.

(b) Once oral argument has been scheduled by the Board, continuances shall not be granted except for good cause shown by a party, such as in cases of extreme hardship or where attendance of a party or his or her representative is mandated at a previously scheduled judicial proceeding. Unless the ground for the request arises thereafter, requests for continuances must be received by the Board at least 15 days before the scheduled date of oral argument, must be served upon the other parties and must specify good cause why the requesting party cannot be available for oral argument.

(c) The Board may cancel or reschedule oral argument on its own motion at any time."
20:20:4.0.3.3.3.3.112.8,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.308 Conduct of oral argument.,DOL,,,,"(a) Oral argument shall be held in Washington, DC, unless the Board orders otherwise, and shall be conducted at a time reasonably convenient to the parties. For good cause shown, the presiding judge of the panel may, in his or her discretion, postpone an oral argument to a more convenient time.

(b) The proceedings shall be conducted under the supervision of the Chairman or, if the Chairman is not on the panel, the senior judge, who shall regulate all procedural matters arising during the course of the argument.

(c) Within the discretion of the Board, oral argument shall be open to the public and may be presented by any party, representative, or duly authorized attorney. Presentation of oral argument may be denied by the Board to a party who has not significantly participated in the appeal prior to oral argument.

(d) The Board shall determine the scope of any oral argument presented and shall so inform the parties in its notice scheduling oral argument pursuant to § 802.307.

(e) The Board in its discretion shall determine the amount of time allotted to each party for argument and rebuttal."
20:20:4.0.3.3.3.3.112.9,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,C,Subpart C—Procedure for Review,,§ 802.309 Absence of parties.,DOL,,,,"The unexcused absence of a party or his or her authorized representative at the time and place set for argument shall not be the occasion for delay of the proceeding. In such event, argument on behalf of other parties may be heard and the case shall be regarded as submitted on the record by the absent party. The presiding judge may, with the consent of the parties present, cancel the oral argument and treat the appeal as submitted on the written record."
20:20:4.0.3.3.3.4.113.1,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.401 Dismissal by application of party.,DOL,,,,"(a) At any time prior to the issuance of a decision by the Board, the petitioner may move that the appeal be dismissed. If granted, such motion for dismissal shall be granted with prejudice to the petitioner.

(b) At any time prior to the issuance of a decision by the Board, any party or representative may move that the appeal be dismissed."
20:20:4.0.3.3.3.4.113.2,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.402 Dismissal by abandonment.,DOL,,,,"(a) Upon motion by any party or representative or upon the Board's own motion, an appeal may be dismissed upon its abandonment by the party or parties who filed the appeal. Within the discretion of the Board, a party may be deemed to have abandoned an appeal if neither the party nor his representative participates significantly in the review proceedings.

(b) An appeal may be dismissed on the death of a party only if the record affirmatively shows that there is no person who wishes to continue the action and whose rights may be prejudiced by dismissal."
20:20:4.0.3.3.3.4.114.3,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.403 Issuance of decisions; service.,DOL,,,,"(a) The Board shall issue written decisions as expeditiously as possible after the completion of review proceedings before the Board. The transmittal of the decision of the Board shall indicate the availability of judicial review of the decision under section 21(c) of the LHWCA when appropriate.

(b) The original of the decision shall be filed with the Clerk of the Board. A copy of the Board's decision shall be sent by certified mail or otherwise presented to all parties to the appeal and the Director. The record on appeal, together with a transcript of any oral proceedings, any briefs or other papers filed with the Board, and a copy of the decision shall be returned to the appropriate deputy commissioner for filing.

(c) Proof of service of Board decisions shall be certified by the Clerk of the Board or by another employee in the office of the Clerk of the Board who is authorized to certify proof of service."
20:20:4.0.3.3.3.4.114.4,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.404 Scope and content of Board decisions.,DOL,,,,"(a) In its decision the Board shall affirm, modify, vacate or reverse the decision or order appealed from, and may remand the case for action or proceedings consistent with the decision of the Board. The consent of the parties shall not be a prerequisite to a remand ordered by the Board.

(b) In appropriate cases, such as where the issues raised on appeal have been thoroughly discussed and disposed of in prior cases by the Board or the courts, or where the findings of fact and conclusions of law are both correct and adequately discussed, the Board in its discretion may issue a brief, summary decision in writing, disposing of the appeal.

(c) In cases which cannot be disposed of as in paragraph (b) of this section, a full, written decision discussing the issues and applicable law shall be issued."
20:20:4.0.3.3.3.4.114.5,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.405 Remand.,DOL,,,,"(a)  By the Board.  Where a case is remanded, such additional proceedings shall be initiated and such other action shall be taken as is directed by the Board.

(b)  By a court.  Where a case has been remanded by a court, the Board may proceed in accordance with the court's mandate to issue a decision or it may in turn remand the case to an administrative law judge or deputy commissioner with instructions to take such action as is ordered by the court and any additional necessary action."
20:20:4.0.3.3.3.4.114.6,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.406 Finality of Board decisions.,DOL,,,,"A decision rendered by the Board pursuant to this subpart shall become final 60 days after the issuance of such decision unless a written petition for review praying that the order be modified or set aside, pursuant to section 21(c) of the LHWCA, is filed in the appropriate U.S. court of appeals prior to the expiration of the 60-day period herein described, or unless a timely request for reconsideration by the Board has been filed as provided in § 802.407. If a timely request for reconsideration has been filed, the 60-day period for filing such petition for review will run from the issuance of the Board's decision on reconsideration."
20:20:4.0.3.3.3.4.115.7,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.407 Reconsideration of Board decisions.,DOL,,,,"(a) Any party-in-interest may, within 30 days from the filing of a decision or non-interlocutory order by a panel or the Board pursuant to § 802.403(b), request reconsideration of such decision by those members who rendered the decision. The panel of members who heard and decided the appeal will rule on the motion for reconsideration. If any member of the original panel is unavailable, the Chariman shall designate a new panel member.

(b) Except as provided in § 801.301(d), a party may, within 30 days from the filing of a decision or non-interlocutory order by a panel of the Board pursuant to § 802.403(b), suggest the appropriateness of reconsideration by the permanent members sitting en banc. Such suggestion, however, must accompany a motion for reconsideration directed to the panel which rendered the decision. The suggestion for reconsideration en banc must be clearly marked as such.

(c) Except as provided in § 801.301(d), even where no party has suggested reconsideration en banc, any permanent member may petition the permanent Board for reconsideration en banc of a panel decision.

(d) Reconsideration en banc shall be granted upon the affirmative vote of the majority of permanent members of the Board. A panel decision shall stand unless vacated or modified by the concurring vote of at least three permanent members."
20:20:4.0.3.3.3.4.115.8,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.408 Notice of request for reconsideration.,DOL,,,,"(a) In the event that a party requests reconsideration of a decision or order, he or she shall do so in writing, in the form of a motion, stating the supporting rationale for the request, and include any material pertinent to the request.

(b) The request shall be sent by mail, or otherwise presented, to the Clerk of the Board. Copies shall be served on all other parties."
20:20:4.0.3.3.3.4.115.9,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.409 Grant or denial of request.,DOL,,,,All requests for reconsideration shall be reviewed by the Board and shall be granted or denied in the discretion of the Board.
20:20:4.0.3.3.3.4.116.10,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.410 Judicial review of Board decisions.,DOL,,,,"(a) Within 60 days after a decision by the Board has been filed pursuant to § 802.403(b), any party adversely affected or aggrieved by such decision may file a petition for review with the appropriate U.S. Court of Appeals pursuant to section 21(c) of the LHWCA.

(b) The Director, OWCP, as designee of the Secretary of Labor responsible for the administration and enforcement of the statutes listed in § 802.101, shall be deemed to be the proper party on behalf of the Secretary of Labor in all review proceedings conducted pursuant to section 21(c) of the LHWCA."
20:20:4.0.3.3.3.4.116.11,20,Employees' Benefits,VII,,802,PART 802—RULES OF PRACTICE AND PROCEDURE,D,Subpart D—Completion of Board Review,,§ 802.411 Certification of record for judicial review.,DOL,,,,The record of a case including the record of proceedings before the Board shall be transmitted to the appropriate court pursuant to the rules of such court.
28:28:2.0.6.5.3.1.127.1,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,A,Subpart A—General,,§ 802.1 Introduction.,CSOSA,,,"[82 FR 13556, Mar. 14, 2017]","(a) This part contains regulations of the Court Services and Offender Supervision Agency for the District of Columbia (“CSOSA” or “Agency”) and the District of Columbia Pretrial Services Agency (“PSA” or “Agency”), which implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Privacy Act (PA), 5 U.S.C. 552a. The Agency provides for the disclosure and production of records in response to FOIA/PA requests, a demand from a court, or other non-congressional authority in connection with a proceeding to which the Agency is not a party. Due to CSOSA's nature as a federal agency with a local mission connected to the District of Columbia, exemption protections, including exclusions, are allowed under the FOIA and other safeguard requirements may be applied under the PA.

(b) It is the policy of CSOSA that all employees of CSOSA and PSA (collectively the “Agency”) are to submit all FOIA/PA requests to the Office of General Counsel (“OGC”). The OGC shall make release determinations under either the FOIA/PA pursuant to the procedures set forth in sections §§ 802.6, 802.7, 802.8, 802.14, 802.15, and 802.16."
28:28:2.0.6.5.3.2.127.1,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.2 Purpose and scope.,CSOSA,,,,"(a) The purpose of this subpart is to establish procedures for the release of records in the custody, possession or control of the Agency pursuant to the provisions of the FOIA as amended by the  FOIA Improvement Act of 2016  (Pub. L. 114-185).

(b) The Director of CSOSA has designated the General Counsel to be the Chief FOIA Officer as defined in 5 U.S.C. 552(j).

(c) The Chief FOIA Officer shall designate at least one FOIA Public Liaison as defined in 5 U.S.C 552(j)(2)(H) and 552(l) for assisting in reducing delays, increasing transparency, understanding the status of requests, and assisting in the resolution of disputes."
28:28:2.0.6.5.3.2.127.2,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.3 Information and records for public inspection.,CSOSA,,,,"(a)  Public inspection.  In accordance with this section, CSOSA makes the following information and materials available for public inspection pursuant to 5 U.S.C. 552:

(1) The Agency's publications in the  Federal Register  for the guidance of the public.

(2) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.

(3) The Agency's policy statements that have been adopted by the Agency and are not published in the  Federal Register .

(4) Administrative staff manuals and instructions to staff that affect a member of the public.

(5) Copies of all records, regardless of format, that have become or are likely to become the subject of subsequent requests for substantially the same records or have been requested three or more times; and these available records exclude first party requests.

(6) Reports available for public inspection shall be available:

(i) In a timely manner;

(ii) With raw statistical data in electronic format;

(iii) In a general index;

(iv) Without charge, license, or registration requirement;

(v) In an aggregated, searchable format;

(vi) In a format that may be downloaded in bulk; and

(vii) Which include, but are not limited to the:

(A) Chief FOIA Officer Report;

(B) Annual FOIA Report; and

(C) Quarterly FOIA Report.

(7) An index of all major information systems of the agency.

(8) A description of major information and record locator systems maintained by the agency.

(9) A handbook for obtaining various types of categories of public information from the Agency pursuant to chapter 35 of Title 44 of the United States Code, and under this section.

(b)  Preservation of records.  (1) All agency correspondence as well as copies of all requested records shall be preserved until disposition or destruction is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration (NARA).

(2) The agency will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA."
28:28:2.0.6.5.3.2.127.3,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.4 Guidelines for disclosure.,CSOSA,,,,"(a) The authority to release, partially release, or deny access to records and information under the FOIA is limited to the Chief FOIA Officer, FOIA Public Liaison, and his or her designee.

(b) An Agency record will be released in response to a written request, unless a valid legal exemption and/or exclusion to disclosure is asserted.

(1) Any applicable exemption and/or exclusion to disclosure, which is provided under the FOIA in 5 U.S.C. 552, may be asserted. The applicable exemptions and/or exclusions to disclosure are as follows:

(i)  Exclusions.  (A) Where the subject of a criminal investigation or proceeding is unaware of the existence of records concerning a pending investigation and disclosure of such records would interfere with the investigation.

(B) Where there are informant records maintained by a criminal law enforcement agency and the individual's status as an informant is not known.

(C) Where there are classified FBI records pertaining to foreign intelligence, counterintelligence or international terrorism records.

(ii)  Exemptions.  (A) Information that is classified to protect national security.

(B) Information related solely to the internal personnel rules and practices of an agency.

(C) Information that is prohibited from disclosure by another federal law.

(D) Trade secrets or commercial or financial information that is confidential or privileged.

(E) Privileged communications within or between agencies, including:

( 1 ) Deliberative process privilege;

( 2 ) Attorney-work product privilege; and

( 3 ) Attorney-client privilege.

(F) Information that, if disclosed, would invade another individual's personal privacy.

(G) Information compiled for law enforcement purposes that:

( 1 ) Could reasonably be expected to interfere with enforcement proceedings.

( 2 ) Would deprive a person of a right to a fair trial or an impartial adjudication.

( 3 ) Could reasonably be expected to constitute an unwarranted invasion of personal privacy.

( 4 ) Could reasonably be expected to disclose the identity of a confidential source.

( 5 ) Would disclose techniques and procedures for law enforcement investigations or prosecutions.

( 6 ) Could reasonably be expected to endanger the life or physical safety of any individual.

(H) Information that concerns the supervision of financial institutions.

(I) Geological information on wells.

(2) A record must exist and be in the possession and control of the Agency at the time of the request to be considered subject to this part and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy a FOIA request."
28:28:2.0.6.5.3.2.127.4,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.5 Definitions.,CSOSA,,,,"As used in this subpart, the following terms have the following meanings:

(a)  Agency  has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 552(f).

(b)  Appeal  means a request for a review of the agency's determination with regard to a fee waiver, category of requester, expedited processing, or denial in whole or in part of a request for access to a record or records.

(c)  Business information  means trade secrets or other commercial or financial information.

(d)  Business submitter  means any entity which provides business information to the Agency and which has a proprietary interest in the information.

(e)  Computer software  means tools by which records are created, stored, and retrieved. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of medium, are not agency records. Proprietary (or copyrighted) software is not an agency record.

(f)  Confidential commercial information  means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.

(g)  Duplication  refers to the process of making a copy of a record in order to respond to a FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine-readable documentation ( e.g.,  magnetic tape or disk), among others.

(h)  Electronic records  mean those records and information which are created, stored, and retrievable by electronic means. This ordinarily does not include computer software, which is a tool by which to create, store, or retrieve electronic records.

(i)  Record  is defined pursuant to 44 U.S.C. 3301.

(j)  Request  means any request for records made pursuant to 5 U.S.C. 552(a)(3).

(k)  Requester  means any person who makes a request for access to records.

(l)  Review  for fee purposes, refers to the process of examining records located in response to a commercial use request to determine whether any portion of any record located is permitted to be withheld. It also includes processing any records for disclosure;  e.g.,  doing all that is necessary to excise them and otherwise prepare them for release.

(m)  Search  includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within records. Searches may be done manually or by automated means."
28:28:2.0.6.5.3.2.127.5,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.6 Freedom of Information Act requests.,CSOSA,,,,"(a)  Submission and processing procedures. (1) Requests for any record (including policy) ordinarily will be processed pursuant to the Freedom of Information Act, 5 U.S.C. 552. Your request must be made in writing and addressed to the FOIA Public Liaison Officer, Office of the General Counsel FOIA Office, Court Services and Offender Supervision Agency for the District of Columbia, 633 Indiana Avenue NW., 12th Floor, Washington, DC 20004. The requester should clearly mark on the face of the letter and the envelope “Freedom of Information Act Request.”

(2) Your request will be considered received as of the date it is received by CSOSA's FOIA Office.

(3) Generally, all FOIA requests will be processed in the approximate order of receipt, unless the requester shows exceptional circumstances exist to justify an expedited response ( see  § 802.8).

(4) You must describe the records that you seek in enough detail to enable Agency personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient and subject matter of the record. As a general rule, the more specific you are about the records or type of records that you want, the more likely the Agency will be able to locate the records in response to your request. If a determination is made that your request does not reasonably describe records, the Agency will tell you either what additional information is needed or why your request is otherwise insufficient. You will be given the opportunity to discuss your request so that you may modify it to meet the requirements of this section.

(5)(i)  Requests by offender/defendant for offender's records.  (A) An offender/defendant making a FOIA/PA request must provide his or her full name, current address, and date of birth. In addition, the requester must provide with the request his or her signature, which must be either notarized or sworn under penalty of perjury pursuant to 28 U.S.C. 1746, and dated within three (3) months of the date of the request.

(B) To assist in properly identifying requested records, the OGC and/or FOIA Office may request that the offender/defendant provide his/her DCDC or PDID number.

(ii)  Requests for offender records on behalf of an offender/defendant.  (A) A request for records made by an authorized representative of an offender/defendant will only be released with the subject's written authorization with appropriate releases. This authorization and releases must be dated within thirty (30) days of the date of the request letter and must be signed by the offender/defendant.

(B) To assist in properly identifying requested records, the OGC and/or FOIA Office may request that the offender/defendant provided his/her DCDC or PDID number.

(6) You must state in your request a firm agreement to pay the fees for search, duplication, and review as may ultimately be determined. The agreement may state the upper limit (but not less than $10.00) that the requester is willing to pay for processing the request. A request that fees be waived or reduced may accompany the agreement to pay fees and will be considered to the extent that such request is made in accordance with § 802.4(b) and provides supporting information to be measured against the fee waiver standard set forth in § 802.9(g). The requester shall be notified in writing of the decision to grant or deny the fee waiver. If a requester has an outstanding balance of search, review, or duplication fees due for FOIA request processing, the requirements of this paragraph (a)(6) are not met until the requester has remitted the outstanding balance due.

(b)  Release determination —(1)  Notification.  You will be notified of the decision on the request within twenty (20) days after its receipt (excluding Saturdays, Sundays, and legal public holidays).

(i) The twenty (20) day period shall be tolled if:

(A) The Agency needs clarification and/or more information from the requester; or

(B) Clarification is needed with the requester regarding fee assessment.

(C) The agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period.

(ii) The twenty (20) day period shall be extended for ten (10) additional working days with written notice to the requester for unusual circumstances.

(A) Unusual circumstances means, but only to the extent reasonably necessary to the proper processing of particular requests—

( 1 ) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

( 2 ) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

( 3 ) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.

(B) The written notice to the requester for unusual circumstances shall:

( 1 ) Notify the person making the request if the request cannot be processed within the time limit specified;

( 2 ) Provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request;

( 3 ) Make available the Agency's FOIA Public Liaison Officer, who shall assist in the resolution of any disputes between the requester the Agency; and

( 4 ) Notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services.

(iii) When the Agency fails to comply with the applicable time limit provisions of paragraph (b) of this section, if the Agency can show exceptional circumstances exist and that the Agency is exercising due diligence in responding to the request, the Agency may be allowed additional time to complete its review of the records.

(A) For purposes of this paragraph (b)(1)(iii), the term “exceptional circumstances” does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.

(B) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) after being given an opportunity to do so by the Agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this paragraph (b)(1)(iii).

(2)  Denial in whole or in part.  If it is determined that the request for records should be denied in whole or in part, the requester shall be notified by mail with a letter stating the basis for partial or whole denial. The letter of notification shall:

(i) Be signed by the Chief FOIA Officer or his or her designee;

(ii) State the exemptions relied on to not release the information;

(A) Advise the requester of the reason of adverse determination and the right to administrative appeal in accordance with paragraph (c) of this section;

(B) Advise the right of such person to seek assistance from the FOIA Public Liaison Officer of the agency; and

(C) Advise the right of such person to seek assistance from the Office of Government Information Services;

(iii) If technically feasible, indicate the amount of information deleted at the place in the record where such deletion is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);

(iv) If a document contains information exempt from disclosure, any reasonably segregable portion of the record will be provided to you after deletion of the exempt portions;

(v) An agency shall—

(A) Withhold information under this section only if—

( 1 ) The agency reasonably foresees that disclosure would harm an interest protected by an exemption described in paragraph (b) of this section; or

( 2 ) Disclosure is prohibited by law; and

(B) Partially withhold information under this section only if—

( 1 ) Partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible; and

( 2 ) Take reasonable steps necessary to segregate and release nonexempt information; and

(vi) Nothing in this paragraph (b)(2) requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure by statute.

(3)  No records found.  If it is determined, after a thorough search for records by the responsible official or his delegate, that no records have been found to exist, the Chief FOIA Officer or his/her designee will so notify the requester in writing. The letter of notification will advise the requester of his or her right to administratively appeal within ninety (90) of the determination that no records exist ( i.e.,  to challenge the adequacy of the search for responsive records) in accordance with paragraph (c) of this section. The response shall specify the official or office to which the appeal shall be submitted for review.

(c)  Administrative appeal.  (1) A requester may appeal an initial determination when:

(i) Access to records has been denied in whole or in part;

(ii) There has been an adverse determination of the requester's category as provided in § 802.10(d);

(iii) Inadequacy of the FOIA search;

(iv) A request for fee waiver or reduction has been denied; or

(v) It has been determined that no responsive records exist.

(2) Appeals must be made within ninety (90) days of the receipt of the letter with an adverse determination. Both the envelope and the letter of appeal should be sent to the Office of the General Counsel, Court Services and Offender Supervision Agency for the District of Columbia, 633 Indiana Avenue NW., 13th Floor, Washington, DC 20004 and must be clearly marked “Freedom of Information Act (FOIA) Appeal.”

(3) The General Counsel will make an appeal determination within twenty (20) days (excluding Saturdays, Sundays, and holidays) from the date of receipt of the appeal. However, for a good reason, this time limit may be extended up to an additional ten (10) days. If, after review, the General Counsel determines that additional information should be released, it will accompany the appeal response. If, after review, the General Counsel determines to uphold the initial review, we will inform you."
28:28:2.0.6.5.3.2.127.6,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.7 Documents from other agencies.,CSOSA,,,,"(a)  Documents from or relating to Federal agencies.  (1) When a request for records includes a document that originated from another Federal agency, the document will be referred to the originating Federal agency for release determination, unless the information requested is for records created 25 years or more before the date on which the records were requested, in which case CSOSA will release them without referral and/or consultation with the other federal agency. The requester will be informed of the referral. This is not a denial of a FOIA request; thus, no appeal rights accrue to the requester.

(2) When a FOIA request is received for a record created by the Agency that includes information by another Federal agency, the record will be sent to the other Federal agency that has equities in the record. The consultation will request that the other Federal agency review and provide recommendations on disclosure. The Agency will not release any such record without prior consultation with the other Federal agency that has equities in the record.

(b)  Documents from non-Federal agencies.  When a request for records includes a document from a non-Federal agency, CSOSA staff must make a release determination.

(1) A release determination on the records from non-Federal agencies shall be analyzed on a case-by-case to determine if CSOSA or the non-Federal agency is best able to decide a record's sensitivity, and in turn its exemption status, in which case:

(i) The requester will be re-routed to submit a separate FOIA request to the non-Federal agency; or

(ii) CSOSA will consult with the non-Federal agency only if the non-Federal agency will provide a consultation within five (5) business days.

(2) [Reserved]"
28:28:2.0.6.5.3.2.127.7,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.8 Expedited processing.,CSOSA,,,,"(a) Requests and appeals will be taken out of order and given expedited treatment whenever CSOSA's FOIA Office determines that they involve:

(1) Circumstances in which the person requesting the records demonstrates a compelling need.

(i) For purposes of this paragraph (a)(1), the term “compelling need” means—

(A) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(B) A person is primarily engaged in disseminating information and the urgency to inform the public concerning actual or alleged Federal Government activity is a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity.

( 1 ) With respect to a request made by a person primarily engaged in disseminating information that affect public confidence, the requester must adequately explain the matter or activity and why it is necessary to provide the records being sought on an expedited basis.

( i ) A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information.

( ii ) The standard of “widespread and exceptional media interest” requires that the records requested pertain to a matter of current exigency to the American public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the general public. The requester must adequately explain the matter or activity and why it is necessary to provide the records being sought on an expedited basis.

( 2 ) [Reserved]

(ii) [Reserved]

(2) [Reserved]

(b) If a requester seeks expedited processing, the requester must submit a statement, certified to be true and correct to the best of your knowledge and belief. The statement must be in the form prescribed by 28 U.S.C. 1746, “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].”

(c) The determination as to whether to grant or deny the request for expedited processing will be made, and the requester notified, within ten (10) days after the date of the request. Because a decision to take a FOIA request out of order delays other requests, simple fairness demands that such a decision be made by the FOIA Public Liaison Officer only upon careful scrutiny of truly exceptional circumstances. The decision will be made solely based on the information contained in the initial letter requesting expedited processing.

(d) Appeals of initial determinations to deny expedited processing must be made promptly. Both the envelope and the letter of appeal should be sent to the Office of the General Counsel, Court Services and Offender Supervision Agency for the District of Columbia, 633 Indiana Avenue NW., 12th Floor, Washington, DC 20004 and must be clearly marked “Expedited Processing Appeal.”

(e) The OGC or his or designee will make an appeal determination regarding expedited processing as soon as practicable."
28:28:2.0.6.5.3.2.127.8,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.9 Business information.,CSOSA,,,,"(a)  In general.  Business information provided to the Agency by a business submitter will be disclosed pursuant to the FOIA, unless exemptions and/or exclusions apply. Any claim of confidentiality must be supported by a statement by an authorized representative of the company providing specific justification that the information in question is in fact confidential commercial or financial information and has not been disclosed to the public.

(b)  Notice to business submitters.  The Agency will provide a business submitter with prompt written notice of receipt of a request or appeal encompassing its business information whenever required in accordance with paragraph (c) of this section, and except as is provided in paragraph (g) of this section. Such written notice shall either describe the exact nature of the business information requested or provide copies of the records or portions of records containing the business information.

(c)  When notice is required.  (1) Notice of a request for business information falling within paragraph (c)(2)(i) or (ii) of this section will be required for a period of not more than ten years after the date of submission unless the business submitter had requested, and provided acceptable justification for, a specific notice period of greater duration.

(2) The Agency shall provide a business submitter with notice of receipt of a request or appeal whenever:

(i) The business submitter has in good faith designated the information as commercially or financially sensitive information; or

(ii) The Agency has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

(d)  Opportunity to object to disclosure.  (1) Through the notice described in paragraph (b) of this section, the Agency shall afford a business submitter ten (10) days from the date of the notice (exclusive of Saturdays, Sundays, and legal public holidays) to provide a detailed statement of any objection to disclosure. Such statement shall specify why the business submitter believes the information is considered to be a trade secret or commercial or financial information that is privileged or confidential. Information provided by a business submitter pursuant to this paragraph might itself be subject to disclosure under the FOIA.

(2) When notice is given to a submitter under this section, the requester shall be advised that such notice has been given to the submitter. The requester shall be further advised that a delay in responding to the request may be considered a denial of access to records and that the requester may proceed with an administrative appeal or seek judicial review, if appropriate. However, the requester will be invited to agree to a voluntary extension of time so that staff may review the business submitter's objection to disclose.

(e)  Notice of intent to disclose.  The Agency will consider carefully a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever a decision to disclose business information over the objection of a business submitter is made, the Agency shall forward to the business submitter a written notice which shall include:

(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;

(2) A description of the business information to be disclosed; and

(3) A specified disclosure date which is not less than five (5) days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been mailed to the submitter.

(f)  Notice of FOIA lawsuit.  Whenever a requester brings suit seeking to compel disclosure of business information covered by paragraph (c) of this section, the Agency shall promptly notify the business submitter.

(g)  Exception to notice requirement.  The notice requirements of this section shall not apply if:

(1) The Agency determines that the information shall not be disclosed;

(2) The information lawfully has been published or otherwise made available to the public; or

(3) Disclosure of the information is required by law (other than 5 U.S.C. 552)."
28:28:2.0.6.5.3.2.127.9,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,B,Subpart B—Freedom of Information Act,,§ 802.10 Fee schedule.,CSOSA,,,,"(a)  Fees.  The fees described in this section conform to the Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines. They reflect direct costs for search, review (in the case of commercial requesters), and duplication of documents, collection of which is permitted by the FOIA. However, for each of these categories, the fees may be limited, waived, or reduced for the reasons given below or for other reasons.

(b)  Types of cost.  The term  direct costs  means those expenditures the agency actually makes in searching for, review (in the case of commercial requesters), and duplicating documents to respond to a FOIA request.

(c)  Types of fees.  Fees shall be charged in accordance with the schedule contained in paragraph (i) of this section for services rendered in responding to requests for records, unless any one of the following applies:

(1) Services were performed without charge; or

(2) The fees were waived or reduced in accordance with paragraph (f) of this section.

(d)  Categories of fees.  Specific levels of fees are prescribed for each of the following categories of requesters:

(1)  Commercial use requesters.  These requesters are assessed charges, which recover the full direct costs of searching for, reviewing, and duplicating the records sought. Commercial use requesters are not entitled to two hours of free search time or 100 free pages of duplication of documents. Moreover, when a request is received for disclosure that is primarily in the commercial interest of the requester, the Agency is not required to consider a request for a waiver or reduction of fees based upon the assertion that disclosure would be in the public interest. The Agency may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records, or no records are located.

(2)  Educational and non-commercial scientific institution requesters.  Records shall be provided to requesters in these categories for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible, requesters must show that the request is made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. These categories do not include requesters who want records for use in meeting individual academic research or study requirements.

(3)  Requesters who are representatives of the news media.  Records shall be provided to requesters in this category for the cost of duplication alone, excluding charges for the first 100 pages.

(4)  All other requesters.  Requesters who do not fit any of the categories described in paragraphs (d)(1) through (3) of this section shall be charged fees that will recover the full direct cost of searching for and duplicating records that are responsive to the request, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge. The Agency may recover the cost of searching for records even if there is ultimately no disclosure of records, or no records are located. Requests from persons for records about themselves filed in a systems of records shall continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for duplication.

(e)  Fee waiver determination.  Where the initial request includes a request for reduction or waiver of fees, the responsible official shall determine whether to grant the request for reduction or waiver before processing the request and notify the requester of this decision. If the decision does not waive all fees, the responsible official shall advise the requester of the fact that fees shall be assessed and, if applicable, payment must be made in advance pursuant to paragraph (g) of this section.

(f)  Waiver or reduction of fees.  (1) Fees may be waived or reduced on a case-by-case basis in accordance with this paragraph (f)(1) by the official who determines the availability of the records, provided such waiver or reduction has been requested in writing. Fees shall be waived or reduced by this official when it is determined, based upon the submission of the requester, that a waiver or reduction of the fees is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Fee waiver/reduction requests shall be evaluated against the current fee waiver policy guidance issued by the Department of Justice.

(2) Appeals from denials of requests for waiver or reduction of fees shall be decided in accordance with the criteria set forth in this section by the official authorized to decide appeals from denials of access to records. Appeals shall be addressed in writing to the Office of the General Counsel, Court Services and Offender Supervision Agency for the District of Columbia, Office of the General Counsel, 633 Indiana Avenue NW., 13th Floor, Washington, DC 20004 within thirty (30) days of the denial of the initial request for waiver or reduction and shall be decided within twenty (20) days (excluding Saturdays, Sundays and holidays).

(3) Appeals from an adverse determination of the requester's category as described in paragraphs (d)(1) through (3) of this section shall be decided by the official authorized to decide appeals from denials of access to records and shall be based upon a review of the requester's submission and the Agency's own records. Appeals shall be addressed in writing to the office or officer specified in paragraph (d)(2) of this section within thirty (30) days of the receipt of the Agency's determination of the requester's category and shall be decided within twenty (20) days (excluding Saturdays, Sundays, and holidays).

(g)  Advance notice of fees.  (1) When the fees for processing the request are estimated to exceed the limit set by the requester, and that amount is less than $250.00, the requester shall be notified of the estimated costs. The requester must provide an agreement to pay the estimated costs; however, the requester will also be given an opportunity to reformulate the request in an attempt to reduce fees.

(2) If the requester has failed to state a limit and the costs are estimated to exceed $250.00, the requester shall be notified of the estimated costs and must pre-pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. The requester will also be given an opportunity to reformulate the request in an attempt to reduce fees.

(h)  Form of payment.  (1) Payment may be made by check or money order payable to the Treasury of the United States.

(2) The Agency reserves the right to request prepayment after a request is processed and before documents are released in the following circumstances.

(i) When costs are estimated or determined to exceed $250.00, the Agency shall either obtain satisfactory assurance of full payment of the estimated cost where the requester has a history of prompt payment of FOIA fees or require the requester to make an advance payment of the entire estimated or determined fee before continuing to process the request.

(ii) If a requester has previously failed to pay a fee within thirty (30) days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Agency begins to process a new request or the pending request. Whenever interest is charged, the Agency shall begin assessing interest on the 31st day following the day on which billing was sent. Interest shall be at the rate prescribed in 31 U.S.C. 3717.

(i)  Amounts to be charged for specific services.  The fees for services performed by an employee of the Agency shall be imposed and collected as set forth in this paragraph (i).

(1)  Duplicating records.  All requesters, except commercial requesters, shall receive the first 100 pages duplicated without charge; the first two hours of search time free; or charge which total $10.00 or less. Fees for the copies are to be calculated as follows:

(i) The duplication cost is calculated by multiplying the number of pages in excess of 100 by $0.25.

(ii) Photographs, films, and other materials—actual cost of duplication.

(iii) Other types of duplication services not mentioned above—actual cost.

(iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor.

(2)  Search services.  The cost of search time is calculated by multiplying the number of quarter hours in excess of two hours by the following rates for the staff conducting the search:

(i) $7.00 per quarter hour for clerical staff;

(ii) $10.00 per quarter hour for professional staff; and

(iii) $14.00 per quarter hour for managerial personnel.

(3)  Only fees in excess of $10.00 will be assessed.  This means that the total cost must be greater than $10.00, either for the cost of the search (for time in excess of two hours), for the cost of duplication (for pages in excess of 100), or for both costs combined.

(j)  Searches for electronic records.  The Agency shall charge for actual direct cost of the search, including computer search time, runs, and the operator's salary. The fee for computer output shall be actual direct costs. For requesters in the “all other” category, when the cost of the search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search ( i.e.,  the operator), the charge for the computer search will begin.

(k)  Aggregating requests.  When the Agency reasonably believes that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Agency shall aggregate any such requests and charge accordingly.

(l) The agency shall not assess any search fees (or in the case of an educational or noncommercial scientific institution, or a representative of the news media—duplication fees) under this paragraph (l) if the agency has failed to comply with any time limit under 5 U.S.C. 552(a)(6) and § 802.6(b)(1).

(1) If an agency has determined that unusual circumstances apply (as the term is defined in 5 U.S.C. 552(a)(6)(B)) and the agency provided a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a failure described in 5 U.S.C. 552(a)(6)(B) is excused for an additional 10 days. If the agency fails to comply with the extended time limit, the agency may not assess any search fees (or in the case of a requester as described under this paragraph (l)(1), duplication fees).

(2) If an agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, an agency may charge search fees (or in the case of a requester described under paragraph (l)(1) of this section, duplication fees) if the agency has provided a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).

(3) If a court has determined that exceptional circumstances exist (as that term is defined in 5 U.S.C. 552(a)(6)(C)), a failure described in 5 U.S.C. 552(a)(6)(B) shall be excused for the length of time provided by the court order."
28:28:2.0.6.5.3.3.127.1,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.11 Purpose and scope.,CSOSA,,,,"The regulations in this subpart apply to all records which are contained in a system of records maintained by the Agency and which are retrieved by an individual's name or personal identifier. This subpart implements the Privacy Act by establishing Agency policy and procedures providing for the maintenance of and guaranteed access to records. Under these procedures:

(a) You can ask us whether we maintain records about you or obtain access to your records; and

(b) You may seek to have your record corrected or amended if you believe that your record is not accurate, timely, complete, or relevant."
28:28:2.0.6.5.3.3.127.10,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.20 Accounting of disclosures.,CSOSA,,,,"(a) We will provide an accounting of all disclosures of a record for five years or until the record is destroyed, whichever is longer, except that no accounting will be provided to the record subject for disclosures made to law enforcement agencies and no accounting will be made for:

(1) Disclosures made under the FOIA;

(2) Disclosures made within the agency; and

(3) Disclosures of your record made with your written consent.

(b) The accounting will include:

(1) The date, nature, and purpose of the disclosure; and

(2) The name and address of the person or entity to whom the disclosure is made.

(c) You may request access to an accounting of disclosures of your record. Your request should be in accordance with the procedures in § 802.14. You will be granted access to an accounting of the disclosures of your record in accordance with the procedures of this part which govern access to the related record, excepting disclosures made for an authorized civil or criminal law enforcement agency as provided by subsection (c)(3) of the Privacy Act. You will be required to provide reasonable identification."
28:28:2.0.6.5.3.3.127.11,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.21 Appeals.,CSOSA,,,,You may appeal a denial of a request for an accounting to the Office of the General Counsel in the same manner as a denial of a request for access to records (See § 802.16) and the same procedures will be followed.
28:28:2.0.6.5.3.3.127.12,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.22 Fees.,CSOSA,,,,The Agency shall charge fees under the Privacy Act for duplication of records only. These fees shall be at the same rate the Agency charges for duplication fees under the Freedom of Information Act ( See  § 802.10(i)(1)).
28:28:2.0.6.5.3.3.127.13,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.23 Use and disclosure of social security numbers.,CSOSA,,,,"(a)  In general.  An individual shall not be denied any right, benefit, or privilege provided by law because of such individual's refusal to disclose his or her social security number.

(b)  Exceptions.  The provisions of paragraph (a) of this section do not apply with respect to:

(1) Any disclosure which is required by Federal statute, or

(2) The disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

(c)  Requests for disclosure of social security number.  If the Agency requests an individual to disclose his or her social security account number, we shall inform that individual whether:

(1) Disclosure is mandatory or voluntary.

(2) By what statutory or other authority such number is solicited, and

(3) What uses will be made of it."
28:28:2.0.6.5.3.3.127.2,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.12 Definitions.,CSOSA,,,,"As used in this subpart, the following terms shall have the following meanings:

(a)  Agency  has the meaning as defined in 5 U.S.C. 552(e).

(b)  Individual  means a citizen of the United States or an alien lawfully admitted for permanent residence.

(c)  Maintain  includes maintain, collect, use, or disseminate.

(d)  Record  means any item, collection, or grouping of information about an individual that is maintained by the Agency. This includes, but is not limited to, the individual's education, financial transactions, medical history, and criminal or employment history and that contains the name, or an identifying number, symbol, or other identifying particular assigned to the individual, such as a fingerprint or a photograph.

(e)  System of records  means a group of any records under the control of the Agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

(f)  Statistical record  means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or part in making any determination about an identifiable individual, except as provided by 13 U.S.C. 8.

(g)  Routine use  means the disclosure of a record that is compatible with the purpose for which the record was collected.

(h)  Request for access  means a request made pursuant to 5 U.S.C. 552a(d)(1).

(i)  Request for amendment  means a request made pursuant to 5 U.S.C. 552a(d)(2).

(j)  Request for accounting  means a request made pursuant to 5 U.S.C. 552a(c)(3)."
28:28:2.0.6.5.3.3.127.3,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.13 Verifying your identity.,CSOSA,,,,"(a)  Requests for your own records.  When you make a request for access to records about yourself, you must verify your identity. You must state your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted by you under 28 U.S.C. 1746. In order to help the identification and location of requested records, you may also, at your option, include your social security number.

(b)  Requests on behalf of another.  Information that concerns an individual and that is contained in a system of records maintained by the Agency shall not be disclosed to any person, or to another agency, except under the provisions of the Privacy Act, 5 U.S.C. 552a, or the Freedom of Information Act, 5 U.S.C. 552.

(c)  Disclosure criteria.  Staff may disclose information from an agency system of records only if one or more of the following criteria apply:

(1) With the written consent of the individual to whom the record pertains.

(2) Pursuant to a specific exception listed under the Privacy Act (5 U.S.C. 552a(b)). For example, specific exceptions allow disclosure:

(i) To employees within the Agency who have a need for the record in the performance of their duties.

(ii) If disclosure is required under FOIA when the public interest in disclosure of the information outweighs the privacy interest involved.

(iii) For a routine use described in the agency system of records as published in the  Federal Register.

(A) The published notices for these systems describe the records contained in each system and the routine uses for disclosing these records without first obtaining the consent of the person to whom the records pertain.

(B) CSOSA publishes notices of system of records, including all pertinent routine uses, in the  Federal Register."
28:28:2.0.6.5.3.3.127.4,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.14 Requests for access to records.,CSOSA,,,,"(a)  Submission and processing procedures.  (1) Requests for any agency record about yourself ordinarily will be processed pursuant to the Privacy Act, 5 U.S.C. 552a. Such a request must be made in writing and addressed to the FOIA Officer, Office of the General Counsel, Court Services and Offender Supervision Agency, 633 Indiana Avenue, NW., Washington, DC 20004. The requester should clearly mark on the face of the letter and the envelope “Privacy Act Request.”

(2) Your request will be considered received as of the date it is received by the Office of the General Counsel. For quickest possible handling, you should mark both your request letter and the envelope “Privacy Act Request.”

(3) You must describe the records that you seek in enough detail to enable Agency personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient and subject matter of the record. As a general rule, the more specific you are about the records or type of records that you want, the more likely the Agency will be able to locate the records in response to your request. If a determination is made that your request does not reasonably describe records, the Agency will tell you either what additional information is needed or why your request is otherwise insufficient. You will be given the opportunity to discuss your request so that you may modify it to meet the requirements of this section.

(b)  Release and review procedures.  Upon written request by an individual to gain access to his or her records which are not otherwise exempted, CSOSA shall permit the individual and, upon the individual's request, a person of his or her choosing to accompany him or her, to review the record and have a copy of all or any portion of the record. If a document contains information exempt from disclosure under the Privacy Act, any reasonably segregable portion of the record will be provided to the requester after deletion of the exempt portions.

(2) A requester will be notified of the decision on the request in writing.

(3) Generally, all Privacy Act requests will be processed in the approximate order of receipt, unless the requester shows exceptional circumstances exist to justify an expedited response ( see  § 802.8)."
28:28:2.0.6.5.3.3.127.5,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.15 Denial of request.,CSOSA,,,,"(a)  Denial in whole or in part.  If it is determined that the request for records should be denied in whole or in part, the requester shall be notified by mail. The letter of notification shall:

(1) State the PA and FOIA exemptions relied on in not granting the request;

(2) If technically feasible, indicate the amount of information deleted at the place in the record where such deletion is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);

(3) Set forth the name and title or position of the responsible official;

(4) Advise the requester of the right to an administrative appeal in accordance with § 802.16; and

(5) Specify the official or office to which such appeal shall be submitted.

(b)  No records found.  If it is determined, after a thorough search for records by the responsible official or his delegate, that no records have been found to exist, the responsible official will so notify the requester in writing. The letter of notification will advise the requester of the right to administratively appeal the determination that no records exist ( i.e.,  to challenge the adequacy of the search for responsive records) in accordance with § 802.16. The notification shall specify the official or office to which the appeal shall be submitted for review."
28:28:2.0.6.5.3.3.127.6,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.16 Administrative appeal.,CSOSA,,,,"(a) A requester may appeal an Agency initial determination when:

(1) Access to records has been denied in whole or in part; or

(2) It has been determined that no responsive records exist.

(b) Appeals of initial determinations must be made within 30 days of the receipt of the letter denying the request. Both the envelope and the letter of appeal should be sent to the Office of the General Counsel, Court Services and Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220, Washington, DC 20004 and must be clearly marked “Privacy Act Appeal.”

(c) The General Counsel will make an appeal determination within 30 days (excluding Saturdays, Sundays, and holidays) from the date of receipt of the appeal. However, for a good reason, this time limit may be extended. If, after review, the General Counsel determines that additional information should be released, it will accompany the appeal response. If, after review, the General Counsel determines to uphold the initial review, we will inform you of that decision."
28:28:2.0.6.5.3.3.127.7,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.17 Documents from other agencies.,CSOSA,,,,"(a)(1)  Documents from or pertaining to Federal agencies.  When a request for records includes a document from another Federal agency, the document will be referred to the originating Federal agency for a determination of its releasability. The requester will be informed of the referral. This is not a denial of a Privacy Act request; thus no appeal rights accrue to the requester.

(2) When a Privacy Act request is received for a record created by the Agency that includes information originated by another Federal agency, the record will be referred to the originating agency for review and recommendation on disclosure. The Agency will not release any such record without prior consultation with the originating agency.

(b)  Documents from non-Federal agencies.  When a request for records includes a document from a non-Federal agency, CSOSA staff must make a determination of its releasability."
28:28:2.0.6.5.3.3.127.8,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.18 Correction or amendment of records.,CSOSA,,,,"This section applies to all records kept by the Agency except for records of earnings. If you believe your record is not accurate, relevant, timely, or complete, you may request that your record be corrected or amended. A request for correction or amendment must identify the particular record in question, state the correction or amendment sought, and set forth the justification for the correction. To amend or correct your record, you should write to the Office of the General Counsel identified in § 802.14(a)(1). You should submit any available evidence to support your request. Both the request and the envelope must be clearly marked “Privacy Act Correction Request.” Your request should indicate:

(a) The system of records from which the record is retrieved;

(b) The particular record which you want to correct or amend;

(c) Whether you want to add, delete or substitute information in the records; and

(d) Your reasons for believing that your record should be corrected or amended."
28:28:2.0.6.5.3.3.127.9,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,C,Subpart C—Privacy Act,,§ 802.19 Appeal of denial to correct or amend.,CSOSA,,,,"(a) The system manager may grant or deny requests for correction of agency records. One basis for denial may be that the records are contained in an agency system of records that has been published in the  Federal Register  and exempted from the Privacy Act provisions allowing amendment and correction.

(1) Any denial of a request for correction should contain a statement of the reason for denial and notice to the requester that the denial may be appealed to the General Counsel by filing a written appeal.

(2) The appeal should be marked on the face of the letter and the envelope, “PRIVACY APPEAL—DENIAL OF CORRECTION,” and be addressed to the Office of the General Counsel, address cited at § 802.14(a)(1).

(3) The General Counsel will review your request within 30 days from the date of receipt. However, for a good reason, this time limit may be extended. If, after review, the General Counsel determines that the record should be corrected, the record will be corrected. If, after review, the General Counsel refuses to amend the record exactly as you requested, we will inform you:

(i) That your request has been refused and the reason;

(ii) That this refusal is the Agency's final decision;

(iii) That you have a right to seek court review of this request to amend the record; and

(iv) That you have a right to file a statement of disagreement with the decision. Your statement should include the reason you disagree. We will make your statement available to anyone to whom the record is subsequently disclosed, together with a statement of our reasons for refusing to amend the record.

(b) Requests for correction of records prepared by other federal agencies shall be forwarded to that agency for appropriate action and the requester will be immediately notified of the referral in writing.

(c) When the request is for correction of non-Federal records, the requester will be advised to write to that non-Federal entity."
28:28:2.0.6.5.3.4.127.1,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,D,Subpart D—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information,,§ 802.24 Purpose and scope.,CSOSA,,,,"(a) These regulations state the procedures which the Court Services and Offender Supervision Agency (“CSOSA” or “Agency”) and the District of Columbia Pretrial Services Agency (“PSA” or “Agency”) follow in response to a demand from a Federal, state, or local administrative body for the production and disclosure of material in connection with a proceeding to which the Agency is not a party.

(b) These regulations do not apply to congressional requests. Neither do these regulations apply in the case of an employee making an appearance solely in his or her private capacity in judicial or administrative proceedings that do not relate to the Agency (such as cases arising out of traffic accidents, domestic relations, etc.).

(c) This part is not intended and does not create and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States or specifically CSOSA or PSA."
28:28:2.0.6.5.3.4.127.2,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,D,Subpart D—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information,,§ 802.25 Definitions.,CSOSA,,,,"Demand  means a request, order, or subpoena for testimony or documents to use in a legal proceeding.

Employee  includes a person employed in any capacity by CSOSA or PSA, currently or in the past; any person appointed by, or subject to the supervision, jurisdiction, or control of the head of the Agency, or any Agency official, currently or in the past. A person who is subject to the Agency's jurisdiction or control includes any person who hired as a contractor by the agency, any person performing services for the agency under an agreement, and any consultant, contractor, or subcontractor of such person. A former employee is also considered an employee only when the matter about which the person would testify is one in which he or she was personally involved while at the Agency, or where the matter concerns official information that the employee acquired while working at the Agency, such as sensitive or confidential agency information.

Legal Proceeding  includes any pretrial, trial, and post-trial state of any existing or reasonably anticipated judicial or administrative action, hearing, investigation, or similar proceeding before a court, commission, board, agency, or other tribunal, authority or entity, foreign or domestic. Legal proceeding also includes any deposition or other pretrial proceeding, including a formal or informal request for testimony made by an attorney or other person, or a request for documents gathered or drafted by an employee."
28:28:2.0.6.5.3.4.127.3,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,D,Subpart D—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information,,§ 802.26 Receipt of demand.,CSOSA,,,,"If, in connection with a proceeding to which the Agency is not a party, an employee receives a demand from a court or other authority for material contained in the Agency's files, any information relating to material contained in the Agency's files, or any information or material acquired by an employee as a part of the performance of that person's official duties or because of that person's official status, the employee must:

(a) Immediately notify the Office of the General Counsel and forward the demand to the General Counsel if the demand pertains to CSOSA; or

(b) Immediately notify the Deputy Director of PSA and forward the demand to the Deputy Director if the demand pertains to PSA."
28:28:2.0.6.5.3.4.127.4,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,D,Subpart D—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information,,§ 802.27 Compliance/noncompliance.,CSOSA,,,,"The General Counsel is responsible for determining if CSOSA should comply or not comply with the demand, and the Deputy Director of PSA is responsible for determining if PSA should comply with the demand.

(a) An employee may not produce any documents, or provide testimony regarding any information relating to, or based upon Agency documents, or disclose any information or produce materials acquired as part of the performance of that employee's official duties, or because of that employee's official status without prior authorization from the General Counsel or Deputy Director. The reasons for this policy are as follows:

(1) To conserve the time of the agency for conducting official business;

(2) To minimize the possibility of involving the agency in controversial issues that are not related to the agency's mission;

(3) To prevent the possibility that the public will misconstrue variances between personal opinions of agency employees and agency policies;

(4) To avoid spending the time and money of the United States for private purposes;

(5) To preserve the integrity of the administrative process; and

(6) To protect confidential, sensitive information and the deliberative process of the agency.

(b) An attorney from the Office of the General Counsel shall appear with any CSOSA employee upon whom the demand has been made (and with any PSA employee if so requested by the Deputy Director), and shall provide the court or other authority with a copy of the regulations contained in this part. The attorney shall also inform the court or authority that the demand has been or is being referred for prompt consideration by the General Counsel or Deputy Director. The court or other authority will be requested respectfully to stay the demand pending receipt of the requested instructions from the General Counsel or Deputy Director.

(c) If the court or other authority declines to stay the effect of the demand pending receipt of instructions from the General Counsel or Deputy Director, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel or Deputy Director not to produce the material or disclose the information sought, the employee upon whom the demand was made shall respectfully decline to produce the information under  United States ex rel. Touhy  v.  Ragen,  340 U.S. 462 (1951). In this case, the Supreme Court held that a government employee could not be held in contempt for following an agency regulation requiring agency approval before producing government information in response to a court order.

(d) To achieve the purposes noted in paragraphs (a)(1) through (6) of this section, the agency will consider factors such as the following in determining whether a demand should be complied with:

(1) The Privacy Act, 5 U.S.C. 522a;

(2) Department of Health and Human Services statute and regulations concerning drug and alcohol treatment programs found at 42 U.S.C. 290dd and 42 CFR 2.1  et seq.;

(3) The Victims Rights Act, 42 U.S.C. 10606(b);

(4) D.C. statutes and regulations;

(5) Any other state or federal statute or regulation;

(6) Whether disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose;

(7) Whether disclosure is appropriate under the relevant substantive law concerning privilege;

(8) Whether disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection; and

(9) Whether disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired."
28:28:2.0.6.5.3.5.127.1,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,E,Subpart E—Exemption of Records Systems Under the Privacy Act,,§ 802.28 Exemption of the Court Services and Offender Supervision Agency System—limited access.,CSOSA,,,,"The Privacy Act permits specific systems of records to be exempt from some of its requirements.

(a)(1) The following systems of records are exempt from 5 U.S.C. 552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and (g):

(i) Background Investigation (CSOSA-2).

(ii) Supervision Offender Case File (CSOSA-9).

(iii) Pre-Sentence Investigations (CSOSA-10).

(iv) Supervision & Management Automated Record Tracking (SMART) (CSOSA-11).

(v) Recidivism Tracking Database (CSOSA-12).

(vi) [Reserved]

(vii) Substance Abuse Treatment Database (CSOSA-15).

(viii) Screener (CSOSA-16).

(ix) Sex Offender Registry (CSOSA-18).

(2) Exemptions from the particular subsections are justified for the following reasons:

(i) From subsection (c)(3) because offenders will not be permitted to gain access or to contest contents of these record systems under the provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure accountings can compromise legitimate law enforcement activities and CSOSA responsibilities.

(ii) From subsection (c)(4) because exemption from provisions of subsection (d) will make notification of formal disputes inapplicable.

(iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) because exemption from this subsection is essential to protect internal processes by which CSOSA personnel are able to formulate decisions and policies with regard to offenders, to prevent disclosure of information to offenders that would jeopardize legitimate correctional interests of rehabilitation, and to permit receipt of relevant information from other federal agencies, state and local law enforcement agencies, and federal and state probation and judicial offices.

(iv) From subsection (e)(1) because primary collection of information directly from offenders about criminal history or criminal records is highly impractical and inappropriate.

(A) It is not possible in all instances to determine relevancy or necessity of specific information in the early stages of a criminal or other investigation.

(B) Relevance and necessity are questions of judgment and timing; what appears relevant and necessary when collected ultimately may be deemed unnecessary. It is only after the information is assessed that its relevancy and necessity in a specific investigative activity can be established.

(C) In interviewing individuals or obtaining other forms of evidence or information during an investigation, information could be obtained, the nature of which would leave in doubt its relevancy and necessity. Such information, however, could be relevant to another investigation or to an investigative activity under the jurisdiction of another agency.

(v) From subsection (e)(2) because the nature of criminal and other investigative activities is such that vital information about an individual can only be obtained from other persons who are familiar with such individual and his/her activities. In such investigations it is not feasible to rely upon information furnished by the individual concerning his/her own activities.

(vi) From subsection (e)(3) because disclosure would provide the subject with substantial information which could impede or compromise the investigation. The individual could seriously interfere with investigative activities and could take appropriate steps to evade the investigation or flee a specific area.

(vii) From subsection (e)(8) because the notice requirements of this provision could seriously interfere with a law enforcement activity by alerting the subject of a criminal or other investigation of existing investigative interest.

(viii) Those sections would otherwise require CSOSA to notify an individual of investigatory materials contained in a record pertaining to him/her, permit access to such record, permit requests for its correction (section 552a(d), (e)(4)(G), and (H)); make available to him/her any required accounting of disclosures made of the record (section 552a(c)(3)), publish the sources of records in the system (section 552a(4)(I)); and screen records to insure that there is maintained only such information about an individual as is relevant to accomplish a required purpose of the Agency (section 552(e)(1)). In addition, screening for relevancy to Agency purposes, a correction or attempted correction of such materials could require excessive amounts of time and effort on the part of all concerned.

(b)(1) The following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4), (d), (e)(1)-(e)(3), (4)(H), (5), (8) and (g):

(i) Office of Professional Responsibility Record (OPR) (CSOSA-17).

(ii) [Reserved]

(2) Exemptions from the particular subsections are justified for the following reasons:

(i) From subsection (c)(3) because release of disclosure accounting could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and the fact that they are subjects of the investigation, and reveal investigative interest by not only the OPR but also by the recipient agency. Since release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation, release could result in activities that would impede or compromise law enforcement such as: the destruction of documentary evidence; improper influencing of witnesses; endangerment of the physical safety of confidential sources, witnesses, and law enforcement personnel; fabrication of testimony; and flight of the subject from the area. In addition, release of disclosure accounting could result in the release of properly classified information which could compromise the national defense or disrupt foreign policy.

(ii) From subsection (c)(4) because this system is exempt from the access provisions of subsection (d) pursuant to subsections (j) and (k) of the Privacy Act.

(iii) From the access and amendment provisions of subsection (d) because access to the records contained in this system of records could provide the subject of an investigation with information concerning law enforcement activities such as that relating to an actual or potential criminal, civil or regulatory violation; the existence of an investigation; the nature and scope of the information and evidence obtained as to his activities; the identity of confidential sources, witnesses, and law enforcement personnel; and information that may enable the subject to avoid detection or apprehension. Such disclosure would present a serious impediment to effective law enforcement where they prevent the successful completion of the investigation; endanger the physical safety of confidential sources, witnesses, and law enforcement personnel; and/or lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony. In addition, granting access to such information could disclose security-sensitive or confidential business information or information that would constitute an unwarranted invasion of the personal privacy of third parties. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated.

(iv) From subsection (e)(1) because the application of this provision could impair investigations and interfere with the law enforcement responsibilities of the OPR for the following reasons:

(A) It is not possible to detect relevance or necessity of specific information in the early stages of a civil, criminal or other law enforcement investigation, case, or matter, including investigations in which use is made of properly classified information. Relevance and necessity are questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established.

(B) During the course of any investigation, the OPR may obtain information concerning actual or potential violations of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, the OPR should retain this information as it may aid in establishing patterns of criminal activity, and can provide valuable leads for Federal and other law enforcement agencies.

(C) In interviewing individuals or obtaining other forms of evidence during an investigation, information may be supplied to an investigator which relates to matters incidental to the primary purpose of the investigation but which may relate also to matters under the investigative jurisdiction of another agency. Such information cannot readily be segregated.

(v) From subsection (e)(2) because, in some instances, the application of this provision would present a serious impediment to law enforcement for the following reasons:

(A) The subject of an investigation would be placed on notice as to the existence of an investigation and would therefore be able to avoid detection or apprehension, to improperly influence witnesses, to destroy evidence, or to fabricate testimony.

(B) In certain circumstances the subject of an investigation cannot be required to provide information to investigators, and information relating to a subject's illegal acts, violations of rules of conduct, or any other misconduct must be obtained from other sources.

(C) In any investigation it is necessary to obtain evidence from a variety of sources other than the subject of the investigation in order to verify the evidence necessary for successful litigation.

(vi) From subsection (e)(3) because the application of this provision would provide the subject of an investigation with substantial information which could impede or compromise the investigation. Providing such notice to a subject of an investigation could interfere with an undercover investigation by revealing its existence, and could endanger the physical safety of confidential sources, witnesses, and investigators by revealing their identities.

(vii) From subsection (e)(5) because the application of this provision would prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment it is collected. In the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Material which may seem unrelated, irrelevant, or incomplete when collected may take on added meaning or significance as an investigation progresses. The restrictions of this provision could interfere with the preparation of a complete investigation report, and thereby impede effective law enforcement.

(viii) From subsection (e)(8) because the application of this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation, and could reveal investigation techniques, procedures, and/or evidence.

(ix) From subsection (g) to the extent that this system is exempt from the access and amendment provisions of subsection (d) pursuant to subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act."
28:28:2.0.6.5.3.5.127.2,28,Judicial Administration,VIII,,802,PART 802—DISCLOSURE OF RECORDS,E,Subpart E—Exemption of Records Systems Under the Privacy Act,,§ 802.29 Exemption of the Pretrial Services Agency System.,CSOSA,,,,"The Privacy Act permits specific systems of records to be exempt from some of its requirements.

(a)(1) The following systems of records are exempt from 5 U.S.C. 552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and (g):

(i) Automated Bail Agency Database (ABADABA) (CSOSA/PSA-1).

(ii) Drug Test Management System (DTMS) (CSOSA/PSA-2).

(iii) Interview and Treatment Files (CSOSA/PSA-3).

(iv) Pretrial Realtime Information Systems Manager (PRISM) (CSOSA/PSA-6).

(2) Exemptions from the particular subsections are justified for the following reasons:

(i) From subsection (c)(3) because defendants/offenders will not be permitted to gain access or to contest contents of these record systems under the provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure accountings can compromise legitimate law enforcement activities and CSOSA/PSA responsibilities.

(ii) From subsection (c)(4) because exemption from provisions of subsection (d) will make notification of formal disputes inapplicable.

(iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) because exemption from this subsection is essential to protect internal processes by which CSOSA/PSA personnel are able to formulate decisions and policies with regard to defendants/offenders, to prevent disclosure of information to defendants/offenders that would jeopardize legitimate correctional interests of rehabilitation, and to permit receipt of relevant information from other federal agencies, state and local law enforcement agencies, and federal and state probation and judicial offices.

(iv) From subsection (e)(1) because primary collection of information directly from defendants/offenders about criminal history or criminal records is highly impractical and inappropriate.

(A) It is not possible in all instances to determine relevancy or necessity of specific information in the early stages of a criminal or other investigation.

(B) Relevancy and necessity are questions of judgment and timing; what appears relevant and necessary when collected ultimately may be deemed unnecessary. It is only after the information is assessed that its relevancy and necessity in a specific investigative activity can be established.

(C) In interviewing individuals or obtaining other forms of evidence or information during an investigation, information could be obtained, the nature of which would leave in doubt its relevancy and necessity. Such information, however, could be relevant to another investigation or to an investigative activity under the jurisdiction of another agency.

(v) From subsection (e)(2) because the nature of criminal and other investigative activities is such that vital information about an individual can only be obtained from other persons who are familiar with such individual and his/her activities. In such investigations it is not feasible to rely upon information furnished by the individual concerning his/her own activities.

(vi) From subsection (e)(3) because disclosure would provide the subject with substantial information which could impede or compromise the investigation. The individual could seriously interfere with investigative activities and could take appropriate steps to evade the investigation or flee a specific area.

(vii) From subsection (e)(8) because the notice requirements of this provision could seriously interfere with a law enforcement activity by alerting the subject of a criminal or other investigation of existing investigative interest.

(viii) Those sections would otherwise require CSOSA to notify an individual of investigatory materials contained in a record pertaining to him/her, permit access to such record, permit requests for its correction (section 552a(d), (e)(4)(G), and (H)); make available to him/her any required accounting of disclosures made of the record (section 552a(c)(3)), publish the sources of records in the system (section 552a(4)(I)); and screen records to insure that there is maintained only such information about an individual as is relevant to accomplish a required purpose of the Agency (section 552(e)(1)). In addition, screening for relevancy to Agency purposes, a correction or attempted correction of such materials could require excessive amounts of time and effort on the part of all concerned.

(b) [Reserved]"
49:49:7.1.4.1.3.1.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,A,Subpart A—Applicability and Policy,,§ 802.1 Purpose and scope.,NTSB,,,"[41 FR 39758, Sept. 16, 1976]","The purpose of this part is to implement the provisions of 5 U.S.C. 552a with respect to the availability to an individual of records of the National Transportation Safety Board (NTSB) maintained on individuals. NTSB policy encompasses the safeguarding of individual privacy from any misuse of Federal records and the provision of access to individuals to NTSB records concerning them, except where such access is in conflict with the Freedom of Information Act, or other statute."
49:49:7.1.4.1.3.1.1.2,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,A,Subpart A—Applicability and Policy,,§ 802.2 Definitions.,NTSB,,,,"In this part:

Board  means the five Members of the National Transportation Safety Board, or a quorum thereof;

Individual  means a citizen of the United States or an alien lawfully admitted for permanent residence;

National Transportation Safety Board (NTSB)  means the agency set up under the Independent Safety Board Act of 1974;

Record  means any item, collection, or grouping of information about an individual that is maintained under the control of the NTSB pursuant to Federal law or in connection with the transaction of public business, including, but not limited to, education, financial transactions, medical history, and criminal or employment history, and that contains a name, or an identifying number, symbol, or other identifying particular assigned to an individual, such as a finger or voice imprint or photograph;

Routine use  means the use of such record for a purpose compatible with the purpose for which it was collected, including, but not limited to, referral to law enforcement agencies of violations of the law and for discovery purposes ordered by a court referral to potential employers, and for security clearance;

Statistical record  means a record in a system of records maintained for statistical research or reporting purposes only and which is not used wholly or partially in any determination concerning an identifiable individual;

System Manager  means the agency official who is responsible for the policies and practices of his particular system or systems of record, as specified in the NTSB notices of systems or records; and

System of records  means a group of any records under the control of the NTSB from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual, whether presently in existence or set up in the future."
49:49:7.1.4.1.3.2.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,B,Subpart B—Initial Procedures and Requirements,,§ 802.5 Procedures for requests pertaining to individual records in a record system.,NTSB,,,,"The NTSB may not disclose any record to any person or other agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, provided the record under the control of the NTSB is maintained in a system of records from which information is retrieved by the name of the individual or by some identifying number, symbol, or other particular assigned to such individual. Written consent is not required if the disclosure is:

(a) To officers or employees of the NTSB who require the information in the official performance of their duties;

(b) Required under 5 U.S.C. 552, Freedom of Information Act;

(c) For a routine use compatible with the purpose for which it was collected;

(d) To the Bureau of the Census for uses pursuant to title 13, U.S.C.;

(e) To a recipient who has provided the NTSB with advance adequate assurance that the record will be used solely as a statistical research or reporting record and that it is to be transferred in a form not individually identifiable; or

(f) Pursuant to the order of a court of competent jurisdiction."
49:49:7.1.4.1.3.2.1.2,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,B,Subpart B—Initial Procedures and Requirements,,§ 802.6 Types of requests and specification of records.,NTSB,,,,"(a)  Types of requests.  An individual may make the following request respecting records about himself maintained by NTSB in any system of records subject to the Act:

(1) Whether information concerning himself is contained in any system of records.

(2) Access to a record concerning himself. Such request may include a request to review the record and/or obtain a copy of all or any portion thereof.

(3) Correction or amendment of a record concerning himself.

(4) Accounting of disclosure to any other person or Government agency of any record concerning himself contained in any system of records controlled by NTSB, except: (i) Disclosures made pursuant to the FOIA; (ii) disclosures made within the NTSB; (iii) disclosures made to another Government agency or instrumentality for an authorized law enforcement activity pursuant to subsection (b)(7) of the Act; and (iv) disclosures expressly exempted by NTSB from the requirements of subsection (c)(3) of the Act, pursuant to subsection (k) thereof.

(b)  Specification of records.  All requests for access to records must reasonably describe the system of records and the individual's record within the system of records in sufficient detail to permit identification of the requested record. Specific information regarding the system name, the individual's full name, and other information helpful in identifying the record or records shall be included. Requests for correction or amendment of records shall, in addition, specify the particular record involved, state the nature of the correction or amendment sought, and furnish justification for the correction or amendment.

(c)  Inadequate identification of record.  Requests which do not contain information sufficient to identify the record requested will be returned promptly to the requester, with a notice indicating what information is lacking. Individuals making requests in person will be informed of any deficiency in the specification of the records at the time the request is made. Individuals making requests in writing will be notified of any such deficiency when their request is acknowledged."
49:49:7.1.4.1.3.2.1.3,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,B,Subpart B—Initial Procedures and Requirements,,"§ 802.7 Requests: How, where, and when presented; verification of identity of individuals making requests; accompanying persons; and procedures for acknowledgment of requests.",NTSB,,,"[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]","(a)  Requests—general.  Requests may be made in person or in writing. Assistance regarding requests or other matters relating to the Act may be obtained by writing to the Director, Bureau of Administration, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594. The Director, Bureau of Administration, or his designee, on request, will aid an individual in preparing an amendment to the record or to an appeal following denial of a request to amend the record, pursuant to subsection (f)(4) of the Act.

(b)  Written requests.  Written requests shall be made to the Director, Bureau of Administration at the address given above, and shall clearly state on the envelope and on the request itself, “Privacy Act Request,” “Privacy Act Statement of Disagreement,” “Privacy Act Disclosure Accounting Request,” “Appeal from Privacy Act Adverse Determination,” or “Privacy Act Correction Request,” as the case may be. Actual receipt by the Director, Bureau of Administration, or his designee, shall constitute receipt.

(c)  Requests made in person.  Requests may be made in person during official working hours of the NTSB at the office where the record is located, as listed in the “Notice of Systems of Records” for the system in which the record is contained.

(d)  Verification of identity of requester.  (1) For written requests, the requester's identity must be verified before the release of any record, unless exempted under the FOIA. This may be accomplished by adequate proof of identity in the form of a driver's license or other acceptable item of the same type.

(2) For requests in person, the requester's identity may be established by a single document bearing a photograph (such as a passport or identification badge) or by two items of identification containing name, address, and signature (such as a driver's license or credit card).

(3) Where a request is made for reproduced records which are to be delivered by mail, the request must include a notarized statement verifying the requester's identity.

(e)  Inability to provide requisite documentation of identity.  A requester who cannot provide the necessary documentation of identity may provide a notarized statement, swearing or affirming his identity and the fact that he is aware of the penalties for false statement imposed pursuant to 18 U.S.C. 1001, and subsection (i)(3) of the Act. Where requested, the Director, Bureau of Administration, or his designee, will assist the requester in formulating the necessary document.

(f)  Accompanying persons.  A requester may wish to have a person of his choice accompany him to review the requested record. Prior to the release of the record, the NTSB will require the requester to furnish the Director, Bureau of Administration or his designee, with a written statement authorizing disclosure of the record in the accompanying person's presence.

(g)  Acknowledgment of requests.  Written requests to verify the existence of, to obtain access to, or to correct or amend records about the requester maintained by NTSB in any system of records subject to the Act, shall be acknowledged in writing by the Director, Bureau of Administration, or his designee, within 3 working days after the date of actual receipt of the request by the Director, Bureau of Administration, or his designee. The acknowledgment shall advise the requester of the need for any additional information to process the request. Wherever practicable, the acknowledgment shall notify the individual whether his request has been granted or denied. When a request is made in person, every effort will be made to determine immediately whether the request will be granted. If such decision cannot be made, the request will be processed in the same manner as a written request. Records will be made available for immediate inspection whenever possible."
49:49:7.1.4.1.3.3.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,C,Subpart C—Initial Determinations,,§ 802.8 Disclosure of requested information.,NTSB,,,"[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]","(a) The System Manager may initially determine that the request be granted. If so, the individual making the request shall be notified orally, or in writing, and the notice shall include:

(1) A brief description of the information to be made available;

(2) The time and place where the record may be inspected, or alternatively, the procedure for delivery by mail to the requesting party;

(3) The estimated cost for furnishing copies of the record;

(4) The requirements for verification of identity;

(5) The requirements for authorizing discussion of the record in the presence of an accompanying person; and

(6) Any additional requirements needed to grant access to a specific system of records or record.

(b) Within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, in appropriate cases, the requester will be informed:

(1) That the request does not reasonably describe the system of records or record sought to permit its identification, and shall set forth the additional information needed to clarify the request; or

(2) That the system of records identified does not include a record retrievable by the requester's name or other identifying particulars.

(c) The System Manager shall advise the requester within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, that the request for access has been denied, and the reason for the denial, or that the determination has been made to grant the request, either in whole or in part, in which case the relevant information will be provided."
49:49:7.1.4.1.3.4.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,D,Subpart D—Correction or Amending the Record,,§ 802.10 Request for correction or amendment to record.,NTSB,,,"[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]","All requests for correcting or amending records shall be made in writing to the Director, Bureau of Administration, National Transportation Safety Board, 800 Independence Avenue., SW., Washington, DC 20594, and shall be deemed received upon actual receipt by the Director, Bureau of Administration. The request shall clearly be marked on the envelope and in the letter with the legend that it is a “Privacy Act Correction Request.” The request must reasonably set forth the portion of the record which the individual contends is not accurate, relevant, timely, or complete."
49:49:7.1.4.1.3.4.1.2,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,D,Subpart D—Correction or Amending the Record,,§ 802.11 Agency review of requests for correction or amendment of record.,NTSB,,,"[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]","Within 10 working days after actual receipt of the request by the Director, Bureau of Administration, or his designee, to correct or amend the record, the System Manager shall either make the correction in whole or in part, or inform the individual of the refusal to correct or amend the record as requested, and shall present the reasons for any denials."
49:49:7.1.4.1.3.4.1.3,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,D,Subpart D—Correction or Amending the Record,,§ 802.12 Initial adverse agency determination on correction or amendment.,NTSB,,,,"If the System Manager determines that the record should not be corrected or amended in whole or in part, he will forthwith make such finding in writing, after consulting with the General Counsel, or his designee. The requester shall be notified of the refusal to correct or amend the record. The notification shall be in writing, signed by the System Manager, and shall include—

(a) The reason for the denial;

(b) The name and title or position of each person responsible for the denial of the request;

(c) The appeal procedures for the individual for a review of the denial; and

(d) Notice that the denial from the System Manager is appealable within 30 days from the receipt thereof by the requester to the Board.

The System Manager is allotted 10 working days (or within such extended period as is provided in the section concerning “unusual circumstances”  infra ) to respond to the request for review. If the requester does not receive an answer within such time, the delay shall constitute a denial of the request and shall permit the requester immediately to appeal to the Board, or to a district court."
49:49:7.1.4.1.3.5.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,E,Subpart E—Review of Initial Adverse Determination,,§ 802.14 Review procedure and judicial review.,NTSB,,,"[41 FR 22358, June 3, 1976, as amended at 41 FR 43154, Sept. 30, 1976]","(a) A requester may appeal from any adverse determination within 30 days after actual receipt of a denial from the System Manager. The appeal must be in writing addressed to the Chairman, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594, and shall contain a statement on the envelope and in the appeal: “Appeal from Privacy Act Adverse Determination.”

(b) The Board shall make a determination with respect to the appeal within 30 working days after the actual receipt of the appeal by the Chairman, except as provided for in “unusual circumstances” infra.

(c)(1)  Review of denial of access.  If the appeal upholds the denial of access to records, the Board shall: Notify the requester in writing, explaining the Board's determination; state that the denial is a final agency action and that judicial review is available in a district court of the United States in the district where the requester resides or has his principal place of business, or where the agency records are located, or in the District of Columbia; and request a filing with the Board of a concise statement enumerating the reasons for the requester's disagreement with the denial, pursuant to subsection (g) of the Act.

(2)  Review of denial of correction or amendment.  If the appeal upholds the denial in whole or in part for correction or amendment of the record, the same notification and judicial review privileges described in paragraph (c)(1) of this section shall apply.

(d) If the denial is reversed on appeal, the Board shall notify the requester in writing of the reversal. The notice shall include a brief statement outlining those portions of the individual's record which were not accurate, relevant, timely, or complete, and corrections of the record which were made, and shall provide the individual with a courtesy copy of the corrected record.

(e) Copies of all appeals and written determinations will be furnished by the System Manager to the Board.

(f) In unusual circumstances, time limits may be extended by not more than 10 working days by written notice to the individual making the request. The notice shall include the reasons for the extension and the date on which a determination is expected to be forthcoming. “Unusual circumstances” as used in this section shall include circumstances where a search and collection of the requested records from field offices or other establishments are required, cases where a voluminous amount of data is involved, and cases where consultations are required with other agencies or with others having a substantial interest in the determination of the request.

(g)  Statements of Disagreement.  (1) Written Statements of Disagreement may be furnished by the individual within 30 working days of the date of actual receipt of the final adverse determination of the Board. They shall be addressed to the Director, Bureau of Administration, National Transportation Safety Board, 800 Independence Avenue, SW., Washington, DC 20594, and shall be clearly marked, both on the statement and on the envelope, “Privacy Act Statement of Disagreement.”

(2) The Director, Bureau of Administration, or his designee, shall be responsible for ensuring that:

(i) The Statement of Disagreement is included in the system of records in which the disputed item of information is maintained; and

(ii) The original record is marked to indicate the information disputed, the existence of the Statement of Disagreement, and its location within the relevant system of records.

(3) The Director, Bureau of Administration, or his designee, may, if he deems it appropriate, prepare a concise Statement of Explanation indicating why the requested amendments or corrections were not made. Such Statement of Explanation shall be included in the system of records in the same manner as the Statement of Disagreement. Courtesy copies of the NTSB Statement of Explanation and the notation of dispute, as marked on the original record, shall be furnished to the individual who requested correction or amendment of the record.

(h)  Notices of correction and/or amendment, or dispute.  After a record has been corrected or a Statement of Disagreement has been filed, the Director, Bureau of Administration, or his designee, shall within 30 working days thereof, advise all previous recipients of the affected record as to the correction or the filing of the Statement of Disagreement. The identity of such recipients shall be determined pursuant to an accounting of disclosures required by the Act or any other accounting previously made. Any disclosure of disputed information occurring after a Statement of Disagreement has been filed shall clearly identify the specific information disputed and shall be accompanied by a copy of the Statement of Disagreement and a copy of any NTSB Statement of Explanation.

(i)  Disclosure to others of records concerning individuals.  Neither the Board nor other NTSB personnel shall disclose any record which is contained in a system of records maintained by NTSB, by any means of communication, including oral communication, to any person, or to another Government agency, except pursuant to a written request by, or with the prior written consent, of the individual to whom the record pertains, unless disclosure of the record is:

(1) To the Board and NTSB personnel who have a need for the record in the performance of their duties;

(2) Required under the FOIA;

(3) For a routine use published in the  Federal Register ;

(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey, or related activity pursuant to the provisions of title 13 of the U.S.C.;

(5) To a recipient who has provided NTSB with adequate advance written assurance that the record will be used solely as a statistical research or reporting record and that the record is transferred in a form that is not identifiable with respect to individuals; 
 1

1  The advance written statement of assurance shall state the purpose for which the record is requested and certify that it will be used only for statistical purposes. Prior to release under this paragraph, the record shall be stripped of all personally identifiable information and reviewed to ensure that the identity of any individual cannot reasonably be determined by combining two or more statistical records.

(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or to the Administrator of the General Services Administration, or his designee, for evaluation to determine whether the record has such value;

(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to NTSB specifying the particular portion of the record desired and the law enforcement activity for which the record is sought; 
 2

2  A record may be disclosed to a law enforcement agency at the initiative of NTSB if criminal conduct is suspected, provided that such disclosure has been established as a routine use by publication in the  Federal Register,  and the instance of misconduct is directly related to the purpose for which the record is maintained.

(8) To any person upon a showing of compelling circumstances affecting the health or safety of any individual;

(9) To either House of Congress or, to the extent of matter within its jurisdiction, to any committee, or subcommittee thereof, or to any joint committee of the Congress, or to any subcommittee of such joint committee;

(10) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office; or

(11) Pursuant to the order of a court of competent jurisdiction.

(j)  Notices of subpoenas.  When records concerning an individual are subpoenaed or otherwise disclosed pursuant to court order, the NTSB officer or employee served with the subpoena shall be responsible for assuring that the individual is notified of the disclosure within 5 days after such subpoena or other order becomes a matter of public record. The notice shall be mailed to the last known address of the individual and shall contain the following information: (1) The date the subpoena is returnable; (2) the court in which it is returnable; (3) the name and number of the case or proceeding; and (4) the nature of the information sought.

(k)  Notices of emergency disclosures.  When information concerning an individual has been disclosed to any person under compelling circumstances affecting health or safety, the NTSB officer or employee who made or authorized the disclosure shall notify the individual at his last known address within 5 days of the disclosure. The notice shall contain the following information: (1) The nature of the information disclosed; (2) the person or agency to whom the information was disclosed; (3) the date of the disclosure; and (4) the compelling circumstances justifying the disclosure."
49:49:7.1.4.1.3.6.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,F,Subpart F—Fees,,§ 802.15 Fees.,NTSB,,,,"No fees shall be charged for providing the first copy of a record, or any portion thereof, to individuals to whom the record pertains. The fee schedule for other records is the same as that appearing in the appendix to part 801 of this chapter, implementing the FOIA, as amended from time to time, except that the cost of any search for and review of the record shall not be included in any fee under this Act, pursuant to subsection (f)(5) of the Act."
49:49:7.1.4.1.3.7.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,G,Subpart G—Penalties,,§ 802.18 Penalties.,NTSB,,,,"(a) An individual may bring a civil action against the NTSB to correct or amend the record, or where there is a refusal to comply with an individual request or failure to maintain any record with accuracy, relevance, timeliness and completeness, so as to guarantee fairness, or failure to comply with any other provision of 5 U.S.C. 552a. The court may order the correction or amendment. It may assess against the United States reasonable attorney fees and other costs, or may enjoin the NTSB from withholding the records and order the production to the complainant, and it may assess attorney fees and costs.

(b) Where it is determined that the action was willful or intentional with respect to 5 U.S.C. 552(g)(1) (c) or (d), the United States shall be liable for the actual damages sustained, but in no case less than the sum of $1,000 and the costs of the action with attorney fees.

(c) Criminal penalties may be imposed against an officer or employee of the NTSB who fully discloses material which he knows is prohibited from disclosure, or who willfully maintains a system of records without meeting the notice requirements, or who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses. These offenses shall be misdemeanors with a fine not to exceed $5,000."
49:49:7.1.4.1.3.8.1.1,49,Transportation,VIII,,802,PART 802—RULES IMPLEMENTING THE PRIVACY ACT OF 1974,H,Subpart H—Specific Exemptions,,§ 802.20 Security records.,NTSB,,,,"Pursuant to, and limited by, 5 U.S.C. 552a(k)(5), the NTSB's system of records, which contains the Security Records of NTSB employees, prospective employees, and potential contractors, shall be exempt from disclosure of the material and the NTSB's handling thereof under subsections (d), (e)(1) and (e)(4) (H) and (I) of 5 U.S.C. 552a."
7:7:7.1.2.8.3.0.30.1,7,Agriculture,VIII,A,802,PART 802—OFFICIAL PERFORMANCE AND PROCEDURAL REQUIREMENTS FOR GRAIN WEIGHING EQUIPMENT AND RELATED GRAIN HANDLING SYSTEMS,,,,§ 802.0 Applicability.,AMS,,,"[75 FR 76255, Dec. 8, 2010]","(a) The requirements set forth in this part 802 describe certain specifications, tolerances, and other technical requirements for grain weighing equipment and related grain handling systems used in performing Class X and Class Y weighing services, official inspection services, and commercial services under the Act. All scales used for official grain weight and inspection certification services provided by FGIS must meet applicable requirements contained in the FGIS Weighing Handbook, the General Code, the Scales Code, the Automatic Bulk Weighing Systems Code, and the Weights Code of the 2008 edition of National Institute of Standards and Technology (NIST) Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices” (Handbook 44); and NIST Handbook 105-1 (1990 Edition), “Specifications and Tolerances for Reference Standards and Field Standard Weights and Measures,” (Handbook 105-1). These requirements are confirmed to be met by having National Type Evaluation Program type approval. Scales used for commercial purposes will be required to meet only the applicable requirements of the 2008 edition of the NIST Handbook-44. Pursuant to the provisions of 5 U.S.C. 552(a), with the exception of the Handbook 44 requirements listed in paragraph (b), the materials in Handbooks 44 and 105-1 are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the  Federal Register.  This incorporation by reference was approved by the Director of the Federal Register on March 8, 2011, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The NIST Handbooks are for sale by the National Conference of Weights and Measures (NCWM), 1135 M Street, Suite 110, Lincoln, Nebraska 68508. Information on these materials may be obtained from NCWM by calling 402-434-4880, by E-mailing  nfo@ncwm.net,  or on the Internet at  http://www.nist.gov/owm.

(b) The following Handbook 44 requirements are not incorporated by reference:

Scales (2.20)
 
 S.1.8. Computing Scales
 
 S.1.8.2. Money-Value Computation
 
 S.1.8.3. Customer's Indications
 
 S.1.8.4. Recorded Representations, Point of Sale
 
 S.2.5.2. Jeweler's, Prescription, & Class I & II Scales
 
 S.3.3. Scoop Counterbalance
 
 N.1.3.2. Dairy-Product Test Scales
 
 N.1.5. Discrimination Test (Not adopted for Grain Test Scales only)
 
 N.1.8. Material Tests
 
 N.3.1.2. Interim Approval
 
 N.3.1.3. Enforcement Action For Inaccuracy
 
 N.4. Coupled-in-Motion Railroad Weighing Systems
 
 N.6. Nominal Capacity of Prescription Scales
 
 T.1.2. Postal and Parcel Post Scales
 
 T.2.3. Prescription Scales
 
 T.2.4. Jewelers' Scales (all sections)
 
 T.2.5. Dairy—Product—Test Scales (all sections)
 
 T.N.3.9. Materials Test on Customer—Operated Bulk—Weighing Systems for Recycled Materials
 
 UR.1.4. Grain Test Scales: Value of Scale Divisions
 
 UR.3.1. Recommended Minimum Load
 
 UR.3.1.1. Minimum Load, Grain Dockage
 
 Automatic Bulk Weighing Systems (2.22)
 
 N.1.3. Decreasing-Load Test

S.1.8. Computing Scales

S.1.8.2. Money-Value Computation

S.1.8.3. Customer's Indications

S.1.8.4. Recorded Representations, Point of Sale

S.2.5.2. Jeweler's, Prescription, & Class I & II Scales

S.3.3. Scoop Counterbalance

N.1.3.2. Dairy-Product Test Scales

N.1.5. Discrimination Test (Not adopted for Grain Test Scales only)

N.1.8. Material Tests

N.3.1.2. Interim Approval

N.3.1.3. Enforcement Action For Inaccuracy

N.4. Coupled-in-Motion Railroad Weighing Systems

N.6. Nominal Capacity of Prescription Scales

T.1.2. Postal and Parcel Post Scales

T.2.3. Prescription Scales

T.2.4. Jewelers' Scales (all sections)

T.2.5. Dairy—Product—Test Scales (all sections)

T.N.3.9. Materials Test on Customer—Operated Bulk—Weighing Systems for Recycled Materials

UR.1.4. Grain Test Scales: Value of Scale Divisions

UR.3.1. Recommended Minimum Load

UR.3.1.1. Minimum Load, Grain Dockage

N.1.3. Decreasing-Load Test"
7:7:7.1.2.8.3.0.30.2,7,Agriculture,VIII,A,802,PART 802—OFFICIAL PERFORMANCE AND PROCEDURAL REQUIREMENTS FOR GRAIN WEIGHING EQUIPMENT AND RELATED GRAIN HANDLING SYSTEMS,,,,§ 802.1 Qualified laboratories.,AMS,,,"[51 FR 7052, Feb. 28, 1986, as amended at 54 FR 5925, Feb. 7, 1989]","(a)  Metrology laboratories.  (1) Any State metrology laboratory currently approved by the NBS ongoing certification program having auditing capability is automatically approved by the Service.

(2) Any county or city weights and measures jurisdiction approved by NBS or by their respective NBS-Certified State laboratory as being equipped with appropriate traceable standards and trained staff to provide valid calibration is approved by the Service. The State approval may be documented by a certificate or letter. The jurisdiction must be equipped to provide suitable certification documentation.

(3) Any commercial industrial laboratory primarily involved in the business of sealing and calibrating test weights (standards) will be approved by the Service provided:

(i) It requests written authority to perform tolerance testing of weights used within the Service's program(s) through their approved State jurisdiction. Copies of its request and written reference regarding the State decision shall be provided to the Service. A positive decision by the State will be required as a prerequisite to the Service's granting approval to any commercial laboratory to tolerance test the weights used in testing scales under the jurisdiction of the Service;

(ii) It has NBS traceable standards (through the State) and trained staff to perform calibrations in a manner prescribed by NBS and/or the State;

(iii) It is equipped to provide suitable certification documentation;

(iv) It permits the Service to make onsite visits to laboratory testing space.

(4) Approval of the commercial industrial laboratory will be at the Service's discretion. Once it has obtained approval, the commercial industrial laboratory maintains its site in a manner prescribed by the State and the Service.

(b)  Type evaluation laboratories.  Any State measurement laboratory currently certified by NBS in accordance with its program for the Certification of Capability of State Measurement Laboratories to conduct evaluations under the National Type Evaluation Program is approved by the Service."