12 FAM 030
ACCOUNTABILITY REVIEW BOARD (ARB)
(CT:DS-318; 04-25-2019)
(Office of Origin: M/PRI)
12 FAM 031 GENERAL PROVISIONS
12 FAM 031.1 Objective
(CT:DS-158; 09-17-2010)
The ARB process is a mechanism to foster more effective
security of U.S. missions and personnel abroad by ensuring a thorough and
independent review of security-related incidents. Through its investigations
and recommendations, the Board seeks to determine accountability and promote
and encourage improved security programs and practices. In addition, the ARB
mechanism enhances the integrity of the visa issuing process by determining
accountability in certain instances in which terrorist acts in the United States
are committed by aliens.
12 FAM 031.2 Responsibilities
(CT:DS-318; 04-25-2019)
A Board will be convened for the express purpose of
investigating only that incident or those incidents specified by the
Secretary. A Board will examine the facts and circumstances surrounding the
incident or incidents, and make written
findings in accordance with 12 FAM 035.
12 FAM 031.3 ARB Definitions
(CT:DS-318; 04-25-2019)
Act: The Omnibus Diplomatic
Security and Antiterrorism Act of 1986, as amended.
ARB: Accountability Review
Board.
Board: Accountability Review
Board established under either Title III of the Act (22 U.S.C. 4831) or Section
140(c).
COM: Chief of a U.S. mission.
Committee: The ARB Permanent
Coordinating Committee (ARB/PCC).
Consular officer: Any
individual authorized to issue visas pursuant to Section 101(a)(9) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(9), and the Departments
regulations under 22 CFR 40.1(d).
Days: Calendar days.
DNI: The Director of National
Intelligence.
Department: The Department of
State.
Exclusive representative: A lawyer appearing at
the witnesss expense, or a lawyer who represents solely the interests of the
witness testifying before an ARB. U.S. Government lawyers who are obliged to
represent the interests of their employer agencies are not exclusive
representatives for purposes of these regulations.
Incident: A security-related
incident or a visa incident.
Individual: As defined in
Section 303(a)(1)(B) of the Act (22 U.S.C. 4833(a)(1)(B)).
Party: Any person invited,
subpoenaed, or otherwise required to participate in any investigation, hearing,
or other official activity of a Board.
Records of a Board: Documents
and information, in any form, that are used or produced by a Board and which a
Board believes should be included in its official records.
Secretary: The Secretary of
State.
Section 140(c): Section 140(c)
of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Public
Law 103-236, as amended by Section 1(d) of Public Law 103-415 (October 25,
1994) (8 U.S.C. 1182 note).
Security-related incident: A case of serious injury, loss
of life, or significant destruction of property at or related to a U.S.
government mission abroad, or a case of a serious breach of security involving
intelligence activities of a foreign government directed at a U.S. mission
abroad (other than a facility or installation subject to the control of a U.S.
area combatant commander), and the incident is not clearly unrelated to security.
Visa incident: A terrorist act
causing serious injury, loss of life, or significant destruction of property in
the United States when there is probable cause to believe that an alien
participated in the incident,
and when the alien was issued a visa
contrary to applicable visa lookout procedures established by the Department.
12 FAM 032 ORGANIZATION
12 FAM 032.1 ARB Permanent
Coordinating Committee (ARB/PCC)
(CT:DS-318; 04-25-2019)
a. Purpose: The ARB/PCC will,
as quickly as possible after an incident occurs, review the available facts and
recommend to the Secretary to convene or not convene a Board. (Due to the 1999
revision of the law requiring the Secretary to convene a Board not later than
60 days after the occurrence of an incident, except that such period may be
extended for one additional 60-day period, the ARB/PCC will meet within 30 days
of the incident if enough information is available.) In addition, the ARB/PCC
will meet yearly to review the ARB process, existing policies and procedures, and all past ARB
recommendations, and ensure that any necessary changes are effected.
b. Membership: The ARB/PCC
will be composed of the following members:
(1) The director of the Office of Management Policy,
Rightsizing and Innovation (M/PRI), who will chair the ARB/PCC;
(2) The Assistant Secretary for Diplomatic Security or
designee;
(3) The Assistant Secretary for Intelligence and
Research or designee;
(4) The coordinator for Counterterrorism or designee;
(5) The assistant secretary or designee of the relevant regional bureau(s)
(6) One representative designated by and representing
the DNI; and
(7) The Assistant Secretary for Consular Affairs or designee.
c. Other participants: As a
result of the State-Justice Memorandum of Understanding (MOU) dated September 20,
2001, the Department of Justice has attended PCC
meetings. The Departments Deputy Legal Adviser, director of the Bureau of Medical Services, and
Executive Secretary of the Executive Secretariat, or his/her designees, will attend PCC meetings. Also,
as determined by the chairperson, representatives of other offices and agencies
may be invited to work with the ARB/PCC. Participants
listed in this section do not vote.
d. Security clearances: Members
of the ARB/PCC and other ARB/PCC participants must have the appropriate and
necessary security clearances from the Department of State and, as necessary,
from other departments and agencies before being granted access to classified
information.
e. Incident identification
and vetting process: To identify incidents that warrant convening the
ARB/PCC:
(1) The incumbents of the
following positions are required to notify M/PRI,
the ARB staff office, when they learn of an incident that could involve loss of
life, serious injury, destruction of property, or a case of a serious breach of
security involving intelligence activities of foreign government as described
in the Act (22 U.S.C 4831): members of the ARB/PCC; the relevant Deputy Legal
Adviser; the director of the Bureau of Medical Services; assistant secretaries
of regional bureaus; the Executive Secretary of the Executive Secretariat; the
Under Secretary for Management; and the Under Secretary for Political Affairs.
These individuals or their designees must notify M/PRI of a potentially
qualifying incident as soon as they become aware of it by sending an e-mail to MPRIARBSupport@state.gov and to the director and Deputy Director of M/PRI;
(2) Chiefs of Mission
(COMs), Deputy Chiefs of Mission (DCMs), and principal officers (POs) also must
notify M/PRI when they learn of an
incident that may meet the criteria for an ARB by
sending an e-mail to MPRIARBSupport@state.gov. The Under Secretary for Management will issue an
ALDAC annually reminding post leadership of this responsibility and the method
for notifying M/PRI
(3) Upon receiving
notification of an incident abroad that could involve loss of life, serious injury, or destruction of property, or a case of a serious breach of security involving
intelligence activities of foreign government, as described in the Act
(22 U.S.C. 4831), the M/PRI director, as Chair of the ARB/PCC, will consult
with Bureau of Diplomatic Security (DS), the
Office of the Legal Adviser, and other offices as appropriate, to evaluate
whether the ARB statute criteria apply;
(4) If the incident
appears to meet the statutory criteria for an ARB, M/PRI will convene an
ARB/PCC, allowing enough time for preliminary incident reports to be developed
for consideration by the ARB/PCC;
(5) If the applicability of the ARB statute criteria
is unclear, M/PRI will convene an ARB/PCC to review the incident and make a recommendation;
(6) If the incident
clearly does not meet the statutory
criteria for an ARB, M/PRI, in its capacity as staff office for the ARB
process, will notify ARB/PCC members in writing. M/PRI will provide a summary of the incident and
an explanation as to why the criteria do not apply. Members who disagree with
this decision will have three business days upon their receipt of notice to
request that an ARB/PCC be convened. If such a request is made, M/PRI will
convene a meeting of the ARB/PCC; otherwise, no ARB/PCC will be called;
(7) M/PRI will
log all events involving loss of life, serious injury to personnel, or significant
property damage, noting whether a PCC was convened and the reasons for doing so
or not; and
(8) On a
quarterly basis, the ARB/PCC will notify the Secretary of all incidents that do
not warrant convening the ARB/PCC. Examples of such an incident are property
damage resulting from a security-related incident that does not have a
high-dollar value or a very minor injury resulting from a security-related
incident.
12 FAM 032.2 The Board
(CT:DS-318; 04-25-2019)
a. Membership: See Section
302(a) of the Act, 22 U.S.C. 4832.
b. Background of members:
Members must possess expertise that will contribute to the work of the Board
(e.g., knowledge, experience or training in areas such as foreign affairs, law,
security, embassy construction, intelligence, and other areas appropriate to
the Boards work). In most cases, at least one
member of the Board should have had substantial experience in personnel and
overseas security. In the case of a Board convened pursuant to a visa
incident, at least one Board member should have
had extensive experience as a consular officer and consular manager. Only in
exceptional circumstances should Board members be current employees of the U.S.
Government, unless the individual in question is a re-employed annuitant
(REA). In such latter case, exceptional circumstances are not necessary
in order for the individuals to serve as
Board members.
c. Term of appointment: A
members term will begin upon the convening of the Board by the Secretary and
will coincide with the duration of the Boards mandate.
d. Security clearances:
Members and staff must have the appropriate and necessary security clearances
before being granted access to classified information.
e. Inability to serve: Should
a member be unable to continue serving after appointment, the Secretary may
relieve that person from duty on the Board and appoint a replacement member or,
in the case of the member appointed by the DNI, the DNI may relieve that member
and appoint a replacement.
12 FAM 032.3 ARB Staff
(CT:DS-318; 04-25-2019)
a. ARB staff officer: The
director of the Office of Management Policy, Rightsizing and Innovation (M/PRI)
shall appoint a member of the M/PRI staff to be the ARB staff officer. The ARB
staff officer will:
(1) Oversee the ARB process and ensure that all
policies and procedures relating to the ARB are adequate and up-to-date;
(2) Serve as the institutional memory and primary
point of contact within the Department for ARB matters;
(3) Maintain all permanent files, rules, procedures,
rosters, libraries, etc., for the ARB process, to include documenting all
incidents involving loss of life, injury to personnel, or property damage
regardless of whether the incidents meet the criteria under ARB statute, noting
whether a PCC was convened and the reasons for doing so or not;
(4) Coordinate the implementation process for ARB
recommendations;
(5) Manage the annual ARB/PCC review of all past ARB
recommendations; and
(6) Carry out ARB related staff work for the ARB/PCC.
b. ARB Executive Secretary:
When a Board is convened, M/PRI will name an Executive Secretary to coordinate
and facilitate the work of that Board. The Executive Secretary will normally
be a Senior Foreign Service officer, a retired Senior Foreign Service officer, a Foreign Service officer with the rank of FS-01, or
a civil service employee at the GS-15 level who is recommended by DGHR.
The tenure of the Executive Secretary will coincide with the tenure of the
Board. Typically, the Executive Secretary should
begin work prior to the Boards first meeting in order to prepare documents for
the Boards review and remain active until meeting records are closed out.
c. Experts, consultants and support staff: As
determined by the Board, the Department will provide the necessary experts,
consultants and support staff to enable the Board to carry out its duties
effectively and efficiently. S/ES-EX will provide a full-time dedicated
administrative support coordinator (detailee or REA)
to assist the Executive Secretary of the ARB, as formalized in Administrative
Notice No. 05-02, dated February 22, 2005.
12 FAM 032.4 Assignment, Hiring,
and Contracting Mechanisms
(CT:DS-158; 09-17-2010)
The full-time Administrative Support Coordinator appointed
by S/ES-EX will work with the appropriate offices in the Department such as
S/ES-EX, DGHR, A/OPR, etc., and is responsible for overseeing and coordinating
the mechanisms to assign, hire and/or contract for the personnel and services
required by a Board. The Coordinator will also ensure that all such personnel
receive the necessary security clearances prior to assuming their duties.
12 FAM 032.5 ARB Facilities,
Services, and Supplies
(CT:DS-318; 04-25-2019)
a. As set forth in S/ES-EX Administrative Notice No.
05-02 dated February 22, 2005, S/ES-EX is responsible for providing a Board
with necessary and appropriate office space, equipment, service, passes and
permits, supplies and such other logistical support as a Board may require. In accordance with 12 FAM 034, this includes the ability to record interviews the
Board conducts in the course of its official duties and for the Board members
to be provided transcripts of recorded interviews upon request.
b. S/ES-EX budgets and provides funding for ARB
expenses.
c. The ARB staff officer, as appropriate, coordinates
the needs of a Board with the Administrative Support Coordinator in S/ES-EX and with the ARB Executive Secretary.
12 FAM 033 CONVENING, SELECTING, AND
TERMINATING A BOARD
12 FAM 033.1 Convening a Board
(CT:DS-318; 04-25-2019)
a. Written decision: The Secretary,
in writing, makes the decision to convene a Board and sets forth the names of
the Boards Chairperson and members, the purposes and jurisdiction of the Board
(as established in Section 304 of the Act (22 U.S.C. 4831) or,
as appropriate, Section 140(c)), and its duration. The decision will be
published in the Federal Register, or other similar document, if deemed
appropriate by the Secretary.
b. Deadlines for convening a Board:
The Secretary must convene a Board not later than 60 days after the occurrence
of an incident, except that such 60-day period may be extended for one
additional 60-day period if the Secretary determines that the additional period
is necessary for the convening of the Board.
c. Delays: With respect to breaches of security involving
intelligence activities, the Secretary may delay
the convening of a Board, if, after consultation with the chair of the Select
Committee on Intelligence of the Senate and the chair of the Permanent Select
Committee on Intelligence of the House of Representatives, the Secretary
determines that the establishment of a Board would compromise intelligence
sources or methods. The Secretary must promptly advise the chairs of such
committees of each determination to delay the establishment of a Board.
d. Security-related incidents:
(1) Unless the Secretary
determines the causes of the incident were clearly unrelated to security,
a Board convenes if the following two determinations are made:
(a) That the incident involved serious injury, loss of
life, or significant destruction of property or a serious breach of security
involving intelligence activities of a foreign government; and
(b) That the incident occurred at or related to a U.S.
government mission abroad (other than a facility or installation subject to the
control of a U.S. area combatant commander);
(2) The Secretary of State is not required to convene
a Board in the case of an incident that involves any facility, installation, or
personnel of the Department of Defense (DoD) with respect to which the
Secretary has delegated operational control of security functions abroad to the
Secretary of Defense pursuant to section 106 of the Act (22 U.S.C. 4831). In
any such case, the Secretary of Defense will conduct an appropriate inquiry and
report the findings and recommendations of such inquiry, and the action taken
with respect to such recommendations, to the Secretary of State and Congress.
e. Visa incidents: A Board
will be convened with respect to a visa incident only if the following three
determinations are made:
(1) That the incident involved a terrorist act causing
serious injury, loss of life, or significant destruction of property in the
United States;
(2) That there is probable cause to believe that a
specifically identified alien was a participant in the terrorist act; and
(3) That the alien was issued a visa on or after May
1, 1996; at the time of visa issuance, the aliens name was included in the
Departments Consular Lookout and Support System (CLASS) and that the visa was
issued as a result of a failure by the consular officer to adhere to the
procedures required to be followed by the inclusion of the name in such visa
lookout system.
f. Notification to Congress:
Whenever the Secretary convenes a Board, the Secretary will promptly inform the
chairman of the Committee on Foreign Relations of the Senate and the Speaker of
the House of Representatives:
(1) That a Board has been convened;
(2) The membership of the Board; and
(3) Other appropriate information about the Board.
12 FAM 033.2 Selection,
Appointment, and Compensation of Members
(CT:DS-318; 04-25-2019)
a. Selection: The ARB staff
officer maintains a list of potential members. During the ARB/PCC's yearly
meeting the list will be reviewed and updated. If the ARB/PCC recommends that
the Secretary convene a Board, it will forward a list of potential Board
members to the Secretary for approval. The ARB/PCC coordinates its activities
in this area with the DNIs representative.
b. Appointment: Members
selected by the Secretary and the DNI for appointment to a Board will, as
necessary, be processed for employment purposes by S/ES-EX.
c. Compensation: Members who
are not Federal officers or employees, unless they waive compensation, will be
paid (per the statute) at a rate not to exceed the maximum rate of basic pay
payable for level GS 15, Step 10 of the General Schedule (5 U.S.C. 5332) for
each day (including travel time) during which they are engaged in the actual
performance of Board duties. Members who are Federal officers or employees
shall receive no additional pay for service on a Board. Civil Service annuitants serving as ARB members will
require the approval of a Dual Compensation Waiver in order to receive
compensation for their services. The ARB staff officer and S/ES-EX will coordinate
with HR/Civil Service Human Resource Management (CSHRM) to request such a
waiver prior to the individual beginning work on the ARB.
12 FAM 033.3 Timeframe of a Board
(CT:DS-158; 09-17-2010)
a. Initiating activities: A
Board must begin its work within a reasonable period of time following the
Secretarys decision to convene the Board.
b. Ample time: A Board must be
given ample time to conduct its investigations and write its report.
c. Extension of time: Should
a Board decide that the time allotted for its work is insufficient, it must
apply, in writing, to the Secretary for an extension of time.
d. Termination: A Boards
authority terminates on the date set forth in the Secretarys order convening
the Board, or on a date as is subsequently set by the Secretary.
12 FAM 034 BOARD POWERS AND PROCEDURES
12 FAM 034.1 Powers of a Board and
Chairperson
(CT:DS-280; 10-05-2017)
a. Board powers: the Board has the authority to:
(1) In
accordance with section 303 of the Act, with respect
to any individual:
(a) Administer oaths and affirmations;
(b) Require that depositions be given and
interrogatories be answered; and
(c) Require the attendance and presentation of testimony
and evidence by such individual;
(2) In accordance with section 303 of the Act, with respect
to persons not included under the Acts definition of individual:
(a) Administer oaths and affirmations; and
(b) Require that depositions be given and
interrogatories be answered;
(3) Determine Board procedures for hearings, investigations
and other such activities of the Board;
(4) Issue subpoenas, where necessary and in accordance
with section 303(a)(3) of the Act (22 U.S.C. 4831); and
(5) Make findings and recommendations as provided in section
304 of the Act (22
U.S.C. 4831), or, as appropriate, section 140(c).
b. Powers of the Chairperson:
The Board Chairperson has the authority to:
(1) Regulate the course and conduct of Board
activities, including but not limited to holding hearings and controlling their
course and conduct; and
(2) Designate, in writing, another member to act in
his or her stead in case of temporary absence.
12 FAM 034.2 Board Procedures
12 FAM 034.2-1 Investigations
(CT:DS-318; 04-25-2019)
a. Venue: The Board may
conduct its investigations, including hearings, within the United States or
abroad. When appropriate and cost effective, the Board will make every
reasonable effort to take sworn testimony within the continental United States.
b. Use of investigative personnel:
The Board may use, subject to the concurrence of the sending office and/or
agency, personnel from such entities as the DS or the Office of the Inspector
General to assist its investigative activities.
c. Noninterference with other
authorities: The Department will notify the Department of Justice,
Office of Counterterrorism of any decision by the Secretary to convene an ARB
shortly after such a decision is made. The Board will carry out its activities
in a manner that does not interfere with or compromise the work of duly
authorized authorities, such as law enforcement, security, intelligence or
diplomatic activities, either U.S. or foreign.
d. Clearance requirement abroad:
Prior to undertaking any Board activities outside the United States, the Board
must obtain the concurrence of the COM and, if deemed appropriate by the COM,
of the host government to such activities.
e. Conduct of activities abroad:
Any Board activities undertaken abroad must be conducted in a manner consistent
with local law and custom, as determined by the COM or the Department.
Activities abroad will be closed to the public unless the Board desires they be
open and the COM and the Department
concurs.
12 FAM 034.2-2 Evidence
(CT:DS-39; 08-15-1994)
The Board may accept any evidence determined by the
Chairperson to be relevant and material to the investigation. The Federal
Rules of Evidence are not applicable to the Board.
12 FAM 034.2-3 Witness Rights
(CT:DS-280; 10-05-2017)
a. Representation:
(1) Any person appearing before or meeting with the
Board or a member(s) of the Board or responding to written questions issued by
the Board, whether acting voluntarily or by subpoena and whether sworn or
unsworn, is entitled to be accompanied and advised by an exclusive
representative at the persons expense consistent with 12 FAM 031.3.
Foreign and Civil Service employee witnesses may be represented by the
appropriate representation (e.g., the American Foreign Service
AssociationAFSA). Except to the extent that their presence is required by the
DNI for the purpose of protecting sources and methods, the Board may bar from
ARB proceedings government lawyers who are not the exclusive representatives of
persons appearing before or meeting with the Board;
(2) An employee assigned domestically who is notified
to appear as a witness by the Board will, if the employee so requests, be
granted 72 hours in order to obtain representation. Should the employee desire
additional time, a written request for such time may be made to the
Chairperson; and
(3) An employee assigned abroad who is notified to
appear as a witness by the Board, and who wishes to be represented by someone
other than an exclusive representative, may submit a written request to the
Chairperson, requesting a reasonable amount of time to obtain such
representation. The amount of time granted by the Chairperson will depend on
such factors as the scope of the ARB process, the limits of the employees
expected testimony, and the feasibility of obtaining counsel at that location.
b. Advising:
(1) Witnesses responding to or appearing before the
Board or a member(s) of the Board must be given reasonable written notice of
the proceedings time, place and nature. They must also be advised, in
writing, of the authority under which the proceeding is being conducted and the
purpose(s) to which the information they give may be used. Finally, the
witnesses are to be advised of their legal right to refuse to answer
self-incriminating questions and of their right to have counsel present; and
(2) The Department must notify post employees concerning
their rights in connection with ARB investigations prior to the arrival of the
ARB investigative team at post.
c. Travel expenses:
Subpoenaed witnesses will be paid the same fee and
mileage allowances paid to subpoenaed witnesses in the courts of the United
States.
d. Presentations: Subject to 12 FAM 034.2-2,
a witness has the opportunity to bring to the Boards attention areas of
inquiry, material, and the names of additional potential witnesses.
12 FAM 034.2-4 Confidentiality
and Safeguarding of Classified Information
(CT:DS-217; 10-09-2014)
a. Adopting procedures: (See
22 U.S.C. 4833.) Such procedures must ensure the protection of classified
information and administrative confidentiality of testimony affecting personal
privacy or ongoing criminal investigations. In addition, the Board will take
care to protect Sensitive But Unclassified (SBU) information, such as security
policies and procedures.
b. DNI role: DNI will
establish the level of protection and standards required for intelligence
information, including appointing a representative, as necessary, to attend
Board activities where classified intelligence information might be used.
12 FAM 034.2-5 Classification
Authority
(CT:DS-318; 04-25-2019)
Members of the Board do not have original classification authority.
The director of M/PRI will exercise original classification
authority for materials originating from Board activities.
12 FAM 034.2-6 Records
(CT:DS-217; 10-09-2014)
Records pertaining to Board activities and proceedings will
be kept by the ARB staff officer and the DNI in accordance with 22 U.S.C.
4833(c).
12 FAM 035 FINDINGS AND RECOMMENDATIONS
12 FAM 035.1 Findings
(CT:DS-318; 04-25-2019)
a. Examination: A Board will
examine the facts and circumstances surrounding the security-related incident
or a visa incident.
b. Written submission: In its
report to the Secretary, a Board makes written findings, which may be
classified, as necessary.
c. Dissemination of findings: The board submits its written findings directly to
the Secretary through the M/PRI director, whose role is only to classify the
document as appropriate (the Board members do not have original classification
authority), and L, whose role is to offer legal advice about the report,
including ensuring that the report meets the legal requirements laid out in 22
U.S.C. 4834. The report will initially be
provided solely to the Secretary, who will determine its subsequent
distribution. The Boards written findings are distributed as directed by the
Secretary following the Secretarys receipt of the Boards written findings.
12 FAM 035.2 Recommendations
12 FAM 035.2-1 Program
Recommendations
(CT:DS-318; 04-25-2019)
a. See 22 U.S.C. 4834(b).
b. Confidentiality: In its
program recommendations, the Board takes care to safeguard classified
information and afford such information the required measure of protection. In
addition, any sections of such recommendations affecting personal privacy or
ongoing law enforcement investigations will receive appropriate confidentiality
and other applicable protections necessary under law.
c. Signatures and dissent: Each program
recommendation must be signed by all ARB members
who agree, thus signifying their support for and agreement with the
recommendation. In cases where a member dissents from part or all of such a
recommendation, that member may submit written dissenting views. Any such
dissenting views must be attached to the recommendation and signed by the
dissenting member.
12 FAM 035.2-2 Personnel
Recommendations
(CT:DS-318; 04-25-2019)
a. Requirement: See 22 U.S.C.
4834(c) as amended by FY2017 State Authorities Act sec. 104.
b. Standard for determination:
22 U.S.C. 4834(c) as amended by FY2017 State Authorities Act sec. 104, 3 FAM 4138, 3 FAM 4377, and
3 FAM 4542.
c. Confidentiality: In its
personnel recommendations, the Board will take care to safeguard classified
information and afford such information the required measure of protection. In
addition, any sections of such recommendations affecting personal privacy or
ongoing law enforcement investigations will receive appropriate confidentiality
and other applicable protections necessary as provided by law.
d. Signatures and dissent: Each
personnel recommendation must be signed by all ARB
members who agree, thus signifying their support for and agreement with
the recommendation. In cases where a member dissents from part or all of such
a recommendation, that member may submit written dissenting views. Any such
dissenting views must be attached to the recommendation and signed by the
dissenting member.
e. Notification of the head of
agency or instrumentality: The Board must send a separate notification on each
individual who is the subject of a personnel recommendation to the head of
agency or instrumentality concerned. Such notification must contain, at a
minimum:
(1) The Boards findings of reasonable cause, together
with all relevant evidence supporting such findings;
(2) The Boards recommendations concerning
investigatory or disciplinary action; and
(3) Any dissenting views.
f. Notification of the individual: The Board must
send notification to each individual who is the subject of a personnel
recommendation. Such notification must contain, at a minimum, a covering
statement informing the individual that:
(1) The Board is acting pursuant to Section 304(c) of
the Act (22 U.S.C. 4831) or as the case may be, Section 140(c);
(2) The report does not represent the initiation of
disciplinary or other adverse action against the individual; and
(3) The decision to initiate disciplinary or other
adverse action against the individual rests with the individuals employing
agency, or other competent authority.
12 FAM 036 REPORTS
12 FAM 036.1 Types of Reports
(CT:DS-225; 12-08-2014)
Section 304 of the Act envisages three types of reports
that generally will also be appropriate under Section 140(c):
(1) A Boards report to the Secretary on its findings
and any program recommendations;
(2) The Secretarys report to the Congress on any
program recommendations and the actions taken on them; and
(3) Report(s) to the Congress by the head(s) of the
concerned agency(ies) or instrumentality(ies) on any personnel recommendations.
12 FAM 036.2 The Boards Report to
the Secretary
(CT:DS-318; 04-25-2019)
a. Content: The Boards Report
to the Secretary includes the Boards findings, any program recommendations
and, regardless of agency or instrumentality concerned, any personnel
recommendations. The report must be based upon a consideration of the entire
record of information obtained by the Board.
b. Confidentiality: In its
Report to the Secretary, the Board takes care to safeguard classified
information and afford it the measure of protection required. In addition, sections
of the Report affecting personal privacy or ongoing law enforcement
investigations will receive appropriate confidentiality and other applicable
protections required under law.
c. Signatures and dissent: All
ARB members who
agree must sign the Boards report and thereby signify their support for
and agreement with the report. In cases where a member dissents from any of
the findings or recommendations, that member must
submit written dissenting views. Any such dissenting views must be
attached to the Boards report and signed by the dissenting members.
12 FAM 036.3 Managing ARB
Recommendations
(CT:DS-280; 10-05-2017)
a. Acceptance of recommendations: The Secretary of
State, or his/her designee, will determine what actions should be taken with respect
to the recommendations. The Deputy Secretary of State for Management and
Resources (D-MR), or, in the absence of D-MR,
the Deputy Secretary of State, will oversee the
Departments progress on ARB implementation.
b. Implementation: The Under
Secretary for Management, in coordination with the Under Secretary for
Political Affairs, is responsible for implementation of ARB recommendations.
On behalf of the Secretary and other Department principals, M/PRI will
coordinate and track recommendations and manage the overall implementation
process. M/PRI will report progress on ARB implementation to the Deputy
Secretary for Management and Resources (D-MR), or, in the absence of D-MR, the
Deputy Secretary of State.
c. Annual Implementation Status
Review: The ARB/PCC will review all past recommendations on an annual
basis and provide a report to the Under Secretaries for Political Affairs and
Management, providing the implementation status of all past recommendations,
and noting any trends. The report will also be provided to the Deputy
Secretary and Deputy Secretary of State for Management and Resources.
d. Closing recommendations: The
Under Secretary for Management will determine the status of a recommendation.
12 FAM 036.4 Reports to Congress
(CT:DS-280; 10-05-2017)
a. Program recommendations: Per the ARB statute, the Secretary
will, not later than 90 days after the receipt of a Boards program
recommendations, submit a report to the Congress on each such recommendation
and the action taken with respect to that recommendation. The report shall be
sent to the Speaker of the House and the
President Pro Tempore of the Senate; the Chairperson and Ranking Member of the
Senate and House Appropriations Committees, the Subcommittee on State and
Foreign Operations; and the Chairperson and Ranking Member of the Senate
Foreign Relations Committee and House Foreign Affairs Committee.
b. Personnel recommendations:
The head of the Federal agency or instrumentality receiving a report from a
Board that contains a finding of reasonable cause under Section 304(c) of the
Act (22 U.S.C. 4831) or Section 140(c) will, not later than 30 days
after receiving that finding, transmit to the Congress a report specifying:
(1) The nature of the case and a summary of the
evidence transmitted by the Board; and
(2) The decision by the Federal agency or
instrumentality to take disciplinary or other appropriate action against that
individual or the reasons for deciding not to take disciplinary action or other
action with respect to that individual.
c. Distribution of copies of reports
on personnel recommendations: A copy of each personnel recommendation
report to the Congress will be sent to the Secretary of State and, if
applicable, the head of the agency of said personnel. In addition, a copy of
such a report will be sent to the individual concerned, provided that doing so
does not violate the employing agencys own procedures or regulations.
12 FAM 037 THROUGH 039 UNASSIGNED