48 U.S.C. § 2124 — Powers of Oversight Board

Page 356 TITLE 48—TERRITORIES AND INSULAR POSSESSIONS § 2122 (3) Adoption of rules and regulations of terri- torial government The Oversight Board may incorporate in its bylaws, rules, and procedures under this sub- section such rules and regulations of the terri- torial government as it considers appropriate to enable it to carry out its activities under this chapter with the greatest degree of inde- pendence practicable. (4) Executive session Upon a majority vote of the Oversight Board’s full voting membership, the Oversight Board may conduct its business in an execu- tive session that consists solely of the Over- sight Board’s voting members and any profes- sionals the Oversight Board determines nec- essary and is closed to the public, but only for the business items set forth as part of the vote to convene an executive session. (Pub. L. 114–187, title I, § 101, June 30, 2016, 130 Stat. 553.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b)(2), (d)(1)(A), (2)(A), (e)(4), and (h)(1), (3), was in the original ‘‘this Act’’, meaning Pub. L. 114–187, June 30, 2016, 130 Stat. 549, known as the Puerto Rico Oversight, Management, and Economic Stability Act and also as PROMESA, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. § 2122. Location of Oversight Board The Oversight Board shall have an office in the covered territory and additional offices as it deems necessary. At any time, any department or agency of the United States may provide the Oversight Board use of Federal facilities and equipment on a reimbursable or non-reimburs- able basis and subject to such terms and condi- tions as the head of that department or agency may establish. (Pub. L. 114–187, title I, § 102, June 30, 2016, 130 Stat. 557.) § 2123. Executive Director and staff of Oversight Board (a) Executive Director The Oversight Board shall have an Executive Director who shall be appointed by the Chair with the consent of the Oversight Board. The Executive Director shall be paid at a rate deter- mined by the Oversight Board. (b) Staff With the approval of the Chair, the Executive Director may appoint and fix the pay of addi- tional personnel as the Executive Director con- siders appropriate, except that no individual ap- pointed by the Executive Director may be paid at a rate greater than the rate of pay for the Ex- ecutive Director unless the Oversight Board pro- vides for otherwise. The staff shall include a Re- vitalization Coordinator appointed pursuant to subchapter V of this chapter. Any such per- sonnel may include private citizens, employees of the Federal Government, or employees of the territorial government, provided, however, that the Executive Director may not fix the pay of employees of the Federal Government or the territorial government. (c) Inapplicability of certain employment and procurement laws The Executive Director and staff of the Over- sight Board may be appointed and paid without regard to any provision of the laws of the cov- ered territory or the Federal Government gov- erning appointments and salaries. Any provision of the laws of the covered territory governing procurement shall not apply to the Oversight Board. (d) Staff of Federal agencies Upon request of the Chair, the head of any Federal department or agency may detail, on a reimbursable or nonreimbursable basis, and in accordance with the Intergovernmental Per- sonnel Act of 1970 (5 U.S.C. 3371–3375), any of the personnel of that department or agency to the Oversight Board to assist it in carrying out its duties under this chapter. (e) Staff of territorial government Upon request of the Chair, the head of any de- partment or agency of the covered territory may detail, on a reimbursable or nonreimburs- able basis, any of the personnel of that depart- ment or agency to the Oversight Board to assist it in carrying out its duties under this chapter. (Pub. L. 114–187, title I, § 103, June 30, 2016, 130 Stat. 557.) Editorial Notes REFERENCES IN TEXT Subchapter V of this chapter, referred to in subsec. (b), was in the original ‘‘Title V of this Act’’, meaning title V of Pub. L. 114–187, June 30, 2016, 130 Stat. 596, which is classified principally to subchapter V of this chapter. For complete classification of title V to the Code, see Tables. The Intergovernmental Personnel Act of 1970, re- ferred to in subsec. (d), is Pub. L. 91–648, Jan. 5, 1971, 84 Stat. 1909, which enacted sections 3371 to 3376 of Title 5, Government Organization and Employees, and chap- ter 62 (§ 4701 et seq.) of Title 42, The Public Health and Welfare, amended section 1304 of Title 5 and section 246 of Title 42, repealed sections 1881 to 1888 of Title 7, Ag- riculture, and section 869b of Title 20, Education, and enacted provisions set out as notes under section 3371 of Title 5. For complete classification of this Act to the Code, see Short Title note set out under section 4701 of Title 42 and Tables. This chapter, referred to in subsecs. (d) and (e), was in the original ‘‘this Act’’, meaning Pub. L. 114–187, June 30, 2016, 130 Stat. 549, known as the Puerto Rico Oversight, Management, and Economic Stability Act and also as PROMESA, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. § 2124. Powers of Oversight Board (a) Hearings and sessions The Oversight Board may, for the purpose of carrying out this chapter, hold hearings, sit and act at times and places, take testimony, and re- ceive evidence as the Oversight Board considers appropriate. The Oversight Board may admin- Page 357 TITLE 48—TERRITORIES AND INSULAR POSSESSIONS § 2124 ister oaths or affirmations to witnesses appear- ing before it. (b) Powers of members and agents Any member or agent of the Oversight Board may, if authorized by the Oversight Board, take any action that the Oversight Board is author- ized to take by this section. (c) Obtaining official data (1) From Federal government Notwithstanding sections 552 (commonly known as the Freedom of Information Act), 552a (commonly known as the Privacy Act of 1974), and 552b (commonly known as the Gov- ernment in the Sunshine Act) of title 5, the Oversight Board may secure directly from any department or agency of the United States in- formation necessary to enable it to carry out this chapter, with the approval of the head of that department or agency. (2) From territorial government Notwithstanding any other provision of law, the Oversight Board shall have the right to se- cure copies, whether written or electronic, of such records, documents, information, data, or metadata from the territorial government necessary to enable the Oversight Board to carry out its responsibilities under this chap- ter. At the request of the Oversight Board, the Oversight Board shall be granted direct access to such information systems, records, docu- ments, information, or data as will enable the Oversight Board to carry out its responsibil- ities under this chapter. The head of the enti- ty of the territorial government responsible shall provide the Oversight Board with such information and assistance (including grant- ing the Oversight Board direct access to auto- mated or other information systems) as the Oversight Board requires under this para- graph. (d) Obtaining creditor information (1) Upon request of the Oversight Board, each creditor or organized group of creditors of a cov- ered territory or covered territorial instrumen- tality seeking to participate in voluntary nego- tiations shall provide to the Oversight Board, and the Oversight Board shall make publicly available to any other participant, a statement setting forth— (A) the name and address of the creditor or of each member of an organized group of credi- tors; and (B) the nature and aggregate amount of claims or other economic interests held in re- lation to the issuer as of the later of— (i) the date the creditor acquired the claims or other economic interests or, in the case of an organized group of creditors, the date the group was formed; or (ii) the date the Oversight Board was formed. (2) For purposes of this subsection, an orga- nized group shall mean multiple creditors that are— (A) acting in concert to advance their common interests, including, but not lim- ited to, retaining legal counsel to represent such multiple entities; and (B) not composed entirely of affiliates or insiders of one another. (3) The Oversight Board may request supple- mental statements to be filed by each creditor or organized group of creditors quarterly, or if any fact in the most recently filed statement has changed materially. (e) Gifts, bequests, and devises The Oversight Board may accept, use, and dis- pose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of aiding or facilitating the work of the Over- sight Board. Gifts, bequests, or devises of money and proceeds from sales of other property re- ceived as gifts, bequests, or devises shall be de- posited in such account as the Oversight Board may establish and shall be available for dis- bursement upon order of the Chair, consistent with the Oversight Board’s bylaws, or rules and procedures. All gifts, bequests or devises and the identities of the donors shall be publicly dis- closed by the Oversight Board within 30 days of receipt. (f) Subpoena power (1) In general The Oversight Board may issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, correspondence, memoranda, papers, documents, electronic files, metadata, tapes, and materials of any nature relating to any matter under investigation by the Oversight Board. Jurisdiction to compel the attendance of witnesses and the production of such mate- rials shall be governed by the statute setting forth the scope of personal jurisdiction exer- cised by the covered territory, or in the case of Puerto Rico, 32 L.P.R.A. App. III. R. 4. 7., as amended. (2) Failure to obey a subpoena If a person refuses to obey a subpoena issued under paragraph (1), the Oversight Board may apply to the court of first instance of the cov- ered territory. Any failure to obey the order of the court may be punished by the court in ac- cordance with civil contempt laws of the cov- ered territory. (3) Service of subpoenas The subpoena of the Oversight Board shall be served in the manner provided by the rules of procedure for the courts of the covered ter- ritory, or in the case of Puerto Rico, the Rules of Civil Procedure of Puerto Rico, for sub- poenas issued by the court of first instance of the covered territory. (g) Authority to enter into contracts The Executive Director may enter into such contracts as the Executive Director considers appropriate (subject to the approval of the Chair) consistent with the Oversight Board’s by- laws, rules, and regulations to carry out the Oversight Board’s responsibilities under this chapter. (h) Authority to enforce certain laws of the cov- ered territory The Oversight Board shall ensure the purposes of this chapter are met, including by ensuring Page 358 TITLE 48—TERRITORIES AND INSULAR POSSESSIONS § 2124 1 So in original. Probably should be ‘‘section’’. the prompt enforcement of any applicable laws of the covered territory prohibiting public sec- tor employees from participating in a strike or lockout. In the application of this subsection, with respect to Puerto Rico, the term ‘‘applica- ble laws’’ refers to 3 L.P.R.A. 1451q and 3 L.P.R.A. 1451r, as amended. (i) Voluntary agreement certification (1) In general The Oversight Board shall issue a certifi- cation to a covered territory or covered terri- torial instrumentality if the Oversight Board determines, in its sole discretion, that such covered territory or covered territorial instru- mentality, as applicable, has successfully reached a voluntary agreement with holders of its Bond Claims to restructure such Bond Claims— (A) except as provided in subparagraph (C), if an applicable Fiscal Plan has been cer- tified, in a manner that provides for a sus- tainable level of debt for such covered terri- tory or covered territorial instrumentality, as applicable, and is in conformance with the applicable certified Fiscal Plan; (B) except as provided in subparagraph (C), if an applicable Fiscal Plan has not yet been certified, in a manner that provides, in the Oversight Board’s sole discretion, for a sus- tainable level of debt for such covered terri- tory or covered territorial instrumentality; or (C) notwithstanding subparagraphs (A) and (B), if an applicable Fiscal Plan has not yet been certified and the voluntary agreement is limited solely to an extension of applica- ble principal maturities and interest on Bonds issued by such covered territory or covered territorial instrumentality, as appli- cable, for a period of up to one year during which time no interest will be paid on the Bond Claims affected by the voluntary agreement. (2) Effectiveness The effectiveness of any voluntary agree- ment referred to in paragraph (1) shall be con- ditioned on— (A) the Oversight Board delivering the cer- tification described in paragraph (1); and (B) the agreement of a majority in amount of the Bond Claims of a covered territory or a covered territorial instrumentality that are to be affected by such agreement, pro- vided, however, that such agreement is sole- ly for purposes of serving as a Qualifying Modification pursuant to subsection 1 2231(g) of this title and shall not alter existing legal rights of holders of Bond Claims against such covered territory or covered territorial instrumentality that have not assented to such agreement until an order approving the Qualifying Modification has been entered pursuant to section 2231(m)(1)(D) of this title. (3) Preexisting voluntary agreements Any voluntary agreement that the terri- torial government or any territorial instru- mentality has executed before May 18, 2016, with holders of a majority in amount of Bond Claims that are to be affected by such agree- ment to restructure such Bond Claims shall be deemed to be in conformance with the require- ments of this subsection. (j) Restructuring filings (1) In general Subject to paragraph (3), before taking an action described in paragraph (2) on behalf of a debtor or potential debtor in a case under subchapter III, the Oversight Board must cer- tify the action. (2) Actions described The actions referred to in paragraph (1) are— (A) the filing of a petition; or (B) the submission or modification of a plan of adjustment. (3) Condition for plans of adjustment The Oversight Board may certify a plan of adjustment only if it determines, in its sole discretion, that it is consistent with the appli- cable certified Fiscal Plan. (k) Civil actions to enforce powers The Oversight Board may seek judicial en- forcement of its authority to carry out its re- sponsibilities under this chapter. (l) Penalties (1) Acts prohibited Any officer or employee of the territorial government who prepares, presents, or cer- tifies any information or report for the Over- sight Board or any of its agents that is inten- tionally false or misleading, or, upon learning that any such information is false or mis- leading, fails to immediately advise the Over- sight Board or its agents thereof in writing, shall be subject to prosecution and penalties under any laws of the territory prohibiting the provision of false information to government officials, which in the case of Puerto Rico shall include 33 L.P.R.A. 4889, as amended. (2) Administrative discipline In addition to any other applicable penalty, any officer or employee of the territorial gov- ernment who knowingly and willfully violates paragraph (1) or takes any such action in vio- lation of any valid order of the Oversight Board or fails or refuses to take any action re- quired by any such order, shall be subject to appropriate administrative discipline, includ- ing (when appropriate) suspension from duty without pay or removal from office, by order of the Governor. (3) Report by Governor on disciplinary actions taken In the case of a violation of paragraph (2) by an officer or employee of the territorial gov- ernment, the Governor shall immediately re- port to the Oversight Board all pertinent facts together with a statement of the action taken thereon. (m) Electronic reporting The Oversight Board may, in consultation with the Governor, ensure the prompt and effi- Page 359 TITLE 48—TERRITORIES AND INSULAR POSSESSIONS § 2127 cient payment and administration of taxes through the adoption of electronic reporting, payment and auditing technologies. (n) Administrative support services Upon the request of the Oversight Board, the Administrator of General Services or other ap- propriate Federal agencies shall promptly pro- vide to the Oversight Board, on a reimbursable or non-reimbursable basis, the administrative support services necessary for the Oversight Board to carry out its responsibilities under this chapter. (o) Investigation of disclosure and selling prac- tices The Oversight Board may investigate the dis- closure and selling practices in connection with the purchase of bonds issued by a covered terri- tory for or on behalf of any retail investors in- cluding any underrepresentation of risk for such investors and any relationships or conflicts of interest maintained by such broker, dealer, or investment adviser is as provided in applicable laws and regulations. (p) Findings of any investigation The Oversight Board shall make public the findings of any investigation referenced in sub- section (o). (Pub. L. 114–187, title I, § 104, June 30, 2016, 130 Stat. 558.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (c), (g), (h), (k), and (n), was in the original ‘‘this Act’’, meaning Pub. L. 114–187, June 30, 2016, 130 Stat. 549, known as the Puerto Rico Oversight, Management, and Economic Stability Act and also as PROMESA, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. § 2125. Exemption from liability for claims The Oversight Board, its members, and its em- ployees shall not be liable for any obligation of or claim against the Oversight Board or its members or employees or the territorial govern- ment resulting from actions taken to carry out this chapter. (Pub. L. 114–187, title I, § 105, June 30, 2016, 130 Stat. 561.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 114–187, June 30, 2016, 130 Stat. 549, known as the Puerto Rico Oversight, Manage- ment, and Economic Stability Act and also as PROMESA, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. § 2126. Treatment of actions arising from chapter (a) Jurisdiction Except as provided in section 2124(f)(2) of this title (relating to the issuance of an order enforc- ing a subpoena), and subchapter III (relating to adjustments of debts), any action against the Oversight Board, and any action otherwise aris- ing out of this chapter, in whole or in part, shall be brought in a United States district court for the covered territory or, for any covered terri- tory that does not have a district court, in the United States District Court for the District of Hawaii. (b) Appeal Notwithstanding any other provision of law, any order of a United States district court that is issued pursuant to an action brought under subsection (a) shall be subject to review only pursuant to a notice of appeal to the applicable United States Court of Appeals. (c) Timing of relief Except with respect to any orders entered to remedy constitutional violations, no order of any court granting declaratory or injunctive re- lief against the Oversight Board, including relief permitting or requiring the obligation, bor- rowing, or expenditure of funds, shall take effect during the pendency of the action before such court, during the time appeal may be taken, or (if appeal is taken) during the period before the court has entered its final order disposing of such action. (d) Expedited consideration It shall be the duty of the applicable United States District Court, the applicable United States Court of Appeals, and, as applicable, the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under this chapter. (e) Review of Oversight Board certifications There shall be no jurisdiction in any United States district court to review challenges to the Oversight Board’s certification determinations under this chapter. (Pub. L. 114–187, title I, § 106, June 30, 2016, 130 Stat. 562.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (d), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 114–187, June 30, 2016, 130 Stat. 549, known as the Puerto Rico Oversight, Management, and Economic Stability Act and also as PROMESA, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2101 of this title and Tables. § 2127. Budget and funding for operation of Over- sight Board (a) Submission of budget The Oversight Board shall submit a budget for each fiscal year during which the Oversight Board is in operation, to the President, the House of Representatives Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Governor, and the Legislature. (b) Funding The Oversight Board shall use its powers with respect to the Territory Budget of the covered