[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]
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5
Administrative Personnel
PARTS 700 TO 1199
Revised as of January 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
As of January 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records Administration
as a Special Edition of
the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 5:
Chapter I--Office of Personnel Management................. 3
Finding Aids:
Table of CFR Titles and Chapters.......................... 505
Alphabetical List of Agencies Appearing in the CFR........ 521
Redesignation Table....................................... 531
List of CFR Sections Affected............................. 533
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 5 CFR 715.201 refers to title 5, part
715, section 201.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
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Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
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Raymond A. Mosley,
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January 1, 1998.
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THIS TITLE
Title 5--Administrative Personnel is composed of three volumes. The
parts in these volumes are arranged in the following order: parts 1-699,
700-1199 and part 1200-end. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 1998.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 700-1199 and part 1200-End.
For this volume, Ruth Reedy Green was the Chief Editor. The Code of
Federal Regulations is published under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
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TITLE 5--ADMINISTRATIVE PERSONNEL
(This book contains parts 700 to 1199)
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Note: Title 5 of the United States Code was revised and enacted into
positive law by Pub. L. 89-554, Sept. 6, 1966. New citations for
obsolete references to sections of 5 U.S.C. appearing in this volume may
be found in a redesignation table under Title 5, Government Organization
and Employees, United States Code.
Part
Chapter i--Office of Personnel Management (Continued)....... 715
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CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (Continued)
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SUBCHAPTER B--CIVIL SERVICE REGULATIONS--CONTINUED
Part Page
715 Nondisciplinary separations, demotions, and
furloughs............................... 5
720 Affirmative Employment Programs............. 5
723 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Office of
Personnel Management.................... 16
731 Suitability................................. 22
732 National security positions................. 27
733 Political activity--Federal employees
residing in designated localities....... 29
734 Political activities of Federal employees... 31
735 Employee responsibilities and conduct....... 47
736 Personnel investigations.................... 48
752 Adverse actions............................. 50
754
[Reserved]
771 Agency administrative grievance system...... 61
772 Interim relief.............................. 61
792 Federal employees' health and counseling
programs................................ 61
831 Retirement.................................. 63
835 Debt collection............................. 154
837 Reemployment of annuitants.................. 156
838 Court orders affecting retirement benefits.. 169
841 Federal Employees Retirement System--General
Administration.......................... 221
842 Federal Employees Retirement System--basic
annuity................................. 243
843 Federal Employees Retirement System--death
benefits and employee refunds........... 280
844 Federal Employees' Retirement System--
Disability Retirement................... 295
845 Federal Employees Retirement System--debt
collection.............................. 303
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846 Federal Employees Retirement System--
electing coverage....................... 314
847 Elections of retirement coverage by current
and former employees of nonappropriated
fund instrumentalities.................. 323
870 Federal employees' group life insurance
program................................. 336
890 Federal Employees Health Benefits Program... 362
891 Retired Federal employees health benefits... 419
900 Intergovernmental Personnel Act programs.... 428
911 Procedures for States and localities to
request indemnification................. 446
930 Programs for specific positions and
examinations (miscellaneous)............ 448
950 Solicitation of Federal civilian and
uniformed service personnel for
contributions to private voluntary
organizations........................... 461
960 Federal Executive Boards.................... 480
970 Governmentwide debarment and suspension
(nonprocurement)........................ 483
990 General and miscellaneous................... 497
SUBCHAPTER C--REGULATIONS GOVERNING EMPLOYEES OF THE OFFICE OF PERSONNEL MANAGEMENT
1001 Employee responsibilities and conduct....... 501
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SUBCHAPTER B--CIVIL SERVICE REGULATIONS
PART 715--NONDISCIPLINARY SEPARATIONS, DEMOTIONS, AND FURLOUGHS--Table of Contents
Subpart A--[Reserved]
Subpart B--Voluntary Separations
Sec.
715.201 Applicability.
715.202 Resignation.
Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306.
Subpart A--[Reserved]
Subpart B--Voluntary Separations
Sec. 715.201 Applicability.
This subpart applies to separation actions requested by employees in
the executive departments and independent establishments of the Federal
Government, including Government-owned or controlled corporations, and
in those portions of the legislative and judicial branches of the
Federal Government and the government of the District of Columbia having
positions in the competitive service.
[33 FR 12482, Sept. 4, 1968]
Sec. 715.202 Resignation.
(a) General. An employee is free to resign at any time, to set the
effective date of his resignation, and to have his reasons for resigning
entered in his official records.
(b) Withdrawal of resignation. An agency may permit an employee to
withdraw his resignation at any time before it has become effective. An
agency may decline a request to withdraw a resignation before its
effective date only when the agency has a valid reason and explains that
reason to the employee. A valid reason includes, but is not limited to,
administrative disruption or the hiring or commitment to hire a
replacement. Avoidance of adverse action proceedings is not a valid
reason.
[33 FR 12482, Sept. 4, 1968, as amended at 36 FR 9765, May 28, 1971; 38
FR 18446, July 11, 1973; 38 FR 26601, Sept. 24, 1973]
PART 720--AFFIRMATIVE EMPLOYMENT PROGRAMS--Table of Contents
Subpart A--Principal Statutory Requirements
Sec.
720.101 Federal Equal Opportunity Recruitment Program.
Subpart B--Federal Equal Opportunity Recruitment Program
720.201 Regulatory requirements.
720.202 Definitions.
720.203 Responsibilities of the Office of Personnel Management.
720.204 Agency programs.
720.205 Agency plans.
720.206 Selection guidelines.
720.207 Reports.
Subpart C--Disabled Veterans Affirmative Action Program
720.301 Purpose and authority.
720.302 Definition.
720.303 Agency programs.
720.304 Agency plans.
720.305 Agency accomplishment reports.
720.306 Responsibilities of the Office of Personnel Management.
720.307 Interagency Report Clearance.
Subparts D-I--[Reserved]
Subpart J--Equal Opportunity Without Regard to Politics or Marital
Status
720.901 Equal opportunity without regard to politics or marital status.
Appendix to Part 720--Guidelines for the Development of a Federal
Recruitment Program to Implement 5 U.S.C. Section 7201, As
Amended
Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e, unless otherwise noted.
Source: 44 FR 22031, Apr. 13, 1979, unless otherwise noted.
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Subpart A--Principal Statutory Requirements
Sec. 720.101 Federal Equal Opportunity Recruitment Program.
This section incorporates the statutory requirements for
establishing and conducting an equal opportunity recruitment program
consistent with law within the Federal civil service. The policy in 5
U.S.C. 7201(b) reads as follows: ``It is the policy of the United States
to insure equal employment opportunities for employees without
discrimination because of race, color, religion, sex, or national
origin. The President shall use his existing authority to carry out this
policy.'' 5 U.S.C. 7201(c) requires under regulations prescribed by the
Office of Personnel Management:
``(1) That each Executive agency conduct a continuing program for
the recruitment of members of minorities for positions in the agency to
carry out the [anti-discrimination] policy set forth in subsection (b)
in a manner designed to eliminate underrepresentation of minorities in
the various categories of civil service employment within the Federal
service, with special efforts directed at recruiting in minority
communities, in educational institutions, and from other sources from
which minorities can be recruited; and
``(2) That the Office conduct a continuing program of--
``(A) Assistance to agencies in carrying out programs under
paragraph (1) of this subsection; and
``(B) Evaluation and oversight of such recruitment programs to
determine their effectiveness in eliminating such minority
underrepresentation.''
This section and all implementing guidance shall be interpreted
consistent with title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000c et seq.
[44 FR 22031, Apr. 13, 1979, as amended at 48 FR 193, Jan. 4, 1983]
Subpart B--Federal Equal Opportunity Recruitment Program
Sec. 720.201 Regulatory requirements.
This subpart contains the regulations of the Office of Personnel
Management which implement the above provisions of title 5, United
States Code, and are prescribed by the Office under authority of 5
U.S.C. 7201.
Sec. 720.202 Definitions.
For the purposes of this subpart:
(a) Underrepresentation means a situation in which the number of
women or members of a minority group within a category of civil service
employment constitutes a lower percentage of the total number of
employees within the employment category than the percentage women or
the minority constitutes within the civilian labor force of the United
States, in accordance with Sec. 720.205 (c) and (d).
(b) Category of civil service employment means such groupings of
Federal jobs by grades and/or occupations as the Office of Personnel
Management deems appropriate within the General Schedule and the
prevailing wage systems.
(c) Minority refers only to those groups classified as ``minority''
for the purpose of data collection by the Office of Personnel Management
and the Equal Employment Opportunity Commission in furtherance of
Federal equal employment opportunity policies. The term, ``women,''
includes nonminority as well as minority women.
(d) Civilian labor force (CLF) includes all persons 16 years of age
and over, except those in the armed forces, who are employed or who are
unemployed and seeking work. CLF data are defined by the Bureau of the
Census and the Bureau of Labor Statistics and are reported in the most
recent decennial or mid-decade census, or current population survey,
under title 13 of the United States Code or any other reliable
statistical study.
(e) Recruitment means the total process by which the Federal
Government and the Federal agencies locate, identify and assist in the
employment of qualified applicants from underrepresented groups for job
openings in categories of employment where underrepresentation has been
determined. It includes both innovative internal and external
recruitment actions. It is also intended to cover processes designed to
prepare qualifiable applicants (those who have the potential but do not
presently meet valid qualification requirements) for such job openings
through
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programs of training, work experience or both.
(f) Applicant pool means all types of listings from which selections
may be made, including (but not limited to) promotion lists, competitive
certificates and inventories of eligibles, applicant supply files, and
lists of eligibles for certain noncompetitive appointments.
Sec. 720.203 Responsibilities of the Office of Personnel Management.
(a) The Office of Personnel Management will provide appropriate data
to assist Federal agencies in making determinations of
underrepresentation. The process for making such determinations is
described in sections II and III (c) of the ``Guidelines for the
Development of a Federal Recruitment Program to Implement 5 U.S.C. 7201,
as amended'' (See appendix to this part). The Office will develop and
publish more specific criteria for statistical measurements to be used
by individual agencies, and will develop further guidance on--
(1) Agency employment statistics and civilian labor force statistics
to be used in making determinations of underrepresentation, on a
national, regional or other geographic basis as appropriate;
(2) Groupings of grades and/or other occupational categories to be
used in implementing agency programs;
(3) Occupational categories and job series for which expanded
external recruitment efforts are most appropriate, and those for which
expanded and innovative internal recruitment is appropriate; and
(4) Other factors which may be considered by the agency, in
consultation with Office of Personnel Management, to make determinations
of underrepresentation and to develop recruitment programs focused on
specific occupational categories.
(b) The Office will assist agencies in carrying out their programs
by--
(1) Identifying major recruitment sources of women and members of
minority groups and providing guidance on internal and external
recruitment activities directed toward the solution of specific
underrepresentation problem;
(2) Supplementing agency recruitment efforts, utilizing existing
networks for dissemination of job information, and involving the
participation of minority group and women's organizations where
practicable;
(3) Examining existing Federal personnel procedures to identify
those which (i) may serve as impediments to innovative internal and
external recruitment and (ii) are within the administrative control of
the Office or the Federal agencies;
(4) Determining whether applicant pools used in filling jobs in a
category of employment where underrepresentation exists include
sufficient candidates from any underrepresentated groups, except where
the agency controls such pools (see Sec. 720.204(c));
(5) Providing such other support, as the Office deems appropriate.
(c) The Office will monitor and, in conjunction with the personnel
management evaluation program of the Office, evaluate agency programs to
determine their effectiveness in eliminating underrrepresentation.
(d) The Office will work with agencies to develop effective
mechanisms for providing information on Federal job opportunities
targeted to reach candidates from underrepresented groups.
(e) The Office will conduct a continuing program of guidance and
instruction to supplement these regulations.
(f) The Office will coordinate further activities to implement equal
opportunity recruitment programs under this subpart with the Equal
Employment Opportunity Commission consistent with law, Executive Order
12067, and Reorganization Plan No. 1 of 1978.
Sec. 720.204 Agency programs.
(a) Each Executive agency having positions in the pay systems
covered by this program must conduct a continuing program for the
recruitment of minorities and women for positions in the agency and its
components to carry out the policy of the United States to insure equal
employment opportunities without discrimination because of race, color,
religion, sex or national origin. The head of each agency must
specifically assign responsibility for program implementation to an
appropriate
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agency official. All agency officials who have responsibility for the
program will be evaluated on their effectiveness in carrying it out as
part of their periodic performance appraisals.
(b) Programs established under this subpart must be designed to
cover recruitment for all positions in pay plans covered by this program
including part-time and temporary positions.
(c) Where an agency or the Office of Personnel Management has
determined that an applicant pool does not adequately provide for
consideration of candidates from any underrepresented group, the agency
or agency component must take one or more of the following actions:
(1) Expand or otherwise redirect their recruitment activities in
ways designed to increase the number of candidates from underrepresented
groups in that applicant pool;
(2) Use selection methods involving other applicant pools which
include sufficient numbers of members of underrepresented groups;
(3) Notify the office responsible for administering that applicant
pool, and request its reopening of application receipt in support of
expanded recruitment activities or certifying from equivalent registers
existing in other geographic areas; and/or
(4) Take such other action consistent with law which will contribute
to the elimination of underrepresentation in the category of employment
involved.
(d) Agencies must notify and seek advice and assistance from the
Office of Personnel Management in cases where their equal opportunity
recruitment programs are not making measurable progress in eliminating
identified underrepresentation in the agency work force.
Sec. 720.205 Agency plans.
(a) Each agency must have an up-to-date equal opportunity
recruitment program plan covering recruitment for positions at various
organizational levels and geographic locations within the agency. Such
plans must be available for review in appropriate offices of the agency
and must be submitted to the Office of Personnel Management on request.
In accordance with agreement reached between the Office and the Equal
Employment Opportunity Commission, such plans must be incorporated in
the agency's equal employment opportunity plans required under section
717 of the Civil Rights Act of 1964, as amended, pursuant to regulations
and instructions of the Commission, provided they are separable parts of
those plans for purposes of review by and submission to the Office of
Personnel Management. Agency organizational and geographical components
which are required to develop and submit Equal Employment Opportunity
plans, under instructions issued by the Equal Employment Opportunity
Commission, must also have up-to-date special recruitment program plans.
On a determination by the Office of Personnel Management, in
consultation with EEOC, that additional component plans are needed to
implement an agency's program effectively, the Office will instruct the
agency to develop additional plans. Agencies must comply with such
instructions.
(b) Agency plans must include annual specific determinations of
underrepresentation for each group and must be accompanied by
quantifiable indices by which progress toward eliminating
underrepresentation can be measured.
(c) Where an agency or agency component is located in a geographical
area where the percentage of underrepresented groups in the area
civilian labor force is higher than their percentage in the national
labor force, the agency or component must base its plans on the higher
level of representation in the relevant civilian labor force.
(d) Where an agency or agency component is located in a geographical
area where participation of a particular underrepresented group is
significantly lower than its participation in the national labor force,
the agency or component may, in consultation with the Office of
Personnel Management, use the lower percentage in determining
underrepresentation. An agency may not use a figure lower than the
relevant regional or nationwide labor force percentage where recruitment
on a regional or nationwide basis is feasible for particular categories
of employment. Factors such as size of the agency or unit, nature of
jobs and their
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wage or pay scale may be considered in focusing recruitment for various
job categories.
(e) In addition to the underrepresentation determinations described
in paragraphs (b), (c) and (d) of this section, agency plans must, at a
minimum, include:
(1) An assessment of grades or job categories and numbers of jobs in
such categories expected to be filled in the current year, and on a
longer term basis (based on anticipated turnover, expansion, hiring
limits and other relevant factors) identification of those occupational
categories and positions suitable for external recruitment, and
description of special targeted recruitment programs for such jobs and
positions;
(2) A similar assessment for job categories and positions likely to
be filled by recruitment from within the agency and/or the Federal civil
service system and a description of recruitment programs developed to
increase minority and female candidates from internal sources for such
positions;
(3) A further assessment of internal availability of candidates from
underrepresentated groups for higher job progressions by identifying
job-related skills, knowledges and abilities which may be obtained at
lower levels in the same or similar occupational series, or through
other experience;
(4) A description of methods the agency intends to use to locate and
develop minority and female candidates for each category of
underrepresentation and an indication of how such methods differ from
and expand upon the recruitment activities of the agency prior to
establishment of the special recruitment program or the last revision to
the agency's plans;
(5) A description of specific, special efforts planned by the agency
(or agency component) to recruit in communities, educational
institutions, and other likely sources of qualified minority and female
candidates;
(6) A description of efforts which will be undertaken by the agency
to identify jobs which can be redesigned so as to improve opportunities
for minorities and women, including jobs requiring bilingual or
bicultural capabilities or not requiring English fluency.
(7) A list of priorities for special recruitment program activities
based on agency identification of:
(i) Immediate and longer range job openings for each occupational/
grade-level grouping for which underrepresentation has been determined;
(ii) Hiring authorities which may be used to fill such jobs;
(iii) The possible impact of its actions on underrepresentation.
(8) Identification of training and job development programs the
agency will use to provide skills, knowledge and abilities to qualify
increased numbers of minorities and women for occupational series and
grade levels where they are significantly underrepresented.
(9) Identification of problems for which the assistance of the
Office of Personnel Management is needed and will be requested.
(f) Equal opportunity recruitment program plans must be consistent
with agency Upward Mobility program plans and should be developed with
full consideration of the agency's overall recruiting and staffing
planning objectives.
(g) All plans required under this subpart must be developed not
later than October 1, 1979.
[44 FR 22031, Apr. 13, 1979, as amended at 44 FR 33046, June 8, 1979]
Sec. 720.206 Selection guidelines.
This subpart sets forth requirements for a recruitment program, not
a selection program. Nevertheless, agencies are advised that all
selection processes including job qualifications, personnel procedures
and criteria must be consistent with the Uniform Guidelines on Employee
Selection Procedures (43 FR 38290; August 25, 1978).
Sec. 720.207 Reports.
(a) Not later than November 1 of each year, agencies must submit an
annual report on their equal opportunity recruitment program to the
Office of Personnel Management, in a form prescribed by the Office. The
Office may require submission of any additional reports it considers
necessary in carrying out its responsibilities under this subpart.
[[Page 10]]
(b) The Office will report to Congress on the implementation and
operation of the program on a Governmentwide basis not later than
January 31 of each year, as required by law. Such reports will include
assessments of agencies progress, or lack of progress, in meeting the
objectives of the program.
Subpart C--Disabled Veterans Affirmative Action Program
Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e; 38 U.S.C. 101(2),
2011(3), 2014; 5 U.S.C. 3112; 29 U.S.C. 791(b).
Source: 48 FR 193, Jan. 4, 1983, unless otherwise noted.
Sec. 720.301 Purpose and authority.
This subpart sets forth requirements for agency disabled veteran
affirmative action programs (DVAAPs) designed to promote Federal
employment and advancement opportunities for qualified disabled
veterans. The regulations in this subpart are prescribed pursuant to
responsibilities assigned to the Office of Personnel Management (OPM)
under section 403 of the Vietnam Era Veterans Readjustment Assistance
Act of 1974, as amended (38 U.S.C. 2014), and section 307 of the Civil
Service Reform Act of 1978 (5 U.S.C. 3112).
Sec. 720.302 Definition.
As used in this subpart, the terms veteran and disabled veteran have
the meanings given to these terms in title 38 of the United States Code.
Sec. 720.303 Agency programs.
(a) Continuing Programs. Each Department, agency, and
instrumentality in the executive branch, including the U.S. Postal
Service and the Postal Rate Commission, shall conduct a continuing
affirmative program for the recruitment, hiring, placement, and
advancement of disabled veterans.
(b) Program Responsibility. The head of each agency shall assign
overall program responsibility to an appropriate agency official. The
official so designated shall be at a high enough level to ensure
effective program administration and the devotion of adequate resources
to the program.
(c) Problem Analysis.
(1) Annually, OPM will provide appropriate data on the employment of
disabled veterans to each agency participating in the Central Personnel
Data File (CPDF). These data will be taken from CPDF. For DVAAP
purposes, CPDF data are considered to be the offical record of the
status of disabled veteran employment within each participating agency.
Each participating agency is responsible for assuring that such records
are timely, accurate, and complete.
(2) CPDF data must be analyzed by participating agencies to identify
problem areas and deficiencies in the employment and advancement of
disabled veterans. (OPM will establish with each agency not
participating in CPDF, the nature and extent of data to be used in
identifying problems and deficiencies.) Based on this analysis, agencies
shall develop methods to improve the recruitment, hiring, placement, and
advancement of disabled veterans, or revise or redirect existing
methods, as necessary. These methods must then be translated into action
items.
Sec. 720.304 Agency plan.
(a) Plan Development. As part of the affirmative action plan it
prepares pursuant to section 501(b) of the Rehabilitation Act of 1973
(29 U.S.C. 791 (b)) (``Section 501(b) Plan''), each Department, agency,
or instrumentality in the executive branch must have an up-to-date
affirmative action plan for the employment and advancement of disabled
veterans.
(1) Each agency must review its plan on an annual basis, together
with its accomplishments for the previous fiscal year, updated
employment data, and any changes in agency mission or structure, and
update the plan as necessary. Agency operating components and field
installations required to develop separate plans under paragraph (b) of
this section, below, must perform the same type of annual review and
update of their plans.
(2) Plans shall cover a time period of not less than one year and
may cover a longer period if concurrent with the agency's Section 501(b)
Plan. Each plan must specify the period of time it covers.
[[Page 11]]
(3) Initial plans for fiscal year 1983 required under this subpart
must be developed by January 30, 1983 and must be in effect on that day.
(b) Plan Coverage.
(1) Each agency must have an agencywide plan covering all of its
operating components and field installations. Agencywide plans shall
include instructions assigning specific responsibilities on affirmative
actions to be taken by the agency's various operating components and
field installations to promote the employment and advancement of
disabled veterans. OPM must be informed when headquarters offices
require plans at the field or installation level.
(2) Agency operating components and field installations must have a
copy of the plan covering them, and must implement their
responsibilities under it. OPM may require operating components and
field installations to develop separate plans in accordance with program
guidance and/or instructions.
(c) Plan Submission. Affirmative action plans developed under this
section shall be submitted to OPM upon request. The Office of Personnel
Management will review a selection of agency plans each fiscal year.
(d) Plan Certification. Each agency must certify to OPM by December
1 of each year that it has an up-to-date plan as required by this
section. This certification must indicate the date the agency's most
recent plan was effective or was last amended.
(e) Plan Content. Disabled veteran affirmative action plans shall,
at a minimum, contain:
(1) A statement of the agency's policy with regard to the employment
and advancement of disabled veterans, especially those who are 30
percent or more disabled.
(2) The name and title of the official assigned overall
responsibility for development and implementation of the action plan.
(3) An assessment of the current status of disabled veteran
employment within the agency, with emphasis on those veterans who are 30
percent or more disabled.
(4) A description of recruiting methods which will be used to seek
out disabled veteran applicants, including special steps to be taken to
recruit veterans who are 30 percent or more disabled.
(5) A description of how the agency will provide or improve internal
advancement opportunities for disabled veterans.
(6) A description of how the agency will inform its operating
components and field installations, on a regular basis, of their
responsibilities for employing and advancing disabled veterans.
(7) A description of how the agency will monitor, review, and
evaluate its planned efforts, including implementation at operating
component and field installation levels during the period covered by the
plan.
Sec. 720.305 Agency accomplishment reports.
(a) Not later than December 1 of each year, agencies must submit an
annual accomplishment report on their disabled veterans affirmative
action program to the Office of Personnel Management, covering the
previous fiscal year.
(b) Agency annual accomplishment reports must describe:
(1) Methods used to recruit and employ disabled veterans, especially
those who are 30 percent or more disabled.
(2) Methods used to provide or improve internal advancement
opportunities for disabled veterans.
(3) A description of how the activities of major operating
components and field installations were monitored, reviewed, and
evaluated.
(4) An explanation of the agency's progress in implementing its
affirmative action plan during the fiscal year. Where progress has not
been shown, the report will cite reasons for the lack of progress, along
with specific plans for overcoming cited obstacles to progress.
Sec. 720.306 Responsibilities of The Office of Personnel Management
(a) Program Review. OPM will monitor agency program implementation
through review of agency plans, direct agency contact, review of
employment data, and through other appropriate means. As it deems
appropriate, OPM
[[Page 12]]
will conduct onsite evaluations of program effectiveness, both at agency
headquarters and at field installations or operating components.
(b) Technical Assistance. The Office of Personnel Management will
provide technical assistance, guidance, instructions, data, and other
information as appropriate to supplement and support agency programs for
disabled veterans, through the Federal Personnel Manual (FPM).
(c) Semiannual Reports. As provided by 38 U.S.C. 2014(d), OPM will,
on at least a semiannual basis, publish reports on Government-wide
progress in implementing affirmative action programs for disabled
veterans.
(d) Report to Congress. As required by 38 U.S.C. 2014(e), OPM will
report to Congress each year on the implementation and progress of the
program. These reports will include specific assessments of agency
progress or lack of progress in meeting the objectives of the program.
Sec. 720.307 Interagency report clearance.
The reports contained in this regulation have been cleared in
accordance with FPMR 101-11.11 and assigned interagency report control
number 0305-OPM-AN.
Subparts D-I--[Reserved]
Subpart J--Equal Opportunity Without Regard to Politics or Marital
Status
Sec. 720.901 Equal opportunity without regard to politics or marital status.
(a) In appointments and position changes. In determining the merit
and fitness of a person for competitive appointment or appointment by
noncompetitive action to a position in the competitive service, an
appointing officer shall not discriminate on the basis of the person's
political affiliations, except when required by statute, or on the basis
of marital status
(b) In adverse actions and termination of probationers. An agency
may not take an adverse action against an employee covered by part 752
of this chapter, not effect the termination of a probationer under part
315 of this chapter, (1) for political reasons, except when required by
statute, or (2) because of marital status.
(5 U.S.C. 2301, 2302, 7202, 7203, 7204)
[44 FR 48149, Aug. 17, 1979]
Appendix to Part 720--Guidelines for the Development of a Federal
Recruitment Program to Implement 5 U.S.C. Section 7201, as Amended
1
---------------------------------------------------------------------------
1 This section originally was section 701(b) (2nd Proviso) of
the Civil Rights Act of 1964 (Pub. L. 88-352, July 2, 1964), codified as
5 U.S.C. 7151. Section 7151 was further amended by section 310 of the
Civil Service Reform Act of 1978. This Act also redesignated section
7151 as section 7201, effective January 11, 1979. (Sec. 703(a)(1) of the
Act.)
---------------------------------------------------------------------------
I. Background Information. A. In 1964 the Congress adopted a basic
anti-discrimination policy for Federal employment, stating:
It is the policy of the United States to insure equal employment
opportunities for employees without discrimination because of race,
color, religion, sex or national origin. [5 U.S.C. 7151]2
---------------------------------------------------------------------------
2 Ibid.
---------------------------------------------------------------------------
In 1978, Congress reaffirmed and amended this policy as part of the
Civil Service Reform Act of 1978 [Sec. 310 of Pub. L. 95-454], requiring
immediate development of a recruitment program designed to eliminate
underrepresentation of minority groups in specific Federal job
categories. Section 310 directs the Equal Employment Opportunity
Commission:
1. To establish Guidelines proposed to be used for a program
designed to eliminate such underrepresentation;
2. To make, in consultation with OPM, initial determinations of
underrepresentation which are proposed to be used in this program; and
3. To transmit the determinations made under (2) above to the
Executive Agencies, the Office of Personnel Management and the Congress,
within 60 days of enactment.
The Office of Personnel Management (OPM)3 is directed by
this amendment:
---------------------------------------------------------------------------
3 This Office was created by Reorganization Plan No. 2,
issued pursuant to 5 U.S.C. 901 et seq. It will assume personnel
management functions of the present Office of Personnel Management on
January 1, 1979.
---------------------------------------------------------------------------
1. To issue regulations to implement a program under EEOC Guidelines
within 180 days after enactment, which shall provide that Executive
agencies conduct continuing recruitment programs to carry out the anti-
discrimination policy in a manner designed
[[Page 13]]
to eliminate underrepresentation in identified categories of civil
service;
2. To provide continuing assistance to Federal agencies in carrying
out such programs;
3. To conduct a continuing program of evaluation and oversight to
determine the effectiveness of such programs;
4. To establish occupational, professional and other groupings
within which appropriate recruitment will occur, based upon the
determinations of underrepresentation pursuant to these Guidelines; and
5. To report annually to the Congress on this program, not later
than January 31 of each year.
Congress further directed that the recruitment program must be
administered consistent with provisions of Reorganization Plan No. 1 of
1978.4
---------------------------------------------------------------------------
4 Conference Report on Civil Service Reform Act of 1978, No.
95-1272, p. 145.
---------------------------------------------------------------------------
B. In framing these Guidelines and making its initial determinations
of underrepresentation, the Equal Employment Opportunity Commission
(Commission) is acting pursuant to its obligations and authority under 5
U.S.C. 7201, as amended; Section 717 of title VII of the Civil Rights
Act of 1964, as amended; Reorganization Plan No. 1 of 1978 (issued
pursuant to 5 U.S.C. 901 et seq.) and Executive Order 12067, issued
under this Plan (43 FR 28967, June 30, 1978). This Commission must
develop and/or ensure the development of uniform, coherent and effective
standards for administration and enforcement of all Federal anti-
discrimination and equal employment opportunity laws, policies and
programs, and to ensure the elimination of duplication and inconsistency
in such programs.
C. A review of the legislative history of Federal equal employment
opportunity policy provides further guidance on the scope and nature of
determinations and guidelines to be issued for this program.
The basic policy statement on Federal equal employment policy
enacted by the Congress in 1964 (5 U.S.C. 7151, redesignated as section
7201) gave the President authority for implementation. Executive Order
11246 (1966), expanded and superseded by Executive Order 11478 (1969)
with respect to Federal employment, required Federal agencies to develop
affirmative action programs designed to eliminate discrimination and
assure equal employment opportunity.
In 1972, Congress found that serious discrimination persisted in
Federal employment. It found that minorities and women were
significantly absent at higher levels in Federal employment, and
severely underrepresented in some Federal agencies and in some
geographic areas where they constituted significant proportions of the
population. After a detailed review of Federal employment practices and
statistics, the Congress concluded that:
The disproportionate distribution of minorities and women throughout
the Federal bureaucracy and their exclusion from higher level policy-
making and supervisory positions indicates the government's failure to
pursue its policy of equal employment opportunity.5
---------------------------------------------------------------------------
5 Legislative History of the Equal Employment Opportunity Act
of 1972, p. 83. See pp. 82-86 and 421-425 for Congressional Findings.
---------------------------------------------------------------------------
Congress found that this exclusion resulted from overt and
``systemic'' discriminatory practices.
These findings, among others, led Congress to extend title VII
coverage to Federal employment in Section 717 of the Equal Employment
Opportunity Act of 1972.
The Civil Service Reform Act of 1978 clearly states, for the first
time, that ``it is the policy of the United States * * * to provide * *
* a Federal workforce reflective of the Nation's diversity * * *''
6 The Act establishes in law as the first merit principle
that recruitment should be designed to achieve a Federal workforce from
``all segments of society.'' Among the personnel practices prohibited by
the Act is discrimination prohibited under title VII of the Civil Rights
Act of 1964, as amended.7 Therefore, the Civil Service Reform
Act and its directive for a special recruitment program clearly unite
requirements for basic Federal personnel policy with requirements for
Federal equal employment policy.
---------------------------------------------------------------------------
6 Civil Service Reform Act of 1978, Section 3.
7 Section 101(a) of the Act, 5 U.S.C. 2301(b)(1) and
2302(b)(1)(A), as amended.
---------------------------------------------------------------------------
It is clear from the legislative history of Federal equal employment
policy that the legal standards of title VII must be applied to Federal
employment. Thus, guidelines for a recruitment program designed to
eliminate underrepresentation in Federal agency employment must be
developed consistent with the framework of affirmative action programs.
D. Guided by the review of the legislative history, and the
responsibilities and authorities cited in I(B) of this appendix, the
Commission is issuing these Guidelines to provide a framework for
development of recruitment program regulations by OPM. The Commission
may later provide more detailed guidance, through consultation with OPM,
designed to achieve an overall Federal equal employment program which is
consistent with, and which effectively implements title VII
requirements.
II. Initial Determinations of Underrepresentation. A. Pursuant to
Section 7201, underrepresentation exists when the percentages of
minority and female Federal employees in
[[Page 14]]
specific grades are less than their percentages in the civilian labor
force. ``Minority'' refers only to those groups classified as
``minority'' for the purpose of data collection by the Commission and
OPM in furtherance of Federal equal employment opportunity policies. The
civilian labor force includes all persons 16 years of age and over
except the armed forces, who are employed or seeking employment. Such a
determination of underrepresentation is designated in these Guidelines
as ``below the Section 7201 level''.
B. The Commission has examined existing data on Federal employment
and the civilian labor force and has made initial determinations of
underrepresentation of groups by race, national origin and sex in
specific grades of the major Federal pay systems, under the legal
authorities cited in I(B), of this appendix.
C. The Table which follows shows the grades at which the percentage
of each group in the Federal workforce falls below its percentage in the
civilian labor force. The table covers four major Federal pay systems
which account for more than 95 percent of Federal employees, excluding
the Postal Service.8
---------------------------------------------------------------------------
8 The initial determinations are based on data for only those
agencies covered by the Civil Service Reform Act of 1978. The Commission
will make subsequent determinations on other agencies covered by title
VII, e.g. the U.S. Postal Service, TVA, Central Intelligence Agency,
Federal Reserve Board.
Civilian Labor Force and Federal Employment Grades at Which Minorities and Women Are Below the 7201 Level, by
Selected Pay Systems, and by Sex, Race, and National Origin--1977
----------------------------------------------------------------------------------------------------------------
Percent of Grades Below the 7201 Level
Civilian -----------------------------------------------------------------------
Sex/Race/National Origin Labor Gen Sched and Non-spvsry Leader Regular Spvsry Regular
Force Equivalent Regular Wage Wage Wage
----------------------------------------------------------------------------------------------------------------
Number of Grades............ .......... 18 15 15 19
----------------------------------------------------------------------------------------------------------------
Women....................... 41.0 9+ 2+ 2+ All
White....................... 34.0 9+ All All All
Black....................... 4.6 11+ 5+ 5+ 5+
Hispanic.................... 1.7 6+ All 2, 4+ All
AsAm/PacIs.................. .6 1, 10+ 2+ 2+ All
AmIn/AlNa................... .1 13+ 9+ 1, 5, 6, 9+ 4, 9, 11+
Minority Men................ 8.9 3+ 13+ 11, 14+ 13+
Black....................... 5.3 4, 6+ 12+ 11+ 11+
Hispanic.................... 2.8 All 14+ 1, 15 13-15, 17+
AsAm/PacIs.................. .7 1-8, 10, 16+ 9, 14+ 1, 3, 8, 9, 12+ 1, 3, 8, 9, 17+
AmIn/AlNa................... .2 None 14 1, 13+ 17+
----------------------------------------------------------------------------------------------------------------
Notes.--1. Comparable data for white men shown below are for reference.
White Men................... 50.1 1-8 1-4 1-5 1-3
2. + means ``and all grades above''.
3. Detail may not add to total because of rounding.
Sources: Civilian Labor Force information based on data from the Current Population Survey, Bureau of Labor
Statistics, Employment and Earnings, Vol. 25, No. 1, January 1978.
Information on grades below 7201 level based on Office of Personnel Management data from Equal Employment
Opportunity Statistics, November 20, 1977 (publication in process).
D. The initial determinations of underrepresentation were based upon
average 1977 labor force data from the Current Population Survey
published by the Bureau of Labor Statistics (Employment and Earnings,
January 1978), and 1977 Federal workforce statistics from Equal
Employment Opportunity Statistics (publication in process).
The labor force figures are published annually; the Federal
employment statistics semiannually. These measures, and any
modifications agreed upon by the Commission and OPM, will be updated
annually.
Regional and area Federal employment statistics are available from
the Office of Personnel Management. The latest reliable local labor
force data by race, national origin, and sex is from the 1970 Census.
The Commission and OPM will consult on appropriate labor force measures
to be used for local analyses.
E. These initial determinations are based upon a preliminary
analysis of the data, and may be further refined by the Commission, in
consultation with OPM, to include geographic and occupational
underrepresentation. It is further recognized that for the purpose of
developing regulations, the OPM, in consultation with the Commission,
will undertake more specific analyses of data use and applicability
necessary to develop programs for the Federal agencies pursuant to
Section 7201(a)(2)(C). The OPM may establish criteria for grouping
agencies, for treating
[[Page 15]]
agency components separately and for grouping grades and pay systems. In
addition, OPM may study other available data sources and use other
techniques to assure statistically significant findings of
underrepresentation. Based upon these studies, OPM may make
recommendations to the Commission for future determinations of
underrepresentation.
III. Procedures for Developing Recruitment Programs. A. The program
developed and implemented by OPM under Section 7201 should be designed
to result in applicant pools with sufficient qualified members of
underrepresented groups. Where the supply of such groups initially
appears to be low for specific occupational, professional and other
groupings, the program should be designed so that recruitment efforts
stimulate interest of underrepresented groups in those occupations where
there are realistic projections of Federal employment opportunities.
B. In establishing groupings for determining underrepresentation,
OPM should utilize broad occupational categories to the extent possible.
C. The Commission recognizes that OPM's regulations should allow
flexibility in development and design of each Federal agency's
recruitment program. However, all statistical comparisons must be
computed in a manner consistent with the method utilized in II C of this
appendix.
The Commission recommends that each agency program meet several
minimum requirements. The program should be based on a determination of
underrepresentation in the agency's total workforce, in appropriate
geographic components; by grade; by broad occupational, professional and
other groupings in comparison to the national civilian labor force,
according to the criteria developed by OPM under these guidelines.
Where an agency or major component thereof (such as Headquarters and
Regional Offices) is located in a geographic area where the percentage
of underrepresented groups in the area civilian labor force is higher
than their percentage in the national labor force, the agency or
appropriate component should conduct its recruitment program for that
component on the basis of the higher level of representation in the
relevant civilian labor force.
Where an agency or major component thereof is located in a
geographic area where participation of a particular underrepresented
group in the area labor force is significantly lower than their
participation in the national labor force, such agency or component may,
in consultation with OPM, utilize the lower applicable civilian labor
force percentage in determining underrepresentation for the component.
In no event, however, may the agency utilize a figure lower than the
regional or nationwide Section 7201 level for positions where
recruitment on a regional or nationwide basis is feasible. Factors such
as size of the agency or unit, nature of jobs and their wage or pay
scale may be considered to set goals and to justify a recruitment
program focused on various job categories.
IV. Scope of Actions Covered by This Program. A. ``Recruitment''
under this program is defined as the total process by which the Federal
Government and the Federal agencies locate, identify and assist in the
employment of qualified or qualifiable applicants from underrepresented
groups for job openings in grades and in occupational categories where
underrepresentation has been determined. This process should include
innovative internal, as well as targeted external, recruitment actions.
B. Prior to developing regulations, the Office should review data on
personnel actions and other information, to identify those job
categories for which internal recruitment and external recruitment is
most appropriate and feasible, and to provide guidance to the Federal
agencies for targeting their recruitment programs, based on this
information. OPM should advise all agencies that all job qualifications,
personnel procedures and criteria must be consistent with the Uniform
Guidelines on Employee Selection Procedures (43 FR 38290 August 25,
1978) OPM should consider the following in providing guidance to
agencies:
1. External Recruitment Programs. a. Such programs should focus on
grade levels and/or job categories where underrepresentation has been
identified and where external recruitment realistically will result in
hiring opportunities.
Recruitment programs also should include a review of job functions
to determine those jobs that may be better performed by persons who are
bicultural and who have bilingual capabilities, and those jobs that can
be performed by persons not fluent in English.
b. Where eligibility lists are used for filling jobs, it is
recommended that the regulations require, an analysis by race, national
origin and sex, to determine whether the list contains sufficient
candidates from groups underrepresented in those jobs. OPM should
require that where the list does not have such representation, expanded
recruitment procedures be designed to assure that members of
underrepresented groups qualified to perform the job(s) are included in
the pool of applicants from which the selecting official makes the
selection. Such expanded recruitment procedures may include additional
external recruitment or various actions (such as described in 2. below)
to reach members of these groups within the Federal workforce who are
qualified or qualifiable for these jobs.
2. Internal Recruitment Programs. a. Internal recruitment programs
should be designed by agencies to identify currently qualified or
[[Page 16]]
qualifiable persons for job categories and series where
underrepresentation prevails, according to the national determinations
and the determinations made by each agency under these guidelines.
b. Further, OPM should work with Federal agencies to develop
effective mechanisms for providing information on Federal job
opportunities, targeted to reach Federal employees from underrepresented
groups in all agencies in order to broaden the applicant pool.
V. Consistency with Reorganization Plan No. 1 of 1978. A. The Office
shall develop regulations and implement this program in consultation
with the Commission and with other affected agencies in such manner that
their recruitment programs may be incorporated as a consistent and
effective element of the agencies' national and regional equal
employment opportunity plans. Each agency is required to implement such
plans under the direction and guidance of the Commission in accordance
with Section 717 of title VII of the Civil Rights Act of 1964, as
amended, and Executive Order 12067.
B. Procedures shall be established by OPM and the Commission to
assure appropriate consultation in development of the regulations.
C. Pursuant to Reorganization Plan No. 1 and to Executive Order
12067 issued thereunder, the Commission will establish procedures to
provide appropriate consultation and review of the program on a
continuing basis, to maximize its effectiveness and eliminate any
duplication, conflict or inconsistency in requirements for equal
opportunity programs in the Federal agencies.
D. In preparing its annual report to the Congress pursuant to the
Act, OPM should do so in consultation with the Commission.
[44 FR 22031, Apr. 13, 1979; 44 FR 76747, Dec. 28, 1979]
PART 723--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF PERSONNEL MANAGEMENT--Table of Contents
Sec.
723.101 Purpose.
723.102 Application.
723.103 Definitions.
723.104--723.109 [Reserved]
723.110 Self-evaluation.
723.111 Notice.
723.112--723.129 [Reserved]
723.130 General prohibitions against discrimination.
723.131--723.139 [Reserved]
723.140 Employment.
723.141--723.148 [Reserved]
723.149 Program accessibility: Discrimination prohibited.
723.150 Program accessibility: Existing facilities.
723.151 Program accessibility: New construction and alterations.
723.152--723.159 [Reserved]
723.160 Communications.
723.161--723.169 [Reserved]
723.170 Compliance procedures.
Authority: 29 U.S.C. 794.
Source: 53 FR 25880 and 25885, July 8, 1988, unless otherwise
noted.
Sec. 723.101 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 723.102 Application.
This regulation (Secs. 723.101-723.170) applies to all programs or
activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
Sec. 723.103 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters,
[[Page 17]]
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
[[Page 18]]
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 723.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Secs. 723.104--723.109 [Reserved]
Sec. 723.110 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 723.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Secs. 723.112--723.129 [Reserved
Sec. 723.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
[[Page 19]]
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Secs. 723.131--723.139 [Reserved
Sec. 723.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. 723.141--723.148 [Reserved]
Sec. 723.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 723.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 723.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant
[[Page 20]]
historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 723.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 723.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to individuals with
handicaps. In cases where a physical alteration to an historic property
is not required because of Sec. 723.150(a) (2) or (3), alternative
methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
[[Page 21]]
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 723.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Secs. 723.152--723.159 [Reserved]
Sec. 723.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 723.160 would result
in such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
individuals with handicaps receive the benefits and services of the
program or activity.
Secs. 723.161--723.169 [Reserved]
Sec. 723.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity
[[Page 22]]
Commission in 29 CFR part 1613 pursuant to section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Assistant Director for Personnel and EEO shall be
responsible for coordinating implementation of this section. Complaints
may be sent to the Assistant Director for Personnel and EEO, Office of
Personnel Management, Room 1479, 1900 E St., NW., Washington, DC 20415.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 723.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25880 and 25885, July 8, 1988, as amended at 53 FR 25880, July 8,
1988]
PART 731--SUITABILITY--Table of Contents
Subpart A--Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
Subpart B--Suitability Determinations
731.201 Standard.
731.202 Criteria.
Subpart C--Suitability Rating Actions
731.301 Jurisdiction.
731.302 Risk designation and investigative requirements.
731.303 Actions by OPM and other agencies.
731.304 Debarment.
Subpart D--Suitability Actions
731.401 Scope.
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.
Subpart E--Appeal to the Merit Systems Protection Board
731.501 Appeal to the Merit Systems Protection Board.
Subpart F--Reemployment Eligibility
731.601 Reemployment eligibility of certain former Federal employees.
Subpart G--Savings Provision
731.701 Savings provision.
Authority: 5 U.S.C. 1302, 3301, 3302, 7301, 7701; E.O. 10577, 3
CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p.
306.; E.O. 11491, 3 CFR, 1966-1970 Comp., p. 861.
[[Page 23]]
Source: 56 FR 18650, Apr. 23, 1991, unless otherwise noted.
Subpart A--Scope
Sec. 731.101 Purpose.
The purpose of this part is to establish criteria and procedures for
making determinations of suitability for employment in positions in the
competitive service and for career appointments in the Senior Executive
Service (hereinafter in this part, ``competitive service'') pursuant to
5 U.S.C. 3301 and E.O. 10577. Section 3301 of title 5, United States
Code, directs consideration of ``age, health, character, knowledge, and
ability for the employment sought.'' E.O. 10577 directs OPM to examine
``suitability'' for competitive Federal employment. This part concerns
only determinations of ``suitability'' based on an individual's
character or conduct that may impact the efficiency of the service by
jeopardizing an agency's accomplishment of its duties or
responsibilities, or by interfering with or preventing effective service
in the position applied for or employed in, and determinations that
there is a statutory or regulatory bar to employment. Determinations
made under this part are distinct from determinations of eligibility for
assignment to, or retention in, sensitive national security positions
made under E.O. 10450 or similar authorities.
Sec. 731.102 Implementation.
(a) An investigation conducted for the purpose of determining
suitability under this part may not be used for any other purpose except
as provided in a Privacy Act system of records notice published by the
agency conducting the investigation.
(b) Policies, procedures, criteria, and guidance for the
implementation of this part shall be set forth in issuances of the
Federal Personnel Manual System or other appropriate instruments.
Agencies exercising authority under this part by delegation from OPM
shall conform to such policies, procedures, criteria, and guidance.
Sec. 731.103 Delegation to agencies.
(a) Direct Hires. The head of each agency is delegated authority for
adjudicating suitability under this part for applicants filing directly
with the agency outside a civil service register.
(b) OPM may in its discretion delegate to the heads of agencies
authority for adjudicating suitability in other cases involving
applicants and eligibles for, and appointees to, competitive service
positions in the agency.
(c) Paragraphs (a) and (b) of this section notwithstanding, OPM may
exercise its jurisdiction under this part in any case when deemed
necessary.
(d) Any applicant, eligible, or appointee who is found unsuitable by
any agency having delegated authority from OPM under this part for any
reason named in Sec. 731.202 may appeal to the Merit Systems Protection
Board under the Board's regulations.
Subpart B--Suitability Determinations
Sec. 731.201 Standard.
Subject to subpart C of this part, OPM may deny an applicant
examination, deny an eligible appointment, and direct an agency to
remove an appointee or employee when OPM determines the action will
promote the efficiency of the service.
Sec. 731.202 Criteria.
(a) General. In determining whether its action will promote the
efficiency of the service, OPM or an agency to which OPM has delegated
authority under Sec. 731.103 of this chapter, shall make its
determination on the basis of:
(1) Whether the conduct of the individual may reasonably be expected
to interfere with, or prevent, efficient service in the position applied
for or employed in; or
(2) Whether the conduct of the individual may reasonably be expected
to interfere with, or prevent, effective accomplishment by the employing
agency of its duties or responsibilities; or
(3) Whether a statutory or regulatory bar prevents the lawful
employment of the individual in the position in question.
(b) Specific factors. When making a determination under paragraph
(a) of this section, any of the following reasons may be considered a
basis for finding an individual unsuitable:
[[Page 24]]
(1) Misconduct or negligence in prior employment which would have a
bearing on efficient service in the position in question, or would
interfere with or prevent effective accomplishment by the employing
agency of its duties and responsibilities;
(2) Criminal or dishonest conduct related to the duties to be
assigned to the applicant or appointee, or to that person's service in
the position or the service of other employees;
(3) Intentional false statement or deception or fraud in examination
or appointment;
(4) Refusal to furnish testimony as required by Sec. 5.4 of this
chapter;
(5) Alcohol abuse of a nature and duration which suggests that the
applicant or appointee would be prevented from performing the duties of
the position in question, or would constitute a direct threat to the
property or safety of others;
(6) Illegal use of narcotics, drugs, or other controlled substances,
without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by force;
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. In making a determination under
paragraphs (a) and (b) of this section, OPM and agencies shall consider
the following additional factors to the extent that they deem these
factors pertinent to the individual case:
(1) The kind of position for which the person is applying or in
which the person is employed, including the degree of public trust or
risk in the position;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions;
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
Subpart C--Suitability Rating Actions
Sec. 731.301 Jurisdiction.
(a) Appointments subject to investigation. (1) In order to establish
an appointee's suitability for employment in the competitive service,
every appointment to a position in the competitive service is subject to
investigation by OPM, except:
(i) Promotion;
(ii) Demotion;
(iii) Reassignment;
(iv) Conversion from career-conditional to career tenure;
(v) Appointment, or conversion to an appointment, made by an agency
of an employee of that agency who has been serving continuously with
that agency for at least one year in one or more positions under an
appointment subject to investigation; and
(vi) Transfer, provided the one-year, subject-to-investigation
period applied to the previous appointment has expired.
(2) Appointments are subject to investigation to continue OPM's
jurisdiction to investigate the suitability of an applicant after
appointment and to authorize OPM to require removal when it finds the
appointee is unsuitable for Federal employment. The subject-to-
investigation condition may not be construed as requiring an employee to
serve a new probationary or trial period or as extending the
probationary or trial period of an employee.
(b) Duration of condition. The subject-to-investigation condition
expires automatically at the end of one year after the effective date of
appointment, except in a case involving intentional false statement or
deception or fraud in examination or appointment, or refusal to furnish
testimony.
Sec. 731.302 Risk designation and investigative requirements.
(a) Risk designation. Agency heads shall designate every competitive
service position within the agency at either a High, Moderate, or Low
risk level as determined by the position's potential for adverse impact
to the efficiency of the service.
(b) Investigative requirements. Persons receiving an appointment
made subject
[[Page 25]]
to investigation shall undergo a background investigation, the scope and
coverage of which shall be determined by OPM in accordance with the
level of risk determined by the agency.
(c) Suitability reinvestigations. (1) Every incumbent of a
competitive service position:
(i) Designated High Risk under paragraph (a) of this section, or
(ii) That is a law enforcement or public safety position designated
Moderate Risk under paragraph (a) of this section, shall be subject to a
periodic reinvestigation of a scope established by OPM 5 years after
placement, and at least once each succeeding 5 years.
(2) Periodic reinvestigations required by paragraph (c)(1) of this
section may be adjudicated by the employing agency according to the
procedures in this part, if applicable.
Sec. 731.303 Actions by OPM and other agencies.
(a) For a period of one year after the effective date of an
appointment subject to investigation under Sec. 731.301, OPM may
instruct an agency to remove an appointee when it finds that the
appointee is unsuitable for any of the reasons cited in Sec. 731.202.
(b) Thereafter, OPM may require the removal of an employee on the
basis of either intentional false statement or deception or fraud in
examination or appointment; or refusal to furnish testimony; or
statutory or regulatory bar.
(c) An action to remove an appointee or employee taken pursuant to
an instruction by OPM is not an action under part 752, or Secs. 315.804
through 315.806 of part 315, of this chapter.
(d) When OPM instructs an agency to remove an appointee or employee
under this part it shall notify the agency and the appointee or employee
of its decision in writing.
(e) Before OPM, or any agency having delegated authority from OPM
under this part, shall take a final suitability action against an
applicant, eligible, appointee, or employee under this part, the person
against whom the action is proposed shall be given notice of the
proposed action (including the availability for review, upon request, of
the materials relied upon), an opportunity to answer, notice of the
final decision on the action, and notice of rights of appeal, if any,
all in accordance with this part.
Sec. 731.304 Debarment.
(a) When OPM finds a person unsuitable for any reason named in
Sec. 731.202, OPM, in its discretion, may deny that person examination
for and appointment to a competitive position for a period of not more
than 3 years from the date of determination of unsuitability.
(b) On expiration of a period of debarment, a person who has been
debarred may not be appointed to any position in the competitive service
until OPM has redetermined that person's suitability for appointment.
Subpart D--Suitability Actions
Sec. 731.401 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when OPM, acting under authority of this part, proposes to take or to
instruct an agency to take, a final suitability ineligibility action,
including removal, against an applicant or eligible for appointment in,
or an appointee or employee in, the competitive service. This subpart
does not apply to an action taken by an agency to which OPM has
delegated authority under Sec. 731.103.
(b) Definition. In this subpart, days means calendar days.
Sec. 731.402 Notice of proposed action.
(a) OPM shall notify the applicant, eligible, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action and
of the charges against the respondent. The notice shall state the
reasons, specifically and in detail, for the proposed action. The notice
shall also state that the respondent has the right to answer this notice
in writing. If the respondent is an employee the notice shall further
state that the employee may also make an oral answer, as specified in
Sec. 731.403(a). The notice shall further inform the respondent of the
time limits for answer as well as the address to which such answer
should be made.
(b) OPM shall send a copy of this notice to the agency, if any, that
is involved. The notice shall be served upon
[[Page 26]]
the respondent by being mailed to the respondent's last known residence
or duty station no less than 30 days prior to the effective date of the
proposed adverse action. If the respondent is employed in the
competitive service on the date the notice is served, the respondent
shall be entitled to be retained in pay status during the notice period.
Sec. 731.403 Answer.
(a) Respondent's answer. A respondent may answer the charges in
writing and furnish affidavits in support of the response. A respondent
who is an employee may answer orally. The respondent may be represented
by a representative of the respondent's choice, and such representative
shall be designated in writing to OPM. To be timely, a written answer
shall be made to OPM no more than 30 days after the date of the notice
of proposed action. In the event that an employee requests to make an
oral answer, OPM shall determine the time and place thereof. OPM shall
consider any answer that the respondent makes in reaching a decision.
(b) Agency's answer. In actions proposed by OPM under 5 CFR 5.3, the
agency may also answer the notice of proposed action. The time limit for
filing an answer is 30 days from the date of the notice. OPM shall
consider any answer that the agency makes in reaching a decision.
Sec. 731.404 Decision.
OPM shall notify the respondent and the agency of the decision. The
decision shall be in writing, be dated, and inform the respondent of the
reasons for the decision. Removal of appointees or employees will be
effective 30 days following the date of the decision. The respondent
shall also be informed that an adverse decision can be appealed in
accordance with subpart E of this part.
Subpart E--Appeal to the Merit Systems Protection Board
Sec. 731.501 Appeal to the Merit Systems Protection Board.
(a) An individual who has been found unsuitable for employment may
appeal the decision to the Merit Systems Protection Board (the Board).
An employee or appointee who appeals a removal directed by OPM shall
notify the employing agency of the appeal at the time it is filed.
(b) Appeal Procedures. The procedures for filing an appeal with the
Board are found at part 1201 of Title 5, Code of Federal Regulations.
(c) Pay Status Pending Appeal. When an employee or appointee whom
OPM has determined to be unsuitable files an appeal to the Board, the
employing agency may either suspend the employee or appointee on the day
following the date on which the removal was to have been effected
pending adjudication of the appeal, or retain the employee or appointee
in an active duty status for the period, in which event the agency shall
so notify the employee or appointee. Part 752 of this chapter does not
apply to the suspension.
[59 FR 47527, Sept. 16, 1994]
Subpart F--Reemployment Eligibility
Sec. 731.601 Reemployment eligibility of certain former Federal employees.
(a) Request for suitability determination. When an employee has been
removed by an agency on charges (other than security or loyalty) or has
resigned on learning the agency planned to prefer charges, or while
charges were pending, the former employee may request OPM to determine
his or her suitability for further employment in the competitive
service. OPM shall consider the request only if the former employee:
(1) Has completed any required probationary period;
(2) Has basic eligibility for reinstatement; and
(3) Includes a sworn statement with the request which sets forth
fully and in detail the facts surrounding the removal or resignation.
(b) Action by OPM. (1) OPM, after appropriate consideration,
including any investigation OPM deems necessary, shall inform the former
employee of his or her current suitability for employment in the
competitive service.
[[Page 27]]
(2) If the former employee is found unsuitable and has had an
opportunity to comment on the reasons for this finding, or has furnished
comments to OPM, then OPM may cancel his or her reinstatement
eligibility if that eligibility was obtained through fraud. In addition,
OPM may prescribe a period of debarment from the competitive service not
to exceed 3 years from the date of determination of unsuitability.
Subpart G--Savings Provision
Sec. 731.701 Savings provision.
No provision of these regulations shall be applied in such a way as
to affect any administrative proceeding pending at the effective date of
such provision. An administrative proceeding is deemed to be pending
from the date of the ``notice of proposed action'' described in
Sec. 731.303 of this part.
PART 732--NATIONAL SECURITY POSITIONS--Table of Contents
Subpart A--Scope
Sec.
732.101 Purpose.
732.102 Definition and applicability.
Subpart B--Designation and Investigative Requirements
732.201 Sensitivity level designations and investigative requirements.
732.202 Waivers and exceptions to investigative requirements.
732.203 Periodic reinvestigation requirements.
Subpart C--Due Process and Reporting
732.301 Due process.
732.302 Reporting to OPM.
Subpart D--Security and Related Determinations
732.401 Reemployment eligibility of certain former Federal employees.
Authority: 5 U.S.C. 3301, 3302, 7312; 50 U.S.C. 403; E.O. 10450, 3
CFR, 1949-1953 Comp., p. 936.
Source: 56 FR 18654, Apr. 23, 1991, unless otherwise noted.
Subpart A--Scope
Sec. 732.101 Purpose.
This part sets forth certain requirements and procedures which each
agency shall observe for determining national security positions
pursuant to Executive Order 10450--Security Requirements for Government
Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936,
as amended.
Sec. 732.102 Definition and applicability.
(a) For purposes of this part, the term ``national security
position'' includes: (1) Those positions that involve activities of the
Government that are concerned with the protection of the nation from
foreign aggression or espionage, including development of defense plans
or policies, intelligence or counterintelligence activities, and related
activities concerned with the preservation of the military strength of
the United States; and (2) positions that require regular use of, or
access to, classified information. Procedures and guidance provided in
FPM chapter 732 and related issuances apply.
(b) The requirements of this part apply to competitive service
positions, and to Senior Executive Service positions filled by career
appointment, within the Executive Branch, and agencies may apply them to
excepted service positions within the Executive Branch.
Subpart B--Designation and Investigative Requirements
Sec. 732.201 Sensitivity level designations and investigative requirements.
(a) For purposes of this part, the head of each agency shall
designate, or cause to be designated, any position within the department
or agency the occupant of which could bring about, by virtue of the
nature of the position, a material adverse effect on the national
security as a sensitive position at one of three sensitivity levels:
Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive.
(b) Investigative requirements for each sensitivity level are
provided in FPM chapter 732.
[[Page 28]]
Sec. 732.202 Waivers and exceptions to investigative requirements.
(a) Waivers--(1) General. A waiver of the preappointment
investigative requirement contained in section 3(b) of Executive Order
10450 for employment in a sensitive national security position may be
made only for a limited period: (i) In case of emergency if the head of
the department or agency concerned finds that such action is necessary
in the national interest; and (ii) when such finding is made a part of
the records of the department or agency.
(2) Specific waiver requirements. (i) The preappointment
investigative requirement may not be waived for appointment to positions
designated Special-Sensitive under this part.
(ii) For positions designated Critical-Sensitive under this part,
the records of the department or agency required by Sec. 732.202(a)(1)
of this part shall show what decision was made on obtaining prewaiver
checks, as follows: (A) The nature of the emergency precluded obtaining
prewaiver checks; or (B) checks were initiated but not all responses
were received within 5 days; or (C) checks made and favorably completed
are listed.
(iii) The waiver restriction is optional for positions designated
Noncritical-Sensitive under this part.
(iv) When waiver is authorized, the required investigation must be
initiated within 14 days of placement of the individual in the position.
(b) Exceptions to investigative requirements. (1) Pursuant to
section 3(a) of E.O. 10450, the following positions are exempt from the
investigative requirements of E.O. 10450, providing that the employing
agency conducts such checks as it deems appropriate to insure that the
employment or retention of individuals in these positions is clearly
consistent with the interests of the national security:
(i) Positions that are intermittent, seasonal, per diem, or
temporary, not to exceed an aggregate of 180 days in either a single
continuous appointment or series of appointments; or
(ii) Positions filled by aliens employed outside the United States.
(2) Other positions that OPM, in its discretion, deems appropriate
may be made exempt based on a written request to OPM by the agency head
in whose department or agency the positions are located.
Sec. 732.203 Periodic reinvestigation requirements.
The incumbent of each position designated Special-Sensitive or
Critical-Sensitive under this part shall be subject to periodic
reinvestigation of a scope prescribed by OPM 5 years after placement,
and at least once each succeeding 5 years. The employing agency will use
the results of such periodic reinvestigation to determine whether the
continued employment of the individual in a sensitive position is
clearly consistent with the interests of the national security.
Subpart C--Due Process and Reporting
Sec. 732.301 Due process.
When an agency makes an adjudicative decision under this part based
on an OPM investigation, or when an agency, as a result of information
in an OPM investigation, changes a tentative favorable placement or
clearance decision to an unfavorable decision, the agency must:
(a) Insure that the records used in making the decision are
accurate, relevant, timely, and complete to the extent reasonably
necessary to assure fairness to the individual in any determination.
(b) Comply with all applicable administrative due process
requirements, as provided by law, rule, or regulation.
(c) At a minimum, provide the individual concerned:
(1) Notice of the specific reason(s) for the decision; and
(2) An opportunity to respond; and
(3) Notice of appeal rights, if any.
(d) Consider all available information in reaching its final
decision.
(e) Keep any record of the agency action required by OPM as
published in the Federal Personnel Manual and related issuances.
Sec. 732.302 Reporting to OPM.
(a) In accordance with section 9(a) of E.O. 10450, each agency
conducting an
[[Page 29]]
investigation under E.O. 10450 is required to notify OPM when the
investigation is initiated.
(b) In accordance with section 14(c) of E.O. 10450, agencies shall
report to OPM the action taken with respect to individuals investigated
pursuant to E.O. 10450 as soon as possible and in no event later than 90
days after receipt of the final report of investigation.
Subpart D--Security and Related Determinations
Sec. 732.401 Reemployment eligibility of certain former Federal employees.
(a) Request. A former employee who was terminated, or who resigned
while charges were pending, from a department or agency of the
Government under a statute or executive order authorizing termination in
the interest of national security or on grounds relating to loyalty, and
authorizing OPM to determine the eligibility for employment in another
department or agency of the Government, may request OPM in writing to
determine whether the individual is eligible for employment in another
department or agency of the Government.
(b) Action by OPM. (1) OPM shall determine, and will notify the
former employee, after appropriate consideration of the case, including
such investigation as it considers necessary, whether the individual may
be employed in another department or agency of the Government.
(2) If a former Federal employee found ineligible under this section
has had an opportunity to comment on the reasons for the action, or has
furnished them to OPM or to the former employing agency, OPM may cancel
the reinstatement eligibility if the eligibility resulted from the last
Federal employment and was obtained through fraud, and OPM may prescribe
a period of debarment not to exceed 3 years.
PART 733--POLITICAL ACTIVITY--FEDERAL EMPLOYEES RESIDING IN DESIGNATED LOCALITIES--Table of Contents
Sec.
733.101 Definitions.
733.102 Political activities permitted--employees residing in
designated localities.
733.103 Exclusion of employees in certain agencies and offices.
Authority: 5 U.S.C. 7325.
Source: 59 FR 5314, Feb. 4, 1994, unless otherwise noted.
Sec. 733.101 Definitions.
In this part:
Employee means:
Any individual (other than the President, the Vice President, or a
member of the uniformed services) employed or holding office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The government of the District of Columbia, other than the Mayor
or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
Partisan political office means any office for which any candidate
is nominated or elected as representing a party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected, but does not include any
office or position within a political party or affiliated organization.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose. A political contribution includes:
(1) Any contract, promise, or agreement, express or implied, whether
or not legally enforceable, to make a contribution for any political
purpose;
(2) Any payment by any person, other than a candidate or a political
party or affiliated organization, of compensation for the personal
services of another person which are rendered to any candidate or
political party or affiliated organization without charge for any
political purpose; and
(3) The provision of personal services for any political purpose.
[[Page 30]]
Sec. 733.102 Political activities permitted--employees residing in designated localities.
(a) Employees who reside in a municipality or political subdivision
designated by OPM under paragraph (d) of this section may:
(1) Run as independent candidates for election to partisan political
office in elections for local offices of the municipality or political
subdivision; and
(2) Accept or receive political contributions in connection with the
local elections of the municipality or political subdivision.
(b) Employees may not solicit political contributions from the
general public.
(c) Candidacy for, and service in, a partisan political office shall
not result in neglect of, or interference with, the performance of the
duties of the employee or create a conflict, or apparent confict, of
interest.
(d) OPM may designate a municipality or political subdivision in
Maryland or Virginia in the immediate vicinity of the District of
Columbia, or a municipality in which the majority of voters are employed
by the Government of the United States, when OPM determines that,
because of special or unusual circumstances, it is in the domestic
interest of employees to participate in local elections. Information as
to the documentation required to support a request for designation is
furnished by the General Counsel of OPM on request. The following
municipalities and political subdivisions have been designated,
effective on the day specified:
In Maryland
Annapolis (May 16, 1941).
Anne Arundel County (March 14, 1973).
Berwyn Heights (June 15, 1944).
Bethesda (Feb. 17, 1943).
Bladensburg (Apr. 20, 1942).
Bowie (Apr. 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, Martin's Additions 1, 2, 3, and 4 (Feb. 13, 1941).
Chevy Chase, section 1 and 2 (Mar. 4, 1941).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
College Park (June 13, 1945).
Cottage City (Jan. 15, 1941).
District Heights (Nov. 2, 1940).
Edmonston (Oct. 24, 1940).
Fairmont Heights (Oct. 24, 1940).
Forest Heights (Apr. 22, 1949).
Frederick County (May 31, 1991).
Garrett Park (Oct. 2, 1940).
Glenarden (May 21, 1941).
Glen Echo (Oct. 22, 1940).
Greenbelt (Oct. 4, 1940).
Howard County (Apr. 25, 1974).
Hyattsville (Sept. 20, 1940).
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Montgomery County (Apr. 30, 1964).
Morningside (May 19, 1949).
Mount Rainier (Nov. 22, 1940).
New Carrollton (July 7, 1981).
North Beach (Sept. 20, 1940).
North Brentwood (May 6, 1941).
North Chevy Chase (July 22, 1942).
Northwest Park (Feb. 17, 1943).
Prince Georges County (June 19, 1962).
Riverdale (Sept. 26, 1940).
Rockville (Apr. 15, 1948).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (Apr. 5, 1941).
In Virginia
Alexandria (Apr. 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, Town of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Herndon (Apr. 7, 1945).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (Mar. 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Stafford County (Nov. 2, 1979).
Vienna (Mar. 18, 1946).
Other Municipalities
Anchorage, Alaska (Dec. 29, 1947).
Benicia, Calif. (Feb. 20, 1948).
Bremerton, Wash. (Feb. 27, 1946).
Centerville, Ga. (Sept. 16, 1971).
Crane, Ind. (Aug. 3, 1967).
District of Columbia (July 5, 1977).
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (Apr. 9, 1959).
New Johnsonville, Tenn. (Apr. 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (Mar. 19, 1948).
Sec. 733.103 Exclusion of employees in certain agencies and offices.
Employees in the following agencies or offices (except employees
appointed
[[Page 31]]
by the President, by and with the advice and consent of the Senate)
specifically are excluded from coverage under the provisions of part
733:
(a) Federal Election Commission;
(b) Federal Bureau of Investigation;
(c) Secret Service;
(d) Central Intelligence Agency;
(e) National Security Council;
(f) National Security Agency;
(g) Defense Intelligence Agency;
(h) Merit Systems Protection Board;
(i) Office of Special Counsel;
(j) Office of Criminal Investigation of the Internal Revenue
Service;
(k) Office of Investigative Programs of the United States Customs
Service;
(l) Office of Law Enforcement of the Bureau of Alcohol, Tobacco, and
Firearms;
(m) Criminal Division of the Department of Justice;
(n) Career appointees in the Senior Executive Service;
(o) Administrative law judges; and
(p) Contract appeals board members described in 5 U.S.C. 5372a.
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES--Table of Contents
Subpart A--General Provisions
Sec.
734.101 Definitions.
734.102 Jurisdiction.
734.103 Multicandidate political committees of Federal labor
organizations and Federal employee organizations.
734.104 Restriction of political activity.
Subpart B--Permitted Activities
734.201 Exclusion from coverage.
734.202 Permitted activities.
734.203 Participation in nonpartisan activities.
734.204 Participation in political organizations.
734.205 Participation in political campaigns.
734.206 Participation in elections.
734.207 Candidacy for public office.
734.208 Participation in fundraising.
Subpart C--Prohibited Activities
734.301 Exclusion from coverage.
734.302 Use of official authority; prohibition.
734.303 Fundraising.
734.304 Candidacy for public office.
734.305 Soliciting or discouraging the political participation of
certain persons.
734.306 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of
official duties, or using a Federal vehicle.
734.307 Campaigning for a spouse or family member.
Subpart D--Employees in Certain Agencies and Positions
734.401 Coverage.
734.402 Expression of an employee's individual opinion.
734.403 Participation in elections.
734.404 Participation in political organizations.
734.405 Campaigning for a spouse or family member.
734.406 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of
official duties, or using a Federal vehicle; prohibition.
734.407 Use of official authority; prohibition.
734.408 Participation in political management and political
campaigning; prohibitions.
734.409 Participation in political organizations; prohibitions.
734.410 Participation in political fundraising; prohibitions.
734.411 Participation in political campaigning; prohibitions.
734.412 Participation in elections; prohibitions.
734.413 Employees of the Federal Election Commission; prohibitions.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid From the Appropriation for the Executive Office of the
President
734.501 Permitted and prohibited activities.
734.502 Participation in political activity while on duty, in uniform,
in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
734.503 Allocation and reimbursement of costs associated with political
activities.
734.504 Contributions to political action committees through voluntary
payroll allotments prohibited.
Subpart F--Employees Who Work on an Irregular or Occasional Basis
734.601 Employees who work on an irregular or occasional basis.
Subpart G--Related Statutes and Executive Orders
734.701 General.
[[Page 32]]
734.702 Related statutes and Executive orders.
Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2 of
1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978
Comp. p. 264.
Source: 59 FR 48769, Sept. 23, 1994, unless otherwise noted.
Subpart A--General Provisions
Sec. 734.101 Definitions.
For the purposes of this part:
Accept means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or a
partisan political group, but does not include ministerial activities
which precede or follow this official act.
Candidate means an individual who seeks nomination or election to
any elective office whether or not the person is elected. An individual
is deemed to be a candidate if the individual has received political
contributions or made expenditures or has consented to another person
receiving contributions or making expenditures with a view to bringing
about the individual's nomination or election.
Campaign means all acts done by a candidate and his or her adherents
to obtain a majority or plurality of the votes to be cast toward a
nomination or in an election.
Election includes a primary, special, runoff, or general election.
Employee means any individual (other than the President, Vice
President, or a member of the uniformed services) employed or holding
office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The Government of the District of Columbia, other than the Mayor
or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
Employing office shall have the meaning given by the head of each
agency or instrumentality of the United States Government or District of
Columbia Government covered by this part. Each agency or instrumentality
shall provide notice identifying the appropriate employing offices
within it through internal agency notice procedures.
Federal employee organization means any lawful nonprofit
organization, association, society, or club composed of Federal
employees.
Federal labor organization means an organization defined in 5 U.S.C.
7103(a)(4).
Multicandidate political committee means an organization defined in
2 U.S.C. 441a(a)(4).
Nonpartisan election means--
(1) An election in which none of the candidates is to be nominated
or elected as representing a political party any of whose candidates for
Presidential elector received votes in the last preceding election at
which Presidential electors were selected; or
(2) An election involving a question or issue which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance, or any
question or issue of a similar character.
Occasional means occurring infrequently, at irregular intervals, and
according to no fixed or certain scheme; acting or serving for the
occasion or only on particular occasions.
Office means the U.S. Office of Personnel Management.
On Duty means the time period when an employee is:
(1) In a pay status other than paid leave, compensatory time off,
credit hours, time off as an incentive award, or excused or authorized
absence (including leave without pay); or
(2) Representing any agency or instrumentality of the United States
Government or any agency or instrumentality of the District of Columbia
Government in an official capacity.
Partisan when used as an adjective means related to a political
party.
Partisan political group means any committee, club, or other
organization which is affiliated with a political party or candidate for
public office in a partisan election, or organized for a partisan
purpose, or which engages in partisan political activity.
Partisan political office means any office for which any candidate
is nominated or elected as representing a
[[Page 33]]
party any of whose candidates for Presidential elector received votes in
the last preceding election at which Presidential electors were
selected, but does not include any office or position within a political
party or affiliated organization.
Person means an individual; a State, local, or foreign government;
or a corporation and subsidiaries it controls, company, association,
firm, partnership, society, joint stock company, or any other
organization or institution, including any officer, employee, or agent
of such person or entity.
Political Action Committee means any committee, association, or
organization (whether or not incorporated) which accepts contributions
or makes expenditures for the purpose of influencing, or attempting to
influence, the nomination or election of one or more individuals to
Federal, State, or local elective public office.
Political activity means an activity directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose.
(a) A political contribution includes:
(1) Any contract, promise, or agreement, express or implied, whether
or not legally enforceable, to make a contribution for any political
purpose;
(2) Any payment by any person, other than a candidate or a political
party or affiliated organization, of compensation for the personal
services of another person which are rendered to any candidate or
political party or affiliated organization without charge for any
political purpose; and
(3) The provision of personal services, paid or unpaid, for any
political purpose.
(b) A political contribution does not include the value of services
provided without compensation by any individual who volunteers on behalf
of any candidate, campaign, political party, or partisan political
group.
Political management means the direction or supervision of a
partisan political group or campaign for partisan political office.
Political party means a national political party, a State political
party, or an affiliated organization.
Political purpose means an objective of promoting or opposing a
political party, candidate for partisan political office, or partisan
political group.
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or a
partisan political group, but does not include ministerial activities
which precede or follow this official act.
Recurrent means occurring frequently, or periodically on a regular
basis.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally leased
space in which Federal employees perform official duties on a regular
basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
Solicit means to request expressly of another person that he or she
contribute something to a candidate, a campaign, a political party, or
partisan political group.
Subordinate refers to the relationship between two employees when
one employee is under the supervisory authority, control or
administrative direction of the other employee.
Uniformed services means uniformed services as defined in 5 U.S.C.
2101(3).
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35099, July 5, 1996]
[[Page 34]]
Sec. 734.102 Jurisdiction.
(a) The United States Office of Special Counsel has exclusive
authority to investigate allegations of political activity prohibited by
the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR part
734, prosecute alleged violations before the United States Merit Systems
Protection Board, and render advisory opinions concerning the
applicability of 5 CFR part 734 to the political activity of Federal
employees and employees of the District of Columbia government. (5
U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments
may be requested from the Office of Special Counsel:
(1) By letter addressed to the Office of Special Counsel at 1730 M
Street NW., Suite 300, Washington, DC 20036, or
(2) By telephone on (202) 653-7188, or (1-800) 854-2824.
(b) The Merit Systems Protection Board has exclusive authority to
determine whether a violation of the Hatch Act Reform Amendments of
1993, as implemented by 5 CFR part 734, has occurred and to impose a
minimum penalty of suspension for 30 days and a maximum penalty of
removal for violation of the political activity restrictions regulated
by this part. (5 U.S.C. 1204 and 7326).
(c) The Office of Personnel Management is authorized to issue
regulations describing the political activities which are permitted and
prohibited under the Hatch Act Reform Amendments of 1993. (5 U.S.C.
1103, 1104, 7325; Reorganization Plan No. 2 of 1978, 92 Stat. 3783, 3
CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978 Comp. p. 264.)
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.103 Multicandidate political committees of Federal labor organizations and Federal employee organizations.
(a) In order to qualify under this part, each multicandidate
political committee of a Federal labor organization must provide to the
Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined by 2 U.S.C.
441a(a)(4);
(2) Information identifying the Federal labor organization to which
the multicandidate political committee is connected; and
(3) Information that identifies the Federal labor organization as a
labor organization defined at 5 U.S.C. 7103(4).
(b) In order to qualify under this part, each multicandidate
political committee of a Federal employee organization must provide to
the Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined in 2 U.S.C.
441a(a)(4);
(2) Information identifying the Federal employee organization to
which the multicandidate political committee is connected; and
(3) Information indicating that the multicandidate political
committee was in existence as of October 6, 1993.
Sec. 734.104 Restriction of political activity.
No further proscriptions or restrictions may be imposed upon
employees covered under this regulation except:
(a) Employees who are appointed by the President by and with the
advice and consent of the Senate;
(b) Employees who are appointed by the President;
(c) Non-career senior executive service members;
(d) Schedule C employees, 5 CFR 213.3301, 213.3302; and
(e) Any other employees who serve at the pleasure of the President.
Subpart B--Permitted Activities
Sec. 734.201 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.202 Permitted activities.
Employees may take an active part in political activities, including
political management and political campaigns, to the extent not
expressly prohibited by law and this part.
[[Page 35]]
Sec. 734.203 Participation in nonpartisan activities.
An employee may:
(a) Express his or her opinion privately and publicly on political
subjects;
(b) Be politically active in connection with a question which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance or any other
question or issue of a similar character;
(c) Participate in the nonpartisan activities of a civic, community,
social, labor, or professional organization, or of a similar
organization; and
(d) Participate fully in public affairs, except as prohibited by
other Federal law, in a manner which does not compromise his or her
efficiency or integrity as an employee or the neutrality, efficiency, or
integrity of the agency or instrumentality of the United States
Government or the District of Columbia Government in which he or she is
employed.
Example 1: An employee may participate, including holding office,
in any nonpartisan group. Such participation may include fundraising as
long as the fundraising is not in any way connected with any partisan
political issue, group, or candidate, and as long as the fundraising
complies with part 2635 of this title as well as any other directives
that may apply, e.g., the Federal Property Management Regulations in 41
CFR chapter 101.
Example 2: An employee, individually or collectively with other
employees, may petition or provide information to Congress as provided
in 5 U.S.C. 7211.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.204 Participation in political organizations.
An employee may:
(a) Be a member of a political party or other political group and
participate in its activities;
(b) Serve as an officer of a political party or other political
group, a member of a national, State, or local committee of a political
party, an officer or member of a committee of a political group, or be a
candidate for any of these positions;
(c) Attend and participate fully in the business of nominating
caucuses of political parties;
(d) Organize or reorganize a political party organization or
political group; and
(e) Participate in a political convention, rally, or other political
gathering.
(f) Serve as a delegate, alternate, or proxy to a political party
convention.
Example 1: An employee of the Department of Education may serve as
a delegate, alternate, or proxy to a State or national party convention.
Example 2: A noncareer member of the Senior Executive Service, or
other employee covered under this subpart, may serve as a vice-president
of a political action committee, as long as the duties of the office do
not involve personal solicitation, acceptance, or receipt of political
contributions. Ministerial activities which precede or follow the
official acceptance and receipt, such as handling, disbursing, or
accounting for contributions are not covered under the definitions of
accept and receive in Sec. 734.101. Sections 734.208 and 734.303
describe in detail permitted and prohibited activities which are related
to fundraising.
Example 3: An employee of the Federal Communications Commission may
make motions or place a name in nomination at a nominating caucus.
Example 4: An employee of the Department of the Interior may serve
as an officer of a candidate's campaign committee as long as he does not
personally solicit, accept, or receive political contributions. Sections
734.208 and 734.303 of this part describe in detail permitted and
prohibited activities which are related to fundraising.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.205 Participation in political campaigns.
Subject to the prohibitions in Sec. 734.306, an employee may:
(a) Display pictures, signs, stickers, badges, or buttons associated
with political parties, candidates for partisan political office, or
partisan political groups, as long as these items are displayed in
accordance with the provisions of Sec. 734.306 of subpart C of this
part;
(b) Initiate or circulate a nominating petition for a candidate for
partisan political office;
(c) Canvass for votes in support of or in opposition to a partisan
political candidate or a candidate for political party office;
[[Page 36]]
(d) Endorse or oppose a partisan political candidate or a candidate
for political party office in a political advertisement, broadcast,
campaign literature, or similar material;
(e) Address a convention, caucus, rally, or similar gathering of a
political party or political group in support of or in opposition to a
partisan political candidate or a candidate for political party office;
and
(f) Take an active part in managing the political campaign of a
partisan political candidate or a candidate for political party office.
Example 1: An employee of the Environmental Protection Agency may
broadcast endorsements for a partisan political candidate via a public
address system attached to his or her private automobile.
Example 2: An employee of the Department of Interior may canvass
voters by telephone on behalf of a political party or partisan political
candidate.
Example 3: An employee of the Department of Agriculture may stand
outside of polling places on election day and hand out brochures on
behalf of a partisan political candidate or political party.
Example 4: An employee may appear in a television or radio broadcast
which endorses a partisan political candidate and is sponsored by the
candidate's campaign committee, a political party, or a partisan
political group.
Example 5: An independent contractor is not covered by this part and
may display a political button while performing the duties for which he
or she is contracted.
Example 6: An employee of the Department of Commerce who is on
official travel may take annual leave in the morning to give an address
at a breakfast for a candidate for partisan political office.
Example 7: An employee may manage the political campaign of a
candidate for public office including supervising paid and unpaid
campaign workers.
Example 8: While not on duty, a Federal employee may distribute
campaign leaflets by hand to homes or parked cars even though the
leaflet may contain information concerning where to send contributions
among other factual material about a partisan political candidate.
However, should a member of the public stop the employee and request
further information about contributions, the employee should refer that
request to another campaign worker who is not a Federal employee.
Example 9: An employee may place in his or her front yard a sign or
banner supporting a partisan political candidate.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.206 Participation in elections.
An employee may:
(a) Register and vote in any election;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places;
(c) Serve as an election judge or clerk, or in a similar position;
and
(d) Drive voters to polling places for a partisan political
candidate, partisan political group, or political party.
Example: An employee may drive voters to polling places in a
privately owned vehicle, but not in a Government-owned or leased
vehicle.
Sec. 734.207 Candidacy for public office.
An employee may:
(a) Run as an independent candidate in a partisan election covered
by 5 CFR part 733; and
(b) Run as a candidate in a nonpartisan election.
Example 1: An employee who is a candidate for public office in a
nonpartisan election is not barred by the Hatch Act from soliciting,
accepting, or receiving political contributions for his or her own
campaign; however, such solicitation, acceptance, or receipt must comply
with part 2635 of this title as well as any other directives that may
apply, e.g., The Federal Property Management Regulations in 41 CFR
chapter 101.
Sec. 734.208 Participation in fundraising.
(a) An employee may make a political contribution to a political
party, political group, campaign committee of a candidate for public
office in a partisan election and multicandidate political committee of
a Federal labor or Federal employee organization.
(b) Subject to the prohibitions stated in section 734.303, an
employee may--
(1) Attend a political fundraiser;
(2) Accept and receive political contributions in a partisan
election described in 5 CFR part 733;
(3) Solicit, accept, or receive uncompensated volunteer services
from any individual; and
(4) Solicit, accept, or receive political contributions, as long as:
[[Page 37]]
(i) The person who is solicited for a political contribution belongs
to the same Federal labor organization, or Federal employee
organization, as the employee who solicits, accepts, or receives the
contribution;
(ii) The person who is solicited for a political contribution is not
a subordinate employee; and
(iii) The request is for a contribution to the multicandidate
political committee of a Federal labor organization or to the
multicandidate political committee of a Federal employee organization in
existence on October 6, 1993.
(c) Subject to the provisions of Sec. 734.306, an employee may make
a financial contribution to a political action committee through a
voluntary allotment made under Sec. 550.311(b) of this chapter, if the
head of the employee's agency permits agency employees to make such
allotments to political action committees.
(d) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under section 550.311(b) of this title.
Example 1: An GS-12 employee of the Department of Treasury who
belongs to the same Federal employee organization as a GS-5 employee of
the Department of Treasury may solicit a contribution for the
multicandidate political committee when she is not on duty as long as
the GS-5 employee is not under the supervisory authority of the GS-12
employee.
Example 2: An employee of the National Park Service may give a
speech or keynote address at a political fundraiser when he is not on
duty, as long as the employee does not solicit political contributions,
as prohibited in Sec. 734.303(b) of this part.
Example 3: An employee's name may appear on an invitation to a
political fundraiser as a guest speaker as long as the reference in no
way suggests that the employee solicits or encourages contributions, as
prohibited in Sec. 734.303 of this part and described in example 2
thereunder. However, the employee's official title may not appear on
invitations to any political fundraiser, except that an employee who is
ordinarily addressed using a general term of address, such as ``The
Honorable,'' may use or permit the use of that term of address for such
purposes.
Example 4: When an employee of the Department of Transportation is
not on duty, he or she may engage in activities which do not require
personal solicitations of contributions, such as organizing mail or
phone solicitations for political contributions. Activities such as
stuffing envelopes with requests for political contributions also are
permitted. However, he or she may not sign the solicitation letter
unless the solicitation is for the contribution of uncompensated
volunteer services of individuals who are not subordinate employees. An
employee may not knowingly send to his or her subordinate employees a
letter soliciting the contribution of their uncompensated services.
However, he or she may sign a letter that solicits contributions of
uncompensated volunteer services as part of a general mass mailing that
might reach a subordinate employee, as long as the mass mailing is not
specifically targeted to his or her subordinate employees.
Example 5: An employee who is not on duty may participate in a phone
bank soliciting the uncompensated services of individuals. However, an
employee may not make phone solicitations for political contributions
even anonymously.
Example 6: An employee of the Department of Agriculture who is on
official travel and is not in a pay status nor officially representing
the Department may write invitations in his hotel room to a meet-the-
candidate reception which he plans to hold in his home.
Example 7: An employee may serve as an officer or chairperson of a
political fundraising organization or committee as long as he or she
does not personally solicit, accept, or receive political contributions.
For example, the employee may organize or manage fundraising activities
as long as he or she does not violate the above prohibition.
Example 8: The head of a cabinet-level department may contribute one
of her worn-out cowboy boots to the campaign committee of a Senatorial
candidate to be auctioned off in a fundraising raffle for the benefit of
the candidate's campaign.
Example 9: An employee may help organize a fundraiser including
supplying names for the invitation list as long as he or she does not
personally solicit, accept, or receive contributions.
Example 10 An employee on travel may engage in political activity
when he or she is not on duty without taking annual leave.
Example 11: A Federal employee may solicit, accept, or receive the
uncompensated volunteer services of any individual, except a subordinate
employee, to work on behalf of a partisan political candidate or
organization. However, such solicitation, acceptance, or receipt must
comply with part 2635 of this title as well as any other directives that
may apply, e.g., the Federal Property Management Regulations in 41 CFR
chapter 101. Further, Federal employees are subject to
[[Page 38]]
criminal anti-coercion provisions found at 18 U.S.C. 610.
Example 12: An employee who desires to make a financial contribution
to a political action committee through a voluntary allotment personally
may obtain blank direct deposit forms from his or her payroll office.
However, he or she may not complete the form while he or she is on duty,
on Federal property, or in a Federally owned or leased vehicle.
Moreover, he or she may not personally deliver his or her completed
form, or the completed form of another employee, to the payroll office.
However, the employee may mail his or her direct deposit form to his or
her agency payroll office.
Example 13: Employees who are permitted to solicit, accept, or
receive political contributions under the circumstances described in
Sec. 734.208(b)(4) may not solicit, accept, or receive such
contributions either while they are on duty, or while they are on
Federal premises, or both.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Subpart C--Prohibited Activities
Sec. 734.301 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.302 Use of official authority; prohibition.
(a) An employee may not use his or her official authority or
influence for the purpose of interfering with or affecting the result of
an election.
(b) Activities prohibited by paragraph (a) of this section include,
but are not limited to:
(1) Using his or her official title while participating in political
activity;
(2) Using his or her authority to coerce any person to participate
in political activity; and
(3) Soliciting, accepting, or receiving uncompensated individual
volunteer services from a subordinate for any political purpose.
Example 1: An employee who signs a letter seeking uncompensated
volunteer services from individuals may not identify himself or herself
by using his or her official title. However, the employee may use a
general form of address, such as ``The Honorable.''
Example 2: A noncareer member of the Senior Executive Service, or
another employee covered by this subpart, may not ask his or her
subordinate employees to provide uncompensated individual volunteer
services for a political party, partisan political group, or candidate
for partisan political office. Moreover, he or she may not accept or
receive such services from a subordinate employee who offers to donate
them.
Example 3: An employee may not require any person to contribute to a
partisan political campaign in order to win a Federal contract:
[61 FR 35100, July 5, 1996]
Sec. 734.303 Fundraising.
An employee may not knowingly:
(a) Personally solicit, accept or receive a political contribution
from another person, except under the circumstances specified in
Sec. 734.208(b);
(b) Personally solicit political contributions in a speech or
keynote address given at a fundraiser;
(c) Allow his or her official title to be used in connection with
fundraising activities; or
(d) Solicit, accept, or receive uncompensated volunteer services
from an individual who is a subordinate.
Example 1: An employee may not host a fundraiser at his or her
home. However, a spouse who is not covered under this part may host such
a fundraiser and the employee may attend. The employee may not
personally solicit contributions to the fundraiser. Moreover, the
employee may not accept, or receive political contributions, except
under the circumstances stated in Sec. 734.208(b).
Example 2: An employee's name may not appear on an invitation to a
fundraiser as a sponsor of the fundraiser, or as a point of contact for
the fundraiser.
Example 3: An employee may not ask a subordinate employee to
volunteer on behalf of a partisan political campaign.
Example 4: An employee may not call the personnel office of a
business or corporation and request that the corporation or business
provide volunteers or services for a campaign. However, an employee may
call an individual who works for a business or corporation and request
that specific individual's services for a campaign.
Sec. 734.304 Candidacy for public office.
An employee may not run for the nomination or as a candidate for
election to partisan political office, except as specified in
Sec. 734.207.
Sec. 734.305 Soliciting or discouraging the political participation of certain persons.
(a) An employee may not knowingly solicit or discourage the
participation in any political activity of any person
[[Page 39]]
who has an application for any compensation grant, contract, ruling,
license, permit, or certificate pending before the employee's employing
office.
(b) An employee may not knowingly solicit or discourage the
participation in any political activity of any person who is the subject
of, or a participant in, an ongoing audit, investigation, or enforcement
action being carried out by the employee's employing office.
(c) Each agency or instrumentality of the United States or District
of Columbia Government shall determine when a matter is pending and
ongoing within employing offices of the agency or instrumentality for
the purposes of this part.
Example 1: An employee with agency-wide responsibility may address
a large, diverse group to seek support for a partisan political
candidate as long as the group has not been specifically targeted as
having matters before the employing office.
Example 2: An employee of the Federal Deposit Insurance Corporation
(FDIC) may not solicit or discourage the participation of an insured
financial institution or its employees if the institution is undergoing
examination by the FDIC.
Example 3: An employee of the Food and Drug Administration may
address a banquet for a partisan political candidate which is sponsored
by the candidate's campaign committee, even though the audience includes
three individuals who are employed by or are officials of a
pharmaceutical company. However, she may not deliver the address if the
banquet is sponsored by a lobbying group for pharmaceutical companies,
of if she knows that the audience will be composed primarily of
employees or officials of such companies.
Sec. 734.306 Participation in political activities while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle.
(a) An employee may not participate in political activities subject
to the provisions of subpart E of this part:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, insignia, or other
similar item that identifies the employing agency or instrumentality or
the position of the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(b) The prohibitions in paragraph (a) of this section do not apply
to employees covered under subpart E of this part.
Example 1: While on leave without pay, an employee is not subject
to the prohibition in Sec. 734.306(a)(1) because he or she is not on
duty. However, while on leave without pay, the employee remains subject
to the other prohibitions in subpart C.
Example 2: A Postal Service employee who uses her private vehicle to
deliver mail may place a political bumper sticker on the vehicle, as
long as she covers the bumper sticker while she is on duty.
Example 3: An employee who uses his or her privately owned vehicle
on a recurrent basis for official business may place a partisan
political bumper sticker on the vehicle, as long as he or she covers the
bumper sticker while the vehicle is being used for official duties.
Example 4: An employee who uses his or her privately owned vehicle
on official business, must cover any partisan political bumper sticker
while the vehicle is being used for official duties, if the vehicle is
clearly identified as being on official business.
Example 5: A noncareer member of the Senior Executive Service, or
any other employee covered by this subpart, who uses his or her
privately owned vehicle only on an occasional basis to drive to another
Federal agency for a meeting, or to take a training course, is not
required to cover a partisan political bumper sticker on his or her
vehicle.
Example 6: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 7: An employee may place a bumper sticker on his or her
privately owned vehicle and park his or her vehicle in a parking lot of
an agency or instrumentality of the United States Government or in a
non-Federal facility for which the employee receives a subsidy from his
or her employing agency or instrumentality.
Example 8: When an agency or instrumentality of the United States
Government leases offices in a commercial building and that building
includes the headquarters of a candidate for partisan political office,
an employee of that agency or instrumentality may do volunteer work,
when he or she is not on duty, at the candidate's headquarters and in
other areas of the building that have not been leased by the Government.
[[Page 40]]
Example 9: A Government agency or instrumentality leases all of the
space in a commercial building; employees may not participate in
political activity in the public areas of the leased building.
Example 10: An employee of the National Aeronautics and Space
Administration (NASA) may not engage in political activities while
wearing a NASA flight patch, NASA twenty-year pin or anything with an
official NASA insignia.
Example 11: If a political event begins while an employee is on duty
and continues into the time when he or she is not on duty, the employee
must wait until he or she is not on duty to attend the event.
Alternatively, an employee may request annual leave to attend the
political event when it begins.
Example 12: Officials of labor organizations who have been given
official time to perform representational duties are on duty.
Example 13: An employee may stuff envelopes for a mailing on behalf
of a candidate for partisan political office while the employee is
sitting in the park during his or her lunch period if he or she is not
considered to be on duty during his or her lunch period.
Example 14: An employee who works at home may engage in political
activities at home when he or she is not in a pay status or representing
the Government in an official capacity.
Example 15: An employee who is appointed by the President by and
with the advice and consent of the Senate (PAS) may attend a political
event with an non-PAS employee whose official duties do not require
accompanying the PAS as long as the non-PAS employee is not on duty.
Example 16: A noncareer member of the Senior Executive Service, or
any other employee covered by this subpart, may not wear partisan
political buttons or display partisan political pictures, signs,
stickers, or badges while he or she is on duty or at his or her place of
work.
Example 17: An employee may not engage in political activity in the
cafeteria of a Federal building, even if the cafeteria is in space
leased by a contractor.
Example 18: An employee who contributes financially to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit forms
while he or she is on duty, in a ``room or building'' defined in
Sec. 734.101 or in a Federally owned or leased vehicle.
Example 19: An employee who contributes financially to a political
action committee through a voluntary allotment may not personally
deliver his or her completed direct deposit form, or the completed
direct deposit form of another employee, to the payroll employees who
would process or administer such forms. However, the employee may mail
his or her direct deposit form to his or her agency payroll office.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.307 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, candidate
for political party office, or candidate for public office in a
nonpartisan election, is subject to the same prohibitions as other
employees covered under this subpart.
Example 1: An employee who is married to a candidate for partisan
political office may attend a fundraiser for his or her spouse, stand in
the receiving line, sit at the head table, and urge others to vote for
his or her spouse. However, the employee may not personally solicit,
accept, or receive contributions of money or the paid or unpaid services
of a business or corporation, or sell or collect money for tickets to
the fundraiser.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier. She may distribute fliers at a campaign
rally as long as she does not personally solicit contributions.
Example 3: An employee who is married to a candidate for political
partisan political office may appear with her spouse in a political
advertisement or a broadcast, and urge others to vote for her spouse, as
long as the employee does not personally solicit political
contributions.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Subpart D--Employees in Certain Agencies and Positions
Sec. 734.401 Coverage.
(a) This subpart applies to employees in the following agencies and
positions:
(1) The Federal Election Commission;
(2) The Federal Bureau of Investigation;
(3) The Secret Service;
(4) The Central Intelligence Agency;
(5) The National Security Council;
(6) The National Security Agency;
(7) The Defense Intelligence Agency;
(8) The Merit Systems Protection Board;
(9) The Office of Special Counsel;
(10) The Office of Criminal Investigation of the Internal Revenue
Service.
[[Page 41]]
(11) The Office of Investigative Programs of the United States
Customs Service;
(12) The Office of Law Enforcement of the Bureau of Alcohol,
Tobacco, and Firearms;
(13) The Criminal Division of the Department of Justice;
(14) The Central Imagery Office;
(15) Career Senior Executive Service positions described in 5 U.S.C.
3132(a)(4);
(16) Administrative Law Judge positions described in 5 U.S.C. 5372;
(17) Contract Appeals Board Member positions described in 5 U.S.C.
5372a.
(b) Employees appointed by the President by and with the advice and
consent of the Senate in the agencies and positions described in
paragraph (a) of this section are excluded from coverage under this
subpart.
(c) All employees covered under this subpart are free to engage in
political activity to the widest extent consistent with the restrictions
imposed by law and this subpart.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.402 Expression of an employee's individual opinion.
Each employee covered under this subpart retains the right to
participate in any of the following political activities, as long as
such activity is not performed in concert with a political party,
partisan political group, or a candidate for partisan political office:
(a) Express his or her opinion as an individual privately and
publicly on political subjects and candidates;
(b) Display a political picture, sign, sticker, badge, or button, as
long as these items are displayed in accordance with the provisions of
Sec. 734.406;
(c) Sign a political petition as an individual;
(d) Be politically active in connection with a question which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance, or any other
question or issue of a similar character; and
(e) Otherwise participate fully in public affairs, except as
prohibited by other Federal law, in a manner which does not compromise
his or her efficiency or integrity as an employee or the neutrality,
efficiency, or integrity of the agency or instrumentality of the United
States Government in which he or she is employed.
Example 1: An employee may purchase air time on a radio or
television station to endorse a partisan political candidate. However,
he or she may not endorse such a candidate in a commercial or program
which is sponsored by the candidate's campaign committee, a political
party, or a partisan political group.
Example 2: An employee may address a political convention or rally
but not on behalf, or at the request of, a political party, partisan
political group, or an individual who is running for the nomination or
as a candidate for election to partisan political office.
Example 3: An employee may print at her own expense one thousand
fliers which state her personal opinion that a partisan political
candidate is the best suited for the job. She may distribute the fliers
at a shopping mall on the weekend. However, she may not distribute
fliers printed by the candidate's campaign committee, a political party,
or a partisan political group.
Example 4: An employee may place in his or her yard a sign
supporting a candidate for partisan political office.
Example 5: An employee may stand outside of a political party
convention with a homemade sign which states his or her individual
opinion that one of the candidates for nomination is the best qualified
candidate.
Example 6: An employee, including a career SES employee, may wear a
button with a partisan political theme when the employee is not on duty
or at his or her place of work.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.403 Participation in elections.
Each employee covered under this subpart retains the right to:
(a) Register and vote in any election;
(b) Take an active part, as a candidate or in support of a
candidate, in a nonpartisan election; and
(c) Serve as an election judge or clerk, or in a similar position,
to perform nonpartisan duties as prescribed by State or local law.
Sec. 734.404 Participation in political organizations.
(a) Each employee covered under this subpart retains the right to:
(1) Participate in the nonpartisan activities of a civic, community,
social, labor, or professional organization, or of a similar
organization;
[[Page 42]]
(2) Be a member of a political party or other partisan political
group and participate in its activities to the extent consistent with
other Federal law;
(3) Attend a political convention, rally, fund-raising function, or
other political gathering; and
(4) Make a financial contribution to a political party, partisan
political group, or to the campaign committee of a candidate for
partisan political office.
(b) Subject to the provisions in Sec. 734.406, an employee covered
under this subpart may make a financial contribution to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this chapter if the head of the employee's agency
permits agency employees to make such allotments to political action
committees.
(c) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under Sec. 550.311(b) of this chapter.
Example 1: An employee, or a noncareer SES employee who is subject
to subpart D of part 734, may attend a political convention or rally
solely as a spectator. However, the employee and noncareer SES employee
may not participate in demonstrations or parades which are sponsored by
a political party, a partisan political group, or an individual who is
running for nomination to be a candidate for partisan political office.
Example 2: An employee may attend a political party's annual
barbecue, but he or she may not organize, distribute invitations to, or
sell tickets to the barbecue.
Example 3: An employee who desires to contribute to a political
action committee through an allotment personally may obtain blank direct
deposit forms from his or her payroll office. The employee may not
complete the direct deposit form while he or she is on duty, on Federal
property, or in a Federally owned or leased vehicle. The employee also
may not personally deliver his or her completed direct deposit form, or
the completed direct deposit form of another employee, to his or her
payroll office. However, the employee may mail the completed form to his
or her agency payroll office.
[61 FR 35101, July 5, 1996]
Sec. 734.405 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, or a
candidate for political party office, may appear in photographs of the
candidate's family which might appear in a political advertisement, a
broadcast, campaign literature, or similar material. A spouse or a
family member who is covered by the Hatch Act Reform Amendments also may
attend political functions with the candidate. However, the spouse or
family member may not distribute campaign literature or solicit, accept,
or receive political contributions.
Example 1: An employee who is the spouse of a candidate for
partisan political office may stand in the receiving line and sit at the
head table during a political dinner honoring the spouse.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier, but she may not distribute the flier at a
campaign rally.
Sec. 734.406 Participation in political activities while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle; prohibition.
(a) An employee covered under this subpart may not participate in
political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(b) [Reserved]
Example 1: An employee who uses his or her privately owned vehicle
on a recurrent basis for official business may place a bumper sticker on
the vehicle, as long as he or she covers the bumper sticker while the
vehicle is being used for official duties.
[[Page 43]]
Example 2: An employee who uses his or her privately owned vehicle
on official business, must cover any partisan political bumper sticker
while the vehicle is being used for official duties, if the vehicle is
clearly identified as being on official business.
Example 3: An employee or career SES employee who uses his or her
privately owned vehicle only on an occasional basis to drive to another
Federal agency for a meeting, or to take a training course, if not
required to cover a partisan political bumper sticker on his or her
vehicle.
Example 4: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 5: An employee may place a bumper sticker on his or her
privately owned vehicle and park the vehicle in a parking lot of an
agency or instrumentality of the United States Government or in a non-
Federal facility for which the employee receives a subsidy from his or
her employing agency or instrumentality.
Example 6: An employee, or noncareer SES employee who is subject to
subpart D of this part 734, may not wear partisan political buttons or
display partisan political pictures, signs, stickers, or badges while he
or she is on duty or at his or her place of work.
Example 7: An employee who contributes financially to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit forms
while he or she is on duty, in a ``room or building'' defined in
Sec. 734.101, or in a Federally owned or leased vehicle.
Example 8: An employee who contributes financially to a political
action committee may not personally deliver his or her completed direct
deposit form, or the completed direct deposit form of another employee,
to the payroll employees who would process or administer such forms.
However, the employee may mail his or her direct deposit form to his or
her agency payroll office.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]
Sec. 734.407 Use of official authority; prohibition.
An employee covered under this subpart may not use his or her
official authority or influence for the purpose of interfering with or
affecting the result of an election.
Sec. 734.408 Participation in political management and political campaigning; prohibitions.
An employee covered under this subpart may not take an active part
in political management or in a political campaign, except as permitted
by subpart D of this part.
[61 FR 35102, July 5, 1996]
Sec. 734.409 Participation in political organizations; prohibitions.
An employee covered under this subpart may not:
(a) Serve as an officer of a political party, a member of a
national, State, or local committee of a political party, an officer or
member of a committee of a partisan political group, or be a candidate
for any of these positions;
(b) Organize or reorganize a political party organization or
partisan political group;
(c) Serve as a delegate, alternate, or proxy to a political party
convention; and
(d) Address a convention, caucus, rally, or similar gathering of a
political party or partisan political group in support of or in
opposition to a candidate for partisan political office or political
party office, if such address is done in concert with such a candidate,
political party, or partisan political group.
Sec. 734.410 Participation in political fundraising; prohibitions.
An employee covered under this subpart may not:
(a) Solicit, accept, or receive political contributions; or
(b) Organize, sell tickets to, promote, or actively participate in a
fundraising activity of a candidate for partisan political office or of
a political party, or partisan political group.
Sec. 734.411 Participation in political campaigning; prohibitions.
An employee covered under this subpart may not:
(a) Take an active part in managing the political campaign of a
candidate for partisan political office or a candidate for political
party office;
(b) Campaign for partisan political office;
(c) Canvass for votes in support of or in opposition to a candidate
for partisan political office or a candidate for political party office,
if such canvassing is done in concert with such a candidate, or of a
political party, or partisan political group;
[[Page 44]]
(d) Endorse or oppose a candidate for partisan political office or a
candidate for political party office in a political advertisement,
broadcast, campaign literature, or similar material if such endorsement
or opposition is done in concert with such a candidate, political party,
or partisan political group;
(e) Initiate or circulate a partisan nominating petition.
Sec. 734.412 Participation in elections; prohibitions.
An employee covered under this subpart may not:
(a) Be a candidate for partisan political office;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places in concert with a political party, partisan political
group, or a candidate for partisan political office;
(c) Drive voters to polling places in concert with a political
party, partisan political group, or a candidate for partisan political
office.
[59 FR 48769, Sept. 23, 1994, as amended by 61 FR 35102, July 5, 1996]
Sec. 734.413 Employees of the Federal Election Commission; prohibitions.
(a) An employee of the Federal Election Commission may not request
or receive from, or give to, an employee, a Member of Congress, or an
officer of a uniformed service a political contribution.
(b) This section does not cover employee of the Federal Election
Commission who are appointed by the President by and with the advice and
consent of the Senate.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid from the Appropriation for the Executive Office of the
President
Sec. 734.501 Permitted and prohibited activities.
Except as otherwise specified in this part 734, employees who are
appointed by the President by and with the advice and consent of the
Senate are subject to the provisions of subparts B and C of this part.
Sec. 734.502 Participation in political activity while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle.
(a) This section applies to an employee:
(1) The duties and responsibilities of whose position continue
outside normal duty hours and while away from the normal duty post; and
(2) Who is--
(i) An employee paid from an appropriation for the Executive Office
of President; or
(ii) An employee appointed by the President by and with the advice
and consent of the Senate whose position is located within the United
States, who determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws;
(b) For the purposes of this subpart, normal duty hours and normal
duty post will be determined by the head of each agency or
instrumentality of the United States or District of Columbia Government.
(c) An employee described in paragraph (a) of this section may
participate, subject to any restrictions that may be imposed in
accordance with Sec. 734.104, in political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the agency or instrumentality of the United States Government
or the position of the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(d) An employee, to whom subpart E of this part does not apply, who
is not on duty may participate in political activities in rooms of the
White House or the Residence of the Vice President which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
[[Page 45]]
Example 1: An Inspector General is appointed under the Inspector
General Act of 1978, as amended. According to section 3(c) of that Act,
he or she does not qualify as an employee who determines policies to be
pursued by the United States in the nationwide administration of Federal
laws. therefore, he or she may not participate in political activities
while on duty, while wearing a uniform, badge, or insignia that
identifies his or her office or position, while in any room or building
occupied in the discharge of official duties, or while using a
Government-owned or leased vehicle or while using a privately-owned
vehicle in the discharge of official duties.
Example 2: An employee who is covered by this subpart and wears a
uniform as an incident of her office may wear the uniform while she is
giving a speech at a political fundraiser.
Example 3: The head of an executive department may hold a partisan
political meeting or host a reception which is not a fundraiser in his
conference room during normal business hours.
Example 4: An employee accompanies the Secretary of Transportation
to a political party convention as part of the Secretary's security or
administrative detail. The employee is considered to be on duty while
protecting or performing official duties for the Secretary regardless of
the nature of the function that the Secretary is attending.
Example 5: An American Ambassador overseas obtains authorization
from the Department of State to depart post in order to take a vacation
away from post. During the period she is authorized to be on vacation
away from post, she is not considered to be on duty for the purpose of
the Hatch Act Reform Amendments and may engage in any political activity
permitted under the Hatch Act Reform Amendments of 1993.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]
Sec. 734.503 Allocation and reimbursement of costs associated with political activities.
(a) The costs associated with the political activities described in
Sec. 733.502(c) of this chapter may not be paid for by money derived
from the Treasury of the United States. Costs associated with a
political activity are deemed not to be paid for by money derived from
the Treasury of the United States if the Treasury is reimbursed for the
costs within a reasonable period of time.
(b) For the purposes of this section, costs associated with a
political activity do not include any costs that the Government would
have or have incurred regardless of whether the activity was political.
Examples of such costs are:
(1) The compensation of the employee described in Sec. 734.502(a);
(2) The value of any office or other real property owned or leased
by the Government;
(3) The compensation and expenses of any Government employee that is
required in the performance of his or her duties to accompany or assist
the person engaging in the political activity; and
(4) The cost of special security arrangements for the person
engaging in the political activity, including special transportation
vehicles or methods.
(c) (1) An employee covered under this subpart must apportion the
costs of mixed travel based on the time spent on political activities
and the time spent performing official duties. Prorating the cost of
travel involves determining the ``total activity time'' which is the
amount of time actually spent by the employee in meetings, receptions,
rallies, and similar activities. Time spent in actual travel, private
study, or rest and recreation is not included in the computation of the
``total activity time''. The proration of the cost then is determined
based on how the ``total activity time'' was spent. The formula is as
follows:
Time spent in official meetings, receptions, etc. + Time spent in
political meetings, receptions, rallies = Total activity time
Time spent in official activity Total activity time =
Percentage of trip that is official
Time spent in political activity Total activity time =
Percentage of trip that is political
The percentage figure that represents the political portion of the trip
is then multiplied by the amount that would be reimbursed to the
Government if all of the travel was political. The product of that
calculation represents the amount to be paid by the political entity or
organization.
(2) The allocation method must be applied to all of the relevant
costs of mixed travel.
(3) Expenses that are associated specifically with a political
activity and
[[Page 46]]
not with any official activity must be treated as political, and
expenses associated specifically with an official activity and not with
any political activity must be treated as official.
(4) In allocating the costs of travel other than air travel, the
allocation formula should be applied to any Government maximum for that
type of expenditure.
(5) The determination of the proper amount of allocation must be
based on the facts and circumstances involved.
(6) In the event that a minor, clearly incidental percentage of the
activity of a mixed trip is devoted to either official or political
activity, e.g. less than 3%, the entire trip should be treated as if it
was wholly of the type represented by the substantial figure. The
balance should be treated as de minimis and need not be reimbursed as
political or charged as official.
(d) For any cost of a political activity of an employee that is
required to be reported to the Federal Election Commission under the
Federal Election Campaign Act (FECA) or the Presidential Election
Campaign Fund Act (PECFA), the employee shall use the same method of
allocation as used under the FECA or PECFA and regulations thereunder in
lieu of the allocation method in paragraph (c) of this section.
Example 1: The Secretary, an employee described by section
7324(b)(2) of title 5 of the United States Code, holds a catered
political activity (other than a fundraiser) in her office. Her security
detail attends the reception as part of their duty to provide security
for her. The Secretary will not be in violation of the Hatch Act Reform
Amendments if the costs of her office, her compensation, and her
security detail are not reimbursed to the Treasury. A violation of the
Hatch Act Amendments occurs if Government funds, including reception or
discretionary funds, are used to cater the political activity, unless
the Treasury is reimbursed for the cost of the catering within a
reasonable time.
Example 2: There should be no allocation between official and
political funds for a sound system rented for a single event.
Example 3: If on a mixed trip a Government employee is only entitled
to $26 per diem for food on a wholly official trip and the trip is 50%
political and 50% official, the Government share would be 50% of $26,
not 50% of the actual amount spent.
Example 4: The President is transported by special motorcade to and
from the site of the political event. The expense of the motorcade is
for special security arrangements. Thus, it would not be a violation of
the Hatch Act Reform Amendments if the costs of the security
arrangements, including the cost of the motorcade, are not reimbursed to
the Treasury.
Sec. 734.504 Contributions to political action committees through voluntary payroll allotments prohibited.
An employee described in Sec. 734.502(a) may not financially
contribute to a political action committee through a voluntary allotment
made under Sec. 550.311(b) of this title.
[61 FR 35102, July 5, 1996]
Subpart F--Employees Who Work on An Irregular or Occasional Basis
Sec. 734.601 Employees who work on an irregular or occasional basis.
An employee who works on an irregular or occasional basis or is a
special Government employee as defined in 18 U.S.C. 202(a) is subject to
the provisions of the applicable subpart of this part when he or she is
on duty.
Example: An employee appointed to a special commission or task force
who does not have a regular tour of duty may run as a partisan political
candidate, but may actively campaign only when he or she is not on duty.
Subpart G--Related Statutes and Executive Orders
Sec. 734.701 General.
In addition to the provisions regulating political activity set
forth in subparts A through G of this part, there are a number of
statutes and Executive orders that establish standards to which the
political activity of an employee, a Federal labor organization, a
Federal employee organization, and a multicandidate political committee
must conform. The list set forth in Sec. 734.702 references some of the
more significant of those statutes. It is not comprehensive and includes
only references to statutes of general applicability.
[[Page 47]]
Sec. 734.702 Related statutes and Executive orders.
(a) The prohibition against offering anything of value in
consideration of the use or promise of use of influence to procure
appointive office (18 U.S.C. 210).
(b) The prohibition against solicitation or acceptance of anything
of value to obtain public office for another (18 U.S.C. 211).
(c) The prohibition against intimidating, threatening, or coercing
voters in Federal elections (18 U.S.C. 594).
(d) The prohibition against use of official authority to interfere
with a Federal election by a person employed in any administrative
position by the United States in connection with any activity financed
in whole or in part by Federal funds (18 U.S.C. 595).
(e) The prohibition against the promise of employment, compensation,
or benefits from Federal funds in exchange for political activity (18
U.S.C. 600).
(f) The prohibition against the deprivation of or threat of
deprivation of employment in exchange for political contributions (18
U.S.C. 601).
(g) The prohibition against soliciting political contributions (18
U.S.C. 602).
(h) The prohibition against making certain political contributions
(18 U.S.C. 603).
(i) The prohibition against soliciting or receiving assessments,
subscriptions, or contributions for political purposes from persons on
Federal relief or work relief (18 U.S.C. 604).
(j) The prohibition against disclosing and receiving lists or names
of persons on relief for political purposes (18 U.S.C. 605).
(k) The prohibition against intimidating employees to give or
withhold a political contribution (18 U.S.C. 606).
(l) The prohibition against soliciting political contributions in
navy yards, forts, or arsenals (18 U.S.C. 607).
(m) The prohibition against coercing employees of the Federal
Government to engage in, or not to engage in, any political activity (18
U.S.C. 610).
(n) The prohibition against certain personnel practices (5 U.S.C.
2302).
(o) The prohibition against making, requesting, considering, or
accepting political recommendations (5 U.S.C. 3303).
(p) The prohibitions against misuse of a Government vehicle (31
U.S.C. 1344).
(q) The requirements and prohibitions stated in the Federal Election
Campaign Act (2 U.S.C. 431-455).
(r) The prohibitions against soliciting for gifts to superiors,
giving donations for such gifts, and accepting gifts from employees who
receive a lower rate of pay (5 U.S.C. 7351).
(s) The prohibitions against soliciting or accepting things of value
from specified persons (5 U.S.C. 7353).
(t) The prohibitions and requirements stated in the Ethics in
Government Act of 1978 (5 U.S.C. App.) and Executive Order 12674 (54 FR
15159-15162; 3 CFR 1989 Comp. 215-218) as modified by Executive Order
12731 (55 FR 42547-42550; 3 CFR 1990 Comp. 306-311).
PART 735--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Note: Part 1001 added to this chapter at 31 FR 873, January 22, 1966
and revised at 32 FR 11113, Aug. 1, 1967, 36 FR 6874, Apr. 9, 1971 and
61 FR 36996, July 16, 1996, supplement this part 735.
Subpart A--General Provisions
Sec.
735.101 Definitions.
735.102 Disciplinary action.
735.103 Other regulations pertaining to conduct.
Subpart B--Standards of Conduct
735.201 Gambling.
735.202 Safeguarding the examination process.
735.203 Conduct prejudicial to the Government.
Authority: 5 U.S.C. 7301; E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306.
Source: 57 FR 56434, Nov. 30, 1992, unless otherwise noted.
Subpart A--General Provisions
Sec. 735.101 Definitions.
In this part:
[[Page 48]]
Agency means an Executive agency (other than the General Accounting
Office) as defined by 5 U.S.C. 105, the Postal Service, and the Postal
Rate Commission.
Employee means any officer or employee of an agency, including a
special Government employee, but does not include a member of the
uniformed services.
Special Government employee means a ``special Government employee,''
as defined in 18 U.S.C. 202, who is employed in the executive branch,
but does not include a member of the uniformed services.
Uniformed services has the meaning given that term by 5 U.S.C.
2101(3).
Sec. 735.102 Disciplinary action.
An employee's violation of any of the regulations in subpart B of
this part may be cause for disciplinary action by the employee's agency,
which may be in addition to any penalty prescribed by law.
Sec. 735.103 Other regulations pertaining to conduct.
In addition to the standards of conduct in subpart B of this part,
an employee shall comply with the standards of ethical conduct in 5 CFR
part 2635, as well as any supplemental regulation issued by the
employee's agency under 5 CFR 2635.105. An employee's violation of those
regulations may be cause for the employee's agency to take disciplinary
action, or corrective action as that term is used in 5 CFR part 2635.
Such disciplinary action or corrective action may be in addition to any
penalty prescribed by law.
Subpart B--Standards of Conduct
Sec. 735.201 Gambling.
(a) While on Government-owned or leased property or while on duty
for the Government, an employee shall not conduct, or participate in,
any gambling activity including the operation of a gambling device,
conducting a lottery or pool, a game for money or property, or selling
or purchasing a numbers slip or ticket.
(b) This section does not preclude activities:
(1) Necessitated by an employee's official duties; or
(2) Under section 7 of Executive Order 12353 and similar agency-
approved activities.
Sec. 735.202 Safeguarding the examination process.
(a) An employee shall not, either for or without compensation,
engage in teaching, lecturing, or writing for the purpose of the
preparation of a person or class of persons for an examination of the
Office of Personnel Management or Board of Examiners for the Foreign
Service that depends on information obtained as a result of the
employee's Government employment.
(b) This section does not preclude the preparation described in
paragraph (a) of this section if:
(1) The information upon which the preparation is based has been
made available to the general public or will be made available on
request; or
(2) Such preparation is authorized in writing by the Director of the
Office of Personnel Management or his or her designee, or by the
Director General of the Foreign Service of his or her designee, as
applicable.
Sec. 735.203 Conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
PART 736--PERSONNEL INVESTIGATIONS--Table of Contents
Subpart A--Scope
Sec.
736.101 Purpose and definitions.
736.102 Notice to investigative sources.
736.103 Protecting the identity of a source.
736.104 Public availability of investigative files.
Subpart B--Investigative Requirements
736.201 Responsibilities of OPM and other Federal agencies.
Authority: Pub. L. 93-579; (5 U.S.C. 552a).
Source: 56 FR 18655, Apr. 23, 1991, unless otherwise noted.
[[Page 49]]
Subpart A--Scope
Sec. 736.101 Purpose and definitions.
(a) Purpose. The purpose of this part is to specify certain
requirements for personnel investigations conducted by OPM, and for
those conducted under delegated authority from OPM. The requirements of
this part apply to suitability and national security investigations
conducted under parts 731 and 732 of this chapter; they also apply to
investigations to determine eligibility or qualifications not covered in
parts 731 and 732 of this chapter. The requirements of this part apply
to employees in the civil service of the Executive Branch and to persons
performing contract, voluntary or indirect services for the Federal
Government, as set forth in subsection (b) below.
(b) Definitions. For the purposes of this part, (1) Federal
employment includes the following range of services performed for the
Federal government: (i) All employment in the competitive or excepted
service or the Senior Executive Service in the Executive Branch; (ii)
appointments, salaried or unsalaried, to Federal Advisory Committees or
to membership agencies; (iii) cooperative work assignments in which the
individual has access to Federal materials such as examination booklets,
or performs service for, or under supervision of, a Federal agency while
being paid by another organization such as a State or local government;
(iv) volunteer arrangements in which the individual performs service
for, or under the supervision of, a Federal agency; and (v) volunteer or
other arrangements in which the individual represents the United States
Government or any agency thereof.
(2) Agency means any authority of the Government of the United
States, whether or not it is within or subject to review by another
agency, and includes any executive department, military department,
Government corporation, Government-controlled corporation, or other
establishment in the executive branch of the Government, or any
independent regulatory agency.
(3) Personnel investigation means an investigation conducted by
written or telephone inquiries or through personal contacts to determine
the suitability, eligibility, or qualifications of individuals for
Federal employment, for work on Federal contracts, or for access to
classified information or restricted areas.
Sec. 736.102 Notice to investigative sources.
(a) The agency investigator will notify the source from whom
information is requested, whether in person or by telephone, of the
purpose for which the information is being sought and of the uses that
may be made of the information. The interviewing agent must notify each
person interviewed and each custodian of records contacted that all
information provided, including the record source's identity, may be
disclosed upon the request of the subject of the investigation.
(b) The interviewing agent may grant a pledge to keep confidential
the identity of an information source upon specific request by the
source. In addition, the agent has discretion to offer the source a
pledge of confidentiality where the agent believes that such a pledge is
necessary to obtain information pertinent to the investigation. A pledge
of confidentiality may not be assumed by the source. The interviewing
agent may not suggest to a source that the source request
confidentiality.
(c) Where information is requested by written inquiry, the form,
instructions, or correspondence used by an agency will include: (1)
Notification that all information furnished by the source, including the
source's identity, except for custodians of law enforcement or
educational records, may be disclosed upon the request of the subject of
the investigation; and (2) Space for the information source to request a
pledge that the source's identity will not be disclosed to the subject
of the investigation; or (3) An offer to make special arrangements to
obtain significant information which the source feels unable to furnish
without a promise that the source's identity will be kept confidential.
(d) A pledge of confidentiality, if granted, extends only to the
identity of the source, and to any information furnished by the source
that would reveal the identity of the source.
[[Page 50]]
Sec. 736.103 Protecting the identity of a source.
When a source is granted a promise that the source's identity will
be kept confidential, the investigative agency and all other agencies
that receive information obtained under the promise are required to take
all reasonable precautions to protect the source's identity. Each agency
will prepare for its investigators and agents implementing instructions
consistent with this part.
Sec. 736.104 Public availability of investigative files.
(a) Investigative files are records subject to the Privacy Act and
the Freedom of Information Act and are made available to requesters in
accordance with the provisions of those Acts.
(b) Requests for investigative records are to be submitted to the
Office of Personnel Management, Federal Investigations Processing
Center, FOI/PA, Boyers, Pennsylvania 16018.
Subpart B--Investigative Requirements
Sec. 736.201 Responsibilities of OPM and other Federal agencies.
(a) Unless provided otherwise by law, the investigation of persons
entering or employed in the competitive service, or by career
appointment in the Senior Executive Service, is the responsibility of
OPM.
(b) Requests for delegated investigating authority. Agencies may
request delegated authority from OPM to conduct or contract out
investigations of persons entering or employed in the competitive
service or by career appointment in the Senior Executive Service. Such
requests shall be made in writing by agency heads, or designees, and
specify the reason(s) for the request.
(c) Timing of investigations. Investigations required for positions
must be initiated within 14 days of placement in the position except
for: Positions designated Critical-Sensitive under part 732 of this
chapter must be completed preplacement, or post-placement with approval
of a waiver in accordance with Sec. 732.202(a) of this chapter; and for
positions designated Special-Sensitive under part 732 of this chapter
must be completed preplacement.
PART 752--ADVERSE ACTIONS--Table of Contents
Subpart A--Principal Statutory Requirements for Suspension for 14 Days
or Less
Sec.
752.101 Principal statutory requirements.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--Principal Statutory Requirements for Removal, Suspension for
More Than 14 Days, Reduction In Grade or Pay, or Furlough for 30 Days or
Less
752.301 Principal statutory requirements.
Subpart D--Regulatory Requirements for Removal, Suspension for More Than
14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
Subpart E--Principal Statutory Requirements for Taking Adverse Actions
Under the Senior Executive Service
752.501 Principal statutory requirements.
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
Authority: 5 U.S.C. 7504, 7514, and 7543.
Source: 45 FR 46778, July 11, 1980, unless otherwise noted.
[[Page 51]]
Subpart A--Principal Statutory Requirements for Suspension for 14 Days
or Less
Sec. 752.101 Principal statutory requirements.
This subpart incorporates the principal statutory requirements for
suspensions for 14 days or less, found in subchapter II of chapter 75 of
title 5, United States Code.
CHAPTER 75--ADVERSE ACTIONS
Subchapter I--Suspension for 14 Days or Less
Sec. 7501. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an individual in the competitive service who
is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous employment
in the same or similar positions under other than a temporary
appointment limited to 1 year or less; and
(2) ``suspension'' means the placing of an employee, for
disciplinary reasons, in a temporary status without duties and pay.
Sec. 7502. Actions covered
This subchapter applies to a suspension for 14 days or less, but
does not apply to a suspension under section 7521 or 7532 of this title
or any action initiated under section 1206 of this title.
Sec. 7503. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 14 days or less for such
cause as will promote the efficiency of the service (including
discourteous conduct to the public confirmed by an immediate
supervisor's report of four such instances within any one-year period or
any other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days or less is
proposed is entitled to--
(1) an advance written notice stating the specific reasons for the
proposed action;
(2) a reasonable time to answer orally and in writing and to furnish
affidavits and other documentary evidence in support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the
earliest practicable date.
(c) Copies of the notice of proposed action, the answer of the
employee if written, a summary thereof if made orally, the notice of
decision and reasons therefor, and any order effecting the suspension,
together with any supporting material, shall be maintained by the agency
and shall be furnished to the Merit Systems Protection Board upon its
request and to the employee affected upon the employee's request.
Sec. 7504. Regulations
The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec. 752.201 Coverage.
(a) Actions covered. This subpart covers suspension for 14 days or
less.
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completd a
probationary or trial period;
(2) An employee in the competitive service serving in an appointment
which requires no probationary or trial period, and who has completed 1
year of current continuous employment in the same or similar positions
under other than a temporary appointment limited to 1 year or less;
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter;
(4) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and still occupies that position;
(5) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(6) An employee of the Government Printing Office.
(c) Exclusions. This subpart does not apply to a suspension for 14
days or less:
(1) Of an administrative law judge under 5 U.S.C. 7521;
(2) Taken for national security reasons under 5 U.S.C. 7531;
(3) Taken under a provision of statute, other than one codified in 5
U.S. Code, which excepts the action from subchapter I, chapter 75 of
title 5, U.S. Code;
(4) Of a reemployed annuitant; or
[[Page 52]]
(5) Of a National Guard Technician.
(d) Definitions. In this subpart--
(1) Day means a calendar day.
(2) Current continuous employment means a period of employment
immediately preceding a suspension action in the same or similar
positions without a break in Federal civilian employment of a workday.
(3) Similar positions mean positions in which the duties performed
are similar in nature and character and require substantially the same
or similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue interruption
to the work.
(4) Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
[45 FR 46778, July 11, 1980, as amended at 46 FR 12191, Feb. 13, 1981;
53 FR 21622, June 9, 1988; 57 FR 20043, May 11, 1992; 58 FR 13192, Mar.
10, 1993]
Sec. 752.202 Standard for action.
(a) An agency may take action under this subpart only as set forth
in 5 U.S.C. 7503(a).
(b) An agency may not take a suspension against an employee on the
basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.203 Procedures.
(a) Employee entitlements. An employee under this subpart whose
suspension is proposed under this subpart is entitled to the procedures
provided in 5 U.S.C. 7503(b).
(b) Notice of proposed action. The notice of proposal shall inform
the employee of his or her right to review the material which is relied
on to support the reasons for action given in the notice.
(c) Time to answer. The employee shall be given a reasonable time to
answer but not less than 24 hours.
(d) Representation. Section 7503(b)(3) of title 5 of the United
States Code provides that an employee covered by this part whose
suspension is proposed in entitled to be represented during the action
by an attorney or other representative. An agency may disallow as an
employee's representative an individual whose activities as a
representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(e) Agency decision. In arriving at its written decision, the agency
shall consider only the reasons specified in the notice of proposed
action and shall consider any answer of the empoloyee and/or his or her
representative made to a designated official. The agency shall deliver
the notice of decision to the employee at or before the time the action
will be effective.
(f) Grievances. The employee may file a grievance through an agency
administrative grievance system (if applicable) or, if the suspension
falls within the coverage of an applicable negotiated grievance
procedure, an employee in an exclusive bargaining unit may file a
grievance only under that procedure. Sections 7114(a)(5) and 7121(b)(3)
of title 5 U.S.C., and the terms of any collective bargaining agreement,
govern representation for employees in an exclusive bargaining unit who
grieve a suspension under this subpart through the negotiated grievance
procedure.
(g) Agency records. The agency shall maintain copies of the items
specified in 5 U.S.C. 7503(c) and shall furnish them upon request as
required by that subsection.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21622, June 9, 1988; 60
FR 47040, Sept. 11, 1995]
Subpart C--Principal Statutory Requirements for Removal, Suspension for
More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
Sec. 752.301 Principal statutory requirements.
This subpart incorporates the principal statutory requirements in
subchapter II of chapter 75 of title 5, United States Code, for removal,
suspension for more than 14 days, reduction in grade or pay, or furlough
for 30 days or less.
[[Page 53]]
CHAPTER 75--ADVERSE ACTIONS
Subchapter II--Removal Suspension for More Than 14 Days, Reduction in
Grade or Pay, or Furlough for 30 Days or Less
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) An individual in the competitive service--
(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service who has completed
1 year of current continuous service in the same or similar positions--
(i) in an executive agency; or
(ii) in the United States Postal Service or Postal Rate Commission;
and
(C) an individual in the excepted service other than a preference
eligible--
(i) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the
same or similar positions in an executive agency under other than a
temporary appointment limited to 2 years or less;
(2) ``suspension'' has the meaning as set forth in section 7501(2)
of this title;
(3) ``grade'' means a level of classification under a position
classification system;
(4) ``pay'' means the rate of basic pay fixed by law or
administrative action for the position held by an employee; and
(5) ``furlough'' means the placing of an employee in a temporary
status without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
(b) This subchapter does not apply to an employee--
(1) whose appointment is made by and with the advice and consent of
the Senate;
(2) whose position has been determined to be of a confidential,
policy-determining, policy-making or policy-advocating character by--
(A) the President for a position that the President has excepted
from the competitive service;
(B) the Office of Personnel Management for a position that the
Office has excepted from the competitive service; or
(C) the President or the head of an agency for a position excepted
from the competitive service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil Service Retirement
and Disability Fund, or the Foreign Service Retirement and Disability
Fund, based on the service of such employee;
(5) who is described in section 8337(h)(1), relating to technicians
in the National Guard;
(6) who is a member of the Foreign Service, as described in section
103 of the Foreign Service Act of 1980;
(7) Whose position is within the Central Intelligence Agency or the
General Accounting Office;
(8) Whose position is within the United States Postal Service, the
Postal Rate Commission, the Panama Canal Commission, the Tennessee
Valley Authority, the Federal Bureau of Investigation, the National
Security Agency, the Defense Intelligence, Agency, or an intelligence
activity of a military department covered under section 1590 of title
10, unless subsection (a)(1)(B) of this section or section 1005(a) of
title 39 is the basis for this subchapter's applicability;
(9) Who is described in section 5102(c)(11) of this title; or
(10) Who holds a position with the Veterans Health Administration
which has been excluded from the competitive service by or under a
provision of title 38, unless such employee was appointed to such
position under section 7401(3) of such title.
(c) The Office may provide for the application of this subchapter to
any position or group of positions excepted from the competitive service
by regulations of the Office which is not otherwise covered by this
subchapter.
Sec. 7512. Actions covered
This Subchapter applies to--
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
but does not apply to--
(A) a suspension or removal under section 7532 of this title,
(B) a reduction-in-force action under section 3502 of this title,
(C) the reducation in grade of a supervisor or manager who has not
completed the probationary period under section 3321(a)(2) of this title
if such reduction is to the grade held immediately before becoming such
a supervisor or manager,
(D) a reduction in grade or removal under section 4303 of this
title, or
(E) an action initiated under section 1206 or 7521 of this title.
Sec. 7513. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this subchapter
against an employee only for such cause as will promote the efficiency
of the service.
[[Page 54]]
(b) An employee against whom an action is proposed is entitled to--
(1) at least 30 days' advance written notice, unless there is
reasonable cause to believe the employee has committed a crime for which
a sentence of imprisonment may be imposed, stating the specific reasons
for the proposed action;
a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in
support of the answer;
(3) be represented by an attorney or other representative, and
(4) a written decision and the specific reasons therefore at the
earliest practicable date.
(c) An agency may provide, by regulation, for a hearing which may be
in lieu of or in addition to the opportunity to answer provided under
subsection (b)(2) of this section.
(d) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701 of this title.
(e) Copies of the notice of proposed action, the answer of the
employee when written, a summary thereof when made orally, the notice of
decision and reasons therefor, and an order effecting an action covered
by this subchapter, together with any supporting material, shall be
maintained by the agency and shall be furnished to the Board upon its
request and to the employee affected upon the employee's request.
Sec. 7514. Regulations
The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter, except as it concerns any
matter with respect to which the Merit Systems Protection Board may
prescribe regulations.
[45 FR 46778, July 11, 1980, as amended at 57 FR 20043, May 11, 1992; 58
FR 13192, Mar. 10, 1993]
Subpart D--Regulatory Requirements for Removal, Suspension for More Than
14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
Sec. 752.401 Coverage.
(a) Adverse actions covered. This subpart applies to the following
actions:
(1) Removals;
(2) Suspensions for more than 14 days, including indefinite
suspensions;
(3) Reductions in grade;
(4) Reductions in pay; and
(5) Furloughs of 30 days or less.
(b) Actions excluded. This subpart does not apply to:
(1) An action imposed by the Merit Systems Protection Board under
the authority of 5 U.S.C. 1206;
(2) The reduction in grade of a supervisor or manager who has not
completed the probatinary period under 5 U.S.C. 3321(a)(2) if such a
reduction is to the grade held immediately before becoming a supervisor
or manager;
(3) A reduction-in-force action under 5 U.S.C. 3502;
(4) A reduction in grade or removal under 5 U.S.C. 4303;
(5) An action against an administrative law judge under 5 U.S.C.
7521;
(6) A suspension or removal under 5 U.S.C. 7532;
(7) Actions taken under provision of statute, other than one
codified in title 5, United States Code, which excepts the action from
subchapter II of chapter 75 of title 5, United States Code;
(8) Action that entitles an employee to grade retention under part
536 of this chapter, and an action to terminate this entitlement;
(9) A voluntary action by the employee;
(10) Action taken or directed by the Office of Personnel Management
under part 731 or part 754 of this chapter;
(11) Termination of appointment on the expiration date specified as
a basic condition of employment at the time the appointment was made;
(12) Action that terminates a temporary or term promotion and
returns the employee to the position from which temporarily promoted, or
to a different position of equivalent grade and pay, if the agency
informed the employee that it was to be of limited duration;
(13) Cancellation of a promotion to a position not classified prior
to the promotion;
(14) Placement of an employee serving on an intermittent or seasonal
basis in a temporary nonduty, nonpay status in accordance with
conditions established at the time of appointment; or
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary to law or regulation.
(c) Employees covered. This subpart covers:
[[Page 55]]
(1) An employee in the competitive service who has completed a
probationary or trial period;
(2) An employee in the competitive service serving in an appointment
that requires no probationary or trial period, and who has completed 1
year of current continuous service in the same or similar positions
under other than a temporary appointment limited to 1 year or less;
(3) An employee in the excepted service who is a preference eligible
in an executive agency as defined at section 105 of title 5, United
States Code, the U.S. Postal Service, or the Postal Rate Commission and
who has completed 1 year of current continuous service in the same or
similar positions;
(4) A Postal Service employee covered by Public Law 100-90 who has
completed 1 year of current continuous service in the same or similar
positions and who is either a supervisory or management employee or an
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at section 105 of title, 5,
United States Code, and who has completed 2 years of current continuous
service in the same or similar positions under other than a temporary
appointment limited to 2 years or less;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter;
(7) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and who still occupies that position;
(8) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(9) An employee of the Government Printing Office.
(d) Employees excluded. This subpart does not apply to:
(1) An employee whose appointment is made by and with the advice and
consent of the Senate;
(2) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character by: the President for a position that the President has
excepted from the competitive service; the Office of Personnel
Management for a position that the Office has excepted from the
competitive service (Schedule C); or the President or the head of an
agency for a position excepted from the competitive service by statute;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) A technician in the National Guard described in section
8337(h)(1) of title 5, United States Code, who is employed under section
709(b) of title 32, United States Code;
(6) A Foreign Service member as described in section 103 of the
Foreign Service Act of 1980;
(7) An employee of the Central Intelligence Agency or the General
Accounting Office;
(8) An employee of the Veterans Health Administration (Department of
Veterans Affairs) in a position which has been excluded from the
competitive service by or under a provision of title 38, United States
Code, unless the employee was appointed to the position under section
7401(3) of title 5, United States Code;
(9) A nonpreference eligible employee with the U.S. Postal Service,
the Postal Rate Commission, the Panama Canal Commission, the Tennessee
Valley Authority, the Federal Bureau of Investigation, the National
Security Agency, the Defense Intelligence Agency, or an intelligence
activity of a military department covered under section 1590 of title
10, United States Code;
(10) An employee described in section 5102(c)(11) of title 5, United
States Code, who is an alien or noncitizen occupying a position outside
the United States;
(11) A nonpreference eligible employee serving a probationary or
trial period under an initial appointment in the excepted service
pending conversion to the competitive service; and
(12) An employee whose agency or position has been excluded from the
appointing provisions of title 5, United States Code, by separate
statutory authority in the absence of any provision
[[Page 56]]
to place the employee within the coverage of chapter 75 of title 5,
United States Code.
[53 FR 21622, June 9, 1988, as amended at 58 FR 13192, Mar. 10, 1993]
Sec. 752.402 Definitions.
(a) Day means a calendar day.
(b) Current continuous employment means a period of employment or
service immediately preceding an adverse action in the same or similar
postions without a break in Federal civilian employment of a workday.
(c) Furlough means the placing of an employee in a temporary status
without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
(d) Grade means a level of classification under a position
classification system.
(e) Indefinite suspension means the placing of an employee in a
temporary status without duties and pay pending investigation, inquiry,
or further agency action. The indefinite suspension continues for an
indeterminate period of time and ends with the occurrence of the pending
conditions set forth in the notice of action which may include the
completion of any subsequent administrative action.
(f) Pay means the rate of basic pay fixed by law or administrative
action for the position held by the employee, that is, the rate of pay
before any deductions and exclusive of additional pay of any kind.
(g) Similar positions mean positions in which the duties performed
are similar in nature and character and require substantially the same
or similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue interruption
to the work.
(h) Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay for more than 14
days.
[53 FR 21623, June 9, 1988]
Sec. 752.403 Standard for action.
(a) An agency may take an adverse action, including a performance-
based adverse action, under this subpart only such cause as will promote
the efficiency of the service.
(b) An agency may not take an adverse action against an employee on
the basis of any reason prohibited by 5 U.S.C. 2302.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21623, June 9, 1988]
Sec. 752.404 Procedures.
(a) Statutory entitlements. An employee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7513(b).
(b) Notice of proposed action. (1) The notice of proposal shall
inform the employee of his or her right to review the material which is
relied on to support the reasons for action given in the notice. The
agency may not use material that cannot be disclosed to the employee of
his or her representative or designated physician under Sec. 297.204(c)
of this chapter to support the reasons in the notice.
(2) When some but not all employees in a given competitive level are
being furloughed, the notice of proposal shall state the basis for
selecting a particular employee for furlough, as well as the reasons for
the furlough.
(3) Under ordinary circumstances, an employee whose removal or
suspension, including indefinite suspension, has been proposed shall
remain in a duty status in his or her regular position during the
advance notice period. In those rare circumstances where the agency
determines that the employee's continued presence in the workplace
during the notice period may pose a threat to the employee or others,
result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, the agency may elect one or
a combination of the following alternatives:
(i) Assigning the employee to duties where he or she is no longer a
threat to safety, the agency mission, or to Government property;
(ii) Allowing the employee to take leave, or carrying him or her in
an appropriate leave status (annual, sick, leave without pay, or absence
without leave) if the employee has absented himself or herself from the
worksite without requesting leave;
[[Page 57]]
(iii) Curtailing the notice period when the agency can invoke the
provisions of Sec. 752.404(d)(1) of this part, the ``crime provision.''
This provision may be invoked even in the absence of judicial action if
the agency has reasonable cause to believe that the employee has
committed a crime for which a sentence of imprisonment may be imposed;
or
(iv) Placing the employee in a paid, nonduty status for such time as
is necessary to effect the action.
(c) Employee's answer. (1) The agency shall give the employee a
reasonable amount of official time to review the material relied on to
support its proposal and to prepare an answer and to secure affidavits,
if he or she is otherwise in an active duty status.
(2) The agency shall designate an official to hear the employee's
oral answer who has authority either to make or recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides one in its regulations in
accordance with paragraph (g) of this section.
(3) If the employee wishes the agency to consider any medical
condition which may contribute to a conduct, performance, or leave
problem, the employee shall be given a reasonable time to furnish
medical documentation (as defined in Sec. 339.102 of this chapter) of
the condition. Whenever possible, the employee shall supply such
documentation within the time limits allowed for an answer. After its
review of the medical documentation supplied by the employee, the agency
may, if authorized, require a medical examination under the criteria of
Sec. 339.301(a)(3) and the procedures of Sec. 339.302 of this chapter,
or otherwise, at its option, offer a medical examination in accordance
with the criteria of Sec. 339.301(d) and procedures of Sec. 339.302 of
this chapter. If the employee has the requisite years of service under
the Civil Service Retirement System or the Federal Employees Retirement
System, the agency shall provide information concerning disability
retirement. The agency shall be aware of the affirmative obligations of
the provisions of 29 CFR 1613.704, which require reasonable
accommodation of a qualified employee who is handicapped.
(d) Exceptions. (1) Section 7513(b) of title 5 of the United States
Code authorizes an exception to the 30 days' advance written notice when
the agency has reasonable cause to believe that the employee has
committed a crime for which a sentence of imprisonment may be imposed
and is proposing a removal or suspension (including indefinite
suspension). The agency may require the employee to furnish any answer
to the proposed action, and affidavits and other documentary evidence in
support of the answer, within such time as would be reasonable, but not
less than 7 days. When the circumstances require that the employee be
kept away from the worksite, the agency may place him or her in a
nonduty status with pay for such time as is necessary to effect the
action.
(2) The advance written notice and opportunity to answer are not
necessary for furlough without pay due to unforeseeable circumstances,
such as sudden breakdowns in equipment, acts of God, or sudden
emergencies requiring immediate curtailment of activities.
(e) Representation. Section 7513(b)(3) of title 5 of the United
States Code provides that an employee covered by this part is entitled
to be represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or official position would
give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(f) Agency decision. In arriving at its decision, the agency shall
not consider any reasons for action other than those specified in the
notice of proposed action. It shall consider any answer of the employee
and/or his or her representative made to a designated official and any
medical documentation furnished under paragraph (c) of this section. The
agency shall deliver the notice of decision to the employee at or before
the time the action will be effective, and advise the employee of appeal
rights.
[[Page 58]]
(g) Hearing. Under 5 U.S.C. 7513(c), the agency may in its
regulations provide a hearing in place of or in addition to the
opportunity for written and oral answer.
(h) Applications for disability retirement. Section 831.501(d) of
this chapter provides that an employee's application for disability
retirement shall not preclude or delay any other appropriate personnel
action. Section 831.1203 of this chapter sets forth the basis under
which an agency shall file an application for disability retirement on
behalf of an employee.
[45 FR 46778, July 11, 1980, as amended at 48 FR 19349, Apr. 29, 1983;
48 FR 45526, Oct. 6, 1983; 49 FR 1330, Jan. 11, 1984; 53 FR 21623, June
9, 1988]
Sec. 752.405 Appeal and grievance rights.
(a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an
employee against whom an action is taken under this subpart is entitled
to appeal to the Merit Systems Protection Board.
(b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a
matter covered by this subpart falls within the coverage of an
applicable negotiated grievance procedure, and employee may elect to
file a grievance under that procedure or appeal to the Merit Systems
Protection Board under 5 U.S.C. 7701, but not both. 5 U.S.C. 7114(a)(5)
and 7121(b)(3), and the terms of an applicable collective bargaining
agreement, govern representation for employees in an exclusive
bargaining unit who grieve a matter under this subpart through the
negotiated grievance procedure.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21624, June 9, 1988]
Sec. 752.406 Agency records.
The agency shall maintain copies of the items specified in 5 U.S.C.
7513(e) and shall furnish them upon request as required by that
subsection.
Subpart E--Principal Statutory Requirements for Taking Adverse Actions
Under the Senior Executive Service
Sec. 752.501 Principal statutory requirements.
This subpart sets forth for the benefit of the user the statutory
requirements of subchapter V of Chapter 75 for suspension for more than
14 days and removal from the civil service. (5 U.S.C. 7541-7543)
``Sec. 7541. Definitions
``For the purpose of this subchapter--
``(1) `employee' means a career appointee in the Senior Executive
Service who--
``(A) has completed the probationary period prescribed under section
3393(d) of this title; or
``(B) was covered by the provisions of subchapter II of this chapter
immediately before appointment to the Senior Executive Service; and
``(2) `suspension' as the meaning set forth in section 7501(2) of
this title.
``Sec. 7542. Actions covered
``This subchapter applies to a removal from the civil service or
suspension for more than 14 days, but does not apply to an action
initiated under section 1206 of this title, to a suspension or removal
under section 7532 of this title, or to a removal under section 3592 or
3595 of this title.
``Sec. 7543. Cause and procedure
``(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this subchapter
against an employee only for misconduct, neglect of duty, malfeasance,
or failure to accept a directed reassignment or to accompany a position
in a transfer of function.
``(b) An employee against whom an action covered by this subchapter
is proposed is entitled to--
``(1) at least 30 days' advance written notice, unless there is
reasonable cause to believe that the employee has committed a crime for
which a sentence of imprisonment can be imposed, stating specific
reasons for the proposed action;
``(2) a reasonable time, but not less than 7 days, to answer orally
and in writing and to
[[Page 59]]
furnish affidavits and other documentary evidence in support of the
answer;
``(3) be represented by an attorney or other representative; and
``(4) a written decision and specific reasons therefor at the
earliest practicable date.
``(c) An agency may provide, by regulation, for a hearing which may
be in lieu of or in addition to the opportunity to answer provided under
subsection (b)(2) of this section.
``(d) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701 of this title.
``(e) Copies of the notice of proposed action, the answer of the
employee when written, and a summary thereof when made orally, the
notice of decision and reasons therefor, and any order effecting an
action covered by this subchapter, together with any supporting
material, shall be maintained by the agency and shall be furnished to
the Merit Systems Protection Board upon its request and to the employee
affected upon the employee's request.''.
[45 FR 46778, July 11, 1980, as amended at 52 FR 34624, Sept. 14, 1987]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
Source: 52 FR 34624, Sept. 14, 1987, unless otherwise noted.
Sec. 752.601 Coverage.
(a) Adverse actions covered. This subpart applies to suspensions for
more than 14 days and removals from the civil service as set forth in 5
U.S.C. 7542.
(b) Actions excluded. (1) An agency may not take a suspension action
of 14 days or less.
(2) This subpart does not apply to actions taken under 5 U.S.C.
1206(g), 3592, 3595, or 7532.
(c) Employees covered. This subpart covers the following appointees:
(1) A career appointee--
(i) Who has completed the probationary period in the Senior
Executive Service;
(ii) Who is not required to serve a probationary period in the
Senior Executive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(2) A limited term or limited emergency appointee--
(i) Who received the limited appointment without a break in service
in the same agency as the one in which the employee held a career or
career-conditional appointment (or an appointment of equivalent tenure
as determined by the Office of Personnel Management) in a permanent
civil service position outside the Senior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(d) Employees excluded. This subpart does not cover an appointee who
is serving as a reemployed annuitant.
Sec. 752.602 Definitions.
In this subpart--
Career appointee, limited term appointee, and limited emergency
appointee have the meaning given in 5 U.S.C. 3132(a).
Day means calendar day.
Suspension has the meaning given in 5 U.S.C. 7501(2).
Sec. 752.603 Standard for action.
(a) An agency may take an adverse action under this subpart only for
reasons of misconduct, neglect of duty, malfeasance., or failure to
accept a directed reassignment or to accompany a position in a transfer
of function.
(b) An agency may not take an adverse action under this subpart on
the basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.604 Procedures.
(a) Applicability. The procedures provided in 5 U.S.C. 7543(b) apply
to any appointee covered by this subpart.
(b) Notice of proposed action. (1) The notice of proposed action
shall inform the appointee of his or her right to review the material
that is relied on to support the reasons for action given in the notice.
(2) The agency may not use material that cannot be disclosed to the
appointee or to the appointee's representative or designated physician
under Sec. 297.204(c) of this chapter to support the reasons in the
notice.
[[Page 60]]
(3) Under ordinary circumstances, an appointee whose removal has
been proposed shall remain in a duty status in his or her regular
position during the advance notice period. In those rare circumstances
when the agency determines that the appointee's continued presence in
the work place during the notice period may pose a threat to the
appointee or others, result in loss of or damage to Government property,
or otherwise jeopardize legitimate Government interests, the agency
shall consider whether any of the following alternatives is feasible:
(i) Assigning the appointee to duties where he or she is no longer a
threat to safety, the agency mission, or Government property;
(ii) Placing the appointee on leave with his or her consent;
(iii) Carrying the appointee on appropriate leave (annual or sick
leave, leave without pay, or absence without leave) if he or she is
voluntarily absent for reasons not originating with the agency; or
(iv) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d) of this section (the ``crime provision'').
(4) If none of the alternatives in paragraph (b)(3) of this section,
is available, agencies may consider placing the appointee in a paid,
nonduty status during all or part of the advance notice period.
(c) Appointee's answer. (1) The agency shall give the appointee a
reasonable amount of official time to review the material relied on to
support its proposed action, to prepare an answer orally and in writing,
and to secure affidavits, if the appointee is in an active duty status.
(2) The agency shall designate an official to hear the appointee's
oral answer who has authority either to make or to recommend a final
decision on the proposed adverse action.
(3) The right to answer orally in person does not include the right
to a formal hearing with examination of witnesses unless the agency
provides for a formal hearing in its regulations in accordance with
paragraph (g) of this section.
(4) If the appointee wishes the agency to consider any medical
condition that may have affected the basis for the adverse action, the
appointee shall be given reasonable time to furnish medical
documentation of the condition. The same procedures that are applicable
in Sec. 752.404(c)(3) of this chapter are also applicable for an
appointee in the Senior Executive Service.
(d) Exception. Section 7543(b)(1) of title 5 of the United States
Code authorizes an exception to the 30 days' advance written notice when
the crime provision is invoked. This provision may be invoked even in
the absence of judicial action if the agency has reasonable cause to
believe that the appointee has committed a crime for which a sentence of
imprisonment may be imposed. The agency may require the appointee to
furnish any answer to the proposed action, and affidavits and other
documentary evidence to support the answer, within such time as under
the circumstances would be reasonable, but not less than 7 days. When
the circumstances require immediate action, the agency may place the
appointee in a nonduty status with pay for such time as is necessary to
effect the action.
(e) Representation. (1) Under 5 U.S.C. 7543(b)(3), an appointee
covered by this subpart is entitled to be represented by an attorney or
other representative.
(2) An agency may disallow as an appointee's representative--
(i) An individual whose activities as a representative would cause a
conflict of interest or position;
(ii) An employee of the agency whose release from his or her
official position would give rise to unreasonable costs; or
(iii) An employee of the agency whose priority work assignments
preclude the employee's release.
(f) Agency decision. In arriving at its written decision, the agency
may consider only the reasons specified in the notice of proposed
action. The agency shall consider any reply of the appointee or the
appointee's representative made to a designated official and any medical
documentation furnished under paragraph (c) of this section. The agency
shall deliver the notice of decision to the appointee at or before the
time the action will be effective. The
[[Page 61]]
notice of decision shall inform the appointee of his or her appeal
rights.
(g) Hearing. Under 5 U.S.C. 7543(c), the agency may, in its
regulations, provide a hearing in place of or in addition to the
opportunity for written and oral reply.
Sec. 752.605 Appeal rights.
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an
action is taken under this subpart is entitled to appeal to the Merit
Systems Protection Board.
(b) A limited term or limited emergency appointee who is covered
under Sec. 752.601(c)(2) also may appeal an action taken under this
subpart to the Merit Systems Protection Board.
Sec. 752.606 Agency records.
The agency shall maintain copies of the adverse action record items
specified in 5 U.S.C. 7543(e) and furnish them upon request as required
by that subsection.
PART 754--[RESERVED]
PART 771--AGENCY ADMINISTRATIVE GRIEVANCE SYSTEM--Table of Contents
Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR 1945-
1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969 Comp., p. 306.
Sec. 771.101 Continuation of Grievance Systems.
Each administrative grievance system in operation as of October 11,
1995, that has been established under former regulations under this part
must remain in effect until the system is either modified by the agency
or replaced with another dispute resolution process.
[60 FR 47040, Sept. 11, 1995]
PART 772--INTERIM RELIEF--Table of Contents
Subpart A--General
Sec.
772.101 Basic authority.
772.102 Interim personnel actions.
Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.
Source: 57 FR 3712, Jan. 31, 1992, unless otherwise noted.
Subpart A--General
Sec. 772.101 Basic authority.
This part establishes a mechanism for agencies to provide interim
relief to employees and applicants for employment who prevail in an
initial decision issued by the Merit Systems Protection Board (MSPB) as
required by the Whistleblower Protection Act of 1989, Pub. L. 101-12
(codified at 5 U.S.C. 7701(b)(2)(A)). The interim relief provisions of
the law are applicable whether or not alleged reprisal for
whistleblowing is at issue in an appeal to MSPB.
Sec. 772.102 Interim personnel actions.
When an employee or applicant for employment appeals an action to
MSPB and the appeal results in an initial decision by an MSPB
administrative judge granting interim relief under 5 U.S.C.
7701(b)(2)(A) and a petition for review of the initial decision is filed
(or will be filed) with the full Board under 5 U.S.C. 7701(e)(1)(A), the
agency shall provide the relief ordered in the initial decision by
taking an interim personnel action subject to the following terms:
(a) Interim personnel actions shall be made effective upon the date
of issuance of the initial decision and must be initiated on or before
the date of a petition for review by the agency or within a reasonable
period after the date it becomes aware of a petition for review by the
appellant;
(b) The relief provided by interim personnel actions shall end:
(1) When the full Board issues a final decision on a petition for
review filed by an applicant for employment, employee, and/or agency
under 5 U.S.C. 7701(e)(1)(A),
(2) When the initial decision becomes final pursuant to an action of
the full Board or pursuant to a decision by an applicant for employment,
employee, and/or agency to withdraw (or change intentions to file) any
petition for review filed under 5 U.S.C. 7701(e)(1)(A), or
(3) When the applicant for employment or employee requests or
reaches
[[Page 62]]
agreement with the agency that the interim relief ordered in the initial
decision be cancelled;
(c) Interim relief shall entitle the applicant for employment or
employee to the same compensation and benefits he or she would receive
if the relief effected had not been on an interim basis except as
provided in paragraph (f) of this section;
(d) An interim personnel action shall not be taken if the MSPB
administrative judge, pursuant to 5 U.S.C. 7701(b)(2)(A)(i), determines
that granting interim relief is not appropriate;
(e) An interim personnel action under this part shall not entitle
the applicant for employment or employee to an award of back pay or
attorney fees.
[57 FR 3712, Jan. 31, 1992, as amended at 59 FR 36353, July 18, 1994; 59
FR 65704, Dec. 21, 1994]
PART 792--FEDERAL EMPLOYEES' HEALTH AND COUNSELING PROGRAMS--Table of Contents
Subpart A--Regulatory Requirements for Alcoholism and Drug Abuse
Programs and Services for Federal Civilian Employees
Sec.
792.101 Statutory requirements.
792.102 General.
792.103 Coverage.
792.104 Responsibilities of the Office of Personnel Management.
792.105 Agency responsibilities.
Subpart B--[Reserved]
Authority: Sec. 201 of Pub. L 91-616, 84 Stat. 1849, as amended and
transferred to sec. 520 of the Public Health Services Act by sec.
2(b)(13) of Pub. L. 98-24 (42 U.S.C. 290dd-1) and sec. 413 of Pub. L.
92-255, 86 Stat. 84, as amended and transferred to sec. 525 of the
Public Health Service Act by sec. 2(b)(16)(A) of Pub. L. 98-24 (42
U.S.C. 290ee-1).
Subpart A--Regulatory Requirements for Alcoholism and Drug Abuse
Programs and Services for Federal Civilian Employees
Sec. 792.101 Statutory requirements.
Sections 290dd-1 and 290ee-1 of 42 United States Code, provide that
the Office of Personnel Management shall be responsible for developing
and maintaining, in cooperation with the Secretary of the Department of
Health and Human Services, and with other Federal departments and
agencies, appropriate prevention, treatment, and rehabilitation programs
and services for Federal civilian employees with alcohol and/or drug
problems. To the extent feasible, agencies are encouraged to extend
services to families of alcohol and/or drug abusing employees and to
employees who have family members who have alcohol and/or drug problems.
Such programs and services shall make optimal use of existing government
facilities, services, and skills.
[50 FR 16692, Apr. 29, 1985]
Sec. 792.102 General.
It is the policy of the Federal Government to offer appropriate
prevention, treatment, and rehabilitation programs and services for
Federal civilian employees with alcohol and/or drug problems. Short-term
counseling and/or referral, or offers thereof, shall constitute the
appropriate prevention, treatment, and rehabilitation programs and
services for alcohol abuse, alcoholism, and/or drug abuse required under
42 U.S.C. 290dd-1(a) and 290ee-1(a). Federal departments and agencies
must establish programs to assist employees with these problems in
accordance with the legislation cited in Sec. 792.101.
[50 FR 16692, Apr. 29, 1985]
Sec. 792.103 Coverage.
This part applies to all positions in Executive agencies as defined
in section 105 of title 5 of the United States Code, and to those
positions in the legislative and judicial branch of the Federal
Government which are in the competitive service.
[49 FR 27921, July 9, 1984]
Sec. 792.104 Responsibilities of the Office of Personnel Management.
OPM shall provide overall leadership for the Government-wide
alcoholism and drug abuse program in cooperation with the Secretary of
Health and Human Services. To accomplish this, OPM shall develop and
issue policy and
[[Page 63]]
program guidance, provide technical assistance to agencies, and
determine the overall effectiveness of the Government-wide program, as
well as those programs at individual agencies, based on program
information required of agencies.
[49 FR 27921, July 9, 1984]
Sec. 792.105 Agency responsibilities.
(a) Agencies shall establish and administer programs through which
practitioners who are knowledgeable in counseling and referral services
can offer and provide employees who have alcohol and/or drug problems
short-term counseling and/or referrals for long-term counseling or
treatment.
(b) Agencies shall issue internal instructions implementing the
requirements of 42 U.S.C. 290dd-1(a) and 290ee-1(a) and this regulation.
(c) Whenever a manager/supervisor becomes aware that a Federal
employee's use of alcohol and/or drugs may be contributing to a
performance or conduct deficiency, the manager/supervisor shall
recommend counseling and refer the employee to the agency counseling
program. If an employee fails to participate in any rehabilitative
program or, having participated, the employee fails to bring conduct or
performance up to satisfactory level, the agency shall evaluate the
employee accordingly and initiate an appropriate performance-based or
adverse action.
(d) As requested, agencies shall annually submit a report to OPM on
their counseling activities for the past fiscal year at a time, and in a
manner, set by OPM.
[49 FR 27921, July 9, 1984, as amended at 50 FR 16692, Apr. 29, 1985]
Subpart B--[Reserved]
PART 831--RETIREMENT--Table of Contents
Subpart A--Administration and General Provisions
Sec.
831.101 Administration.
831.102 Basic records.
831.103 Evidence.
831.104 Application.
831.105 Computation of interest.
831.106 Disclosure of information.
831.107 Computation of time.
831.108 Major reorganization reduction in force, or transfer of
function.
831.109 Initial decision and reconsideration.
831.110 Appeals.
831.111 Employee deductions and agency contributions.
831.112 Definitions of employee.
831.113 Payments to children.
Subpart B--Coverage
831.201 Exclusions from retirement coverage.
831.202 Continuation of coverage for food service employees of the
House of Representatives.
831.203 Continuation of coverage for employees of the Metropolitan
Washington Airports Authority.
831.204 Elections of retirement coverage under the District of Columbia
Financial Responsibility and Management Assistance Act of
1995.
Subpart C--Credit for Service
831.301 Military service.
831.302 Unused sick leave.
831.303 Civilian service.
831.304 Service with the Cadet Nurse Corps during World War II.
831.305 Service with a nonappropriated fund instrumentality after June
18, 1952, but before January 1, 1966.
831.306 Service as a National Guard technician before January 1, 1969.
831.307 Contract service.
Subpart D--Voluntary Contributions
831.401 Purpose and scope.
831.402 Definitions.
831.403 Eligibility to make voluntary contributions.
831.404 Procedure for making voluntary contributions.
831.405 Interest on voluntary contributions.
831.406 Withdrawal of voluntary contributions.
831.407 Purchase of additional annuity.
Subpart E--Eligibility for Retirement
831.501 Time for filing applications.
831.502 Automatic separation; exemption.
831.503 Retirement based on involuntary separation.
Subpart F--Survivor Annuities
Organization and Structure of Regulations on Survivor Annuities
831.601 Purpose and scope.
831.602 Relation to other regulations.
831.603 Definitions.
[[Page 64]]
Elections at the Time of Retirement
831.611 Election at time of retirement of fully reduced annuity to
provide a current spouse annuity.
831.612 Election at time of retirement of a fully reduced annuity or a
partially reduced annuity to provide a former spouse annuity.
831.613 Election of insurable interest annuity.
831.614 Election of a self-only annuity or partially reduced annuity by
married employees and Members.
831.615 [Reserved]
831.616 Elections by previously retired retiree with new title to an
annuity.
831.617 [Reserved]
831.618 Waiver of spousal consent requirement.
831.619 Marital status at time of retirement.
Changes of Survivor Elections
831.621 Changes of election before final adjudication.
831.622 Changes of election after final adjudication.
Post-Retirement Elections
831.631 Post-retirement election of fully reduced annuity or partially
reduced annuity to provide a current spouse annuity.
831.632 Post-retirement election of fully reduced annuity or partially
reduced annuity to provide a former spouse annuity.
Eligibility
831.641 Division of a survivor annuity.
831.642 Marriage duration requirements.
831.643 Time for filing applications for death benefits.
831.644 Remarriage.
831.645 Elections between survivor annuities.
Payment of Survivor Annuities
831.651 Commencing and terminating dates of survivor annuities.
Survivor Election Deposits
831.661 Deposits not subject to waiver.
831.662 Deposits required to change an election after final
adjudication.
831.663 Actuarial reduction in annuity of retirees who make post-
retirement elections to provide a current spouse annuity or a
former spouse annuity.
831.664 Post-retirement survivor election deposits that were partially
paid before October 1, 1993.
831.665 Payment of deposits under Sec. 831.631, Sec. 831.632,
Sec. 831.682, or Sec. 831.684 under pre-October 1, 1993, law
or when the retiree has died prior to October 1, 1993.
Children's Annuities
831.671 Proof of eligibility for a child's annuity.
831.672 Annuity for a child age 18 to 22 during full-time school
attendance.
831.673 Rates of child annuities.
Regulations Pertaining to Noncodified Statutes
831.681 Annual notice required by Public Law 95-317.
831.682 Election by a retiree who retired before May 7, 1985, to
provide a former spouse annuity.
831.683 Annuities for former spouses of employees or Members retired
before May 7, 1985.
831.684 Second chance elections to provide survivor benefits.
831.685 Changes in elections to provide a current spouse annuity by a
retiree who retired before May 28, 1986.
Subpart G--Computation of Annuities
831.701 Effective dates of annuities.
831.702 Adjustment of annuities.
831.703 Computation of annuities for part-time service.
831.704 Annuities including credit for service with a nonappropriated
fund instrumentality.
Subpart H--[Reserved]
Subpart I--Law Enforcement Officers and Firefighters
831.901 Applicability and purpose.
831.902 Definitions.
831.903 Conditions for coverage in primary positions.
831.904 Conditions for coverage in secondary positions.
831.905 Evidence.
831.906 Requests from individuals.
831.907 Withholdings and contributions.
831.908 Mandatory separation.
831.909 Reemployment.
831.910 Review of decisions.
831.911 Oversight of coverage determinations.
Subpart J--CSRS Offset
831.1001 Purpose.
831.1002 Definitions.
831.1003 Deductions from pay.
831.1004 Agency contributions.
831.1005 Offset from nondisability annuity.
831.1006 Offset from disability or survivor annuity.
Subpart K--Prohibition on Payments of Annuities
831.1101 Scope.
[[Page 65]]
831.1102 Definitions.
831.1104 Notice.
831.1105 Answer; request for hearing.
831.1106 Hearing.
831.1107 Powers of presiding officers.
831.1108 Witnesses.
831.1109 Evidence.
831.1110 Initial decision.
831.1111 Appeal and review.
831.1112 Final decision.
Subpart L--Disability Retirement
831.1201 Introduction.
831.1202 Definitions.
831.1203 Basic requirements for disability retirement.
831.1204 Filing disability retirement applications: General.
831.1205 Agency-filed disability retirement applications.
831.1206 Evidence supporting entitlement to disability benefits.
831.1207 Withdrawal of disability retirement applications.
831.1208 Termination of disability annuity because of recovery.
831.1209 Termination of disability annuity because of restoration to
earning capacity.
831.1210 Annuity rights after a disability annuity terminates.
831.1211 Reinstatement of disability annuity.
831.1212 Administrative review of OPM decisions.
Subpart M--Collection of Debts
831.1301 Purpose.
831.1302 Scope.
831.1303 Definitions.
831.1304 Processing.
831.1305 Collection of debts.
831.1306 Collection by administrative offset.
831.1307 Use of consumer reporting agencies.
831.1308 Referral to a collection agency.
831.1309 Referral for litigation.
Subpart N--Standards for Waiver of Overpayments
831.1401 Conditions for waiver.
831.1402 Fault.
831.1403 Equity and good conscience.
831.1404 Financial hardship.
831.1405 Ordinary and necessary living expenses.
831.1406 Waiver precluded.
831.1407 Burdens of proof.
Subpart O--Allotments From Civil Service Annuities
831.1501 Definitions.
831.1511 Authorized allottees.
831.1521 Limitations.
Subparts P-Q--[Reserved]
Subpart R--Agency Requests to OPM for Recovery of a Debt From the Civil
Service Retirement and Disability Fund
831.1801 Purpose.
831.1802 Scope.
831.1803 Definitions.
831.1804 Conditions for requesting an offset.
831.1805 Creditor agency processing for non-fraud claims.
831.1806 OPM processing for non-fraud claims.
831.1807 Installment withholdings.
831.1808 Special processing for fraud claims.
Subpart S--State Income Tax Withholding
831.1901 Definitions.
831.1902 Federal-State agreements.
831.1903 OPM responsibilities.
831.1904 State responsibilities.
831.1905 Additional provisions.
831.1906 Agreement modification and termination.
831.1907 Authority to use the Federal Personnel Manual System.
Subpart T--Payment of Lump Sums
831.2001 Definitions.
831.2002 Eligibility for lump-sum payment upon filing an Application
for Refund of Retirement Deductions (SF 2802).
831.2003 Eligibility for lump-sum payment upon death or retirement.
831.2004 Amount of lump sums.
831.2005 Designation of beneficiary for lump-sum payment.
831.2006 Designation of agent by next of kin.
831.2007 Notification of current and/or former spouse before payment of
lump sum.
831.2008 Waiver of spouse and/or former spouse notification
requirement.
831.2009 Lump sum payments which include contributions made to a
retirement system for employees of a nonappropriated fund
instrumentality.
831.2010 Transfers between retirement systems.
831.2011 Effect of part 772 of this chapter on CSRS lump-sum payments.
Subpart U--Deposits for Military Service
831.2101 Purpose.
831.2102 Scope.
831.2103 Definitions.
831.2104 Eligibility to make deposits.
831.2105 Filing an application to make deposit.
831.2106 Processing applications for deposit for service.
831.2107 Payments on deposits.
[[Page 66]]
Subpart V--Alternative Forms of Annuities
831.2201 Purpose.
831.2202 Definitions.
831.2203 Eligibility.
831.2204 Alternative forms of annuities available.
831.2205 Computation of alternative form of annuity.
831.2206 Election to pay deposit or redeposit for civilian service.
831.2207 Partial deferred payment of the lump-sum credit if annuity
commences after January 3, 1988, and before October 1, 1989.
831.2208 Partial deferred payment of the lump-sum credit if annuity
commences after December 2, 1989, and before October 1, 1995.
831.2209 Redetermined annuity after reemployment.
Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5 U.S.C.
8334; Sec. 831.106 also issued under 5 U.S.C. 552a; Sec. 831.108 also
issued under 5 U.S.C. 8336(d)(2); Sec. 831.201(b)(6) also issued under 5
U.S.C. 7701(b)(2); Sec. 831.201(g) also issued under sections 11202(f),
11232(e), and 11246(b) of the National Capital Revitalization and Self-
Government Improvement Act of 1997, title XI of Pub. L. 105-33, 111
Stat. 251; Sec. 831.204 also issued under section 102(e) of the District
of Columbia Financial Responsibility and Management Assistance Act of
1995, Pub. L. 104-8, 109 Stat. 102, as amended by section 153 of Pub. L.
104-134, 110 Stat. 1321; Sec. 831.303 also issued under 5 U.S.C.
8334(d)(2); Sec. 831.502 also issued under 5 U.S.C. 8337; Sec. 831.502
also issued under section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.;
Sec. 831.663 also issued under 5 U.S.C. 8339(j) and (k)(2);
Secs. 831.663 and 831.664 also issued under section 11004(c)(2) of the
Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66; Sec. 831.682
also issued under section 201(d) of the Federal Employees Benefits
Improvement Act of 1986, Pub. L. 99-251, 100 Stat. 23; subpart S also
issued under 5 U.S.C. 8345(k); subpart V also issued under 5 U.S.C.
8343a and section 6001 of the Omnibus Budget Reconciliation Act of 1987,
Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under
section 7001 (a)(4) of the Omnibus Budget Reconciliation Act of 1990,
Pub. L. 101-508, 104 Stat. 1388-328.
Source: 33 FR 12498, Sept. 4, 1968, unless otherwise noted.
Subpart A--Administration and General Provisions
Sec. 831.101 Administration.
(a) OPM has charge of the adjudication of all claims arising under
subchapter III of chapter 83 of title 5, United States Code, and of all
matters directly or indirectly concerned with these adjudications.
(b) In the adjudication of claims arising under subchapter III of
chapter 83 of title 5, United States Code, OPM shall consider and take
appropriate action on counterclaims filed by the Government as set-offs
against amounts in the Civil Service Retirement and Disability Fund.
(c) For purposes of this part, the term ``Associate Director'' means
the Associate Director for Compensation in OPM.
[33 FR 12498, Sept. 4, 1968, as amended at 34 FR 17617, Oct. 31, 1969]
Sec. 831.102 Basic records.
Every Federal department, agency, corporation or branch, whether
executive, legislative, or judicial, and the District of Columbia
Government (included in this part collectively in the term department or
agency) having employees or Members of Congress (hereinafter referred to
in this part as Members) subject to subchapter III of chapter 83 of
title 5, United States Code, shall initiate and maintain retirement
accounts for those employees and Members as prescribed in Federal
Personnel Manual Supplement 831-1.
Sec. 831.103 Evidence.
(a) Standard Form 2806 (Individual Retirement Record) is the basic
record for action on all claims for annuity or refund, and those
pertaining to deceased employees, deceased Members, or deceased
annuitants.
(b) When the records of the department or agency concerned are lost,
destroyed, or incomplete, the department or agency shall request the
General Accounting Office, through OPM, to furnish the data that it
considers necessary for a proper determination of the rights of the
claimant. When an official record cannot develop the required
information, the department, agency, or OPM should request inferior or
secondary evidence which is then admissible.
Sec. 831.104 Application.
(a) Except as provided in paragraph (b) of this section,
applications under subchapter III of chapter 83 of title 5, United
States Code, shall be filed with
[[Page 67]]
OPM and shall be on forms prescribed by OPM.
(b) Applications to make deposit for military service shall be filed
in accordance with subpart U of this part.
[48 FR 38783, Aug. 26, 1983]
Sec. 831.105 Computation of interest.
(a) The computation of interest is on the basis of 30 days to the
month. Interest is computed for the actual calendar time involved in
each case, but whenever applicable the rule of average applies.
(b) Interest is allowed on current deductions and deposits at the
rate of 4 percent per year to December 31, 1947, and 3 percent per year
thereafter, compounded annually, to December 31, 1956. After December
31, 1956, except as provided below, interest is allowed at the rate of 3
percent per year, compounded annually, to date of final separation or
transfer to a position that is not covered by the retirement system.
After December 31, 1956, interest is not allowed:
(1) When an employee has one year or less of covered service,
(2) For any fractional part of a month in the total service, or
(3) For more than five years' civilian service.
(c) Interest at the rate of 3 percent per year through December 31,
1984, and, thereafter, at the yearly rate determined by the Secretary of
Treasury, compounded annually, is allowed on voluntary contributions
during periods of employment and, after the employee or Member has
completed at least 5 years' civilian service, during periods of
separation until the beginning date of annuity or death, whichever is
earlier. For refund purposes, however, interest on voluntary
contributions terminates on the date of the employee's or Member's final
separation or on the date of the employee's or Member's last transfer to
a position in which he or she is not subject to subchapter III of
chapter 83 of title 5, United States Code
(d) For noncontributory service performed before October 1, 1982,
and for redeposits of refunds paid on an application received by either
the individual's employing agency or OPM before October 1, 1982,
interest at the rate of 4 percent per year to December 31, 1947, and at
the rate of 3 percent per year thereafter, compounded annually, is
charged. Interest is charged on the outstanding balance of a deposit
from the midpoint of each service period for which deposit is involved;
interest is charged on the outstanding balance of a refund from the date
the refund was paid. Interest is charged to the date of deposit or
commencing date of annuity, whichever is earlier, except that interest
is not charged for any period of separation from the service which began
before October 1, 1956.
(e) For noncontributory service performed on or after October 1,
1982, and for redeposits of refunds paid on an application received by
the individual's employing agency or OPM on or after October 1, 1982,
interest is charged at the rate of 3 percent per year through December
31, 1984, and, thereafter, at the yearly rate determined by the
Secretary of Treasury, compounded annually. Interest is charged on the
outstanding balance of a deposit from the midpoint of each service
period for which deposit is involved; interest is charged on the
outstanding balance of a refund from the date the refund was paid.
Interest is charged to the date of deposit.
(f) No interest is charged on a deposit for military service if that
deposit is made before October 1, 1984, or within 2 years of the date
that an individual first becomes an employee or Member under the civil
service retirement system, whichever is later. When interest is charged
on a deposit for military service, it is charged on the outstanding
balance at the rate of 3 percent per year, compounded annually, from
October 1, 1984, or 2 years from the date the individual first becomes
an employee or Member, whichever is later, through December 31, 1984,
and thereafter at the yearly rate determined by the Secretary of the
Treasury.
(g) For calendar year 1985 and for each subsequent calendar year,
OPM will publish a notice in the Federal Register to notify the public
of the interest rate that will be in effect during that calendar year.
(h) Interest under Secs. 831.631, 831.632, 831.682, and 831.684 is
compounded annually and accrued monthly.
[[Page 68]]
(1) The initial interest on each monthly difference between the
reduced annuity rate and the annuity rate actually paid equals the
amount of the monthly difference times the difference between (i) 1.06
raised to the power whose numerator is the number of months between the
date when the monthly difference in annuity rates occurred and the date
when the initial interest is computed and whose denominator is 12; and
(ii) 1.
(2) The total initial interest due is the sum of all of the initial
interest on each monthly difference computed in accordance with
paragraph (h)(1) of this section.
(3) Additional interest on any uncollected balance will be
compounded annually and accrued monthly. The additional interest due
each month equals the remaining balance due times the difference between
(i) 1.06 raised to the 1/12th power; and (ii) 1.
(i)(1) When an individual's civilian service involves several
deposit and/or redeposit periods, OPM will normally use the following
order of precedence in applying each installment payment against the
full amount due:
(i) Redeposits of refunds paid on applications received by the
individual's employing agency or OPM on or after October 1, 1982;
(ii) Redeposits of refunds paid on applications received by the
individual's employing agency or OPM before October 1, 1982;
(iii) Deposits for noncontributory civilian service performed on or
after October 1, 1982; and
(iv) Deposits for noncontributory service performed before October
1, 1982.
(2) If an individual specifically requests a different order of
precedence, that request will be honored.
(j) Interest under Sec. 831.662 is compounded annually and accrued
monthly.
(1) The initial interest on each monthly difference between the
reduced annuity rate and the annuity rate actually paid equals the
amount of the monthly difference times the difference between--
(i) The sum of one plus the interest rate set under Sec. 831.105(g)
raised to the power whose numerator is the number of months between the
date when the monthly difference in annuity rates occurred and the date
when the initial interest is computed and whose denominator is 12; and
(ii) 1.
(2) The total initial interest due is the sum of all of the initial
interest on each monthly difference computed in accordance with
paragraph (j)(1) of this section.
[33 FR 12498, Sept. 4, 1968, as amended at 47 FR 43637, Oct. 1, 1982; 48
FR 38783, Aug. 26, 1983; 51 FR 31931, Sept. 8, 1986; 52 FR 32287, Aug.
27, 1987; 55 FR 9099, Mar. 12, 1990; 58 FR 52880, Oct. 13, 1993]
Sec. 831.106 Disclosure of information.
(a)(1) The Office has in its possession or under its control records
containing the following types of information:
(i) Documentation of Federal service subject to the Civil Service
Retirement System.
(ii) Documentation of service credit and refund claims made under
the Civil Service Retirement System.
(iii) Retirement and death claims files, including documents
supporting the retirement application, health benefits and life
insurance eligibility, medical records supporting disability claims, and
designations of beneficiaries.
(iv) Claims review and correspondence files pertaining to benefits
under the Federal Employees Health Benefits Program.
(v) Suitability determination files on applicants for Federal
employment found unsuitable for employment on medical grounds.
(vi) Documentation of claims made for life insurance and health
benefits by annuitants under a Federal Government retirement system
other than the Civil Service Retirement System.
(vii) Documentation of voluntary contributions made by eligible
individuals.
(viii) Health Unit medical records for OPM employees.
(2) These records may be disclosed to the individual to whom the
information pertains, or with prior written consent of the individual to
any agency or other person, except that medical
[[Page 69]]
evidence about which a prudent physician would hesitate to inform the
individual, will be disclosed only to a licensed physician designated in
writing for that purpose by the individual or by his or her
representative.
(3) Civil service retirement records will be disclosed consistent
with the provisions of the Privacy Act of 1974 (5 U.S.C. 552a),
including, but not limited to, disclosures.
(i) Pursuant to a routine use promulgated for such records and
printed in the Office's annual publication of notices of systems of
records, except that;
(ii) A beneficiary designated in accordance with the provisions of
the Civil Service Retirement law (5 U.S.C. 8342(b)) shall, during the
lifetime of the designator, be disclosed to the designator only, at his
or her signed, written request. Such beneficiary designations that may
appear in records being disclosed must be removed before access to a
record is permitted. If information pertaining to a designation of
beneficiary is specifically asked for by a court of competent
jurisdiction, it may be released to the court, but with a written notice
that it is released under protest.
(4) Except as provided in paragraphs (a)(2) and (a)(3) of this
section, the Office shall not disclose information from the files,
records, reports, or other papers and documents pertaining to a claim
filed with the Office, whether potential, pending, or adjudicated. This
information is deemed privileged and confidential.
(b) On written request the Office shall return, to the person
entitled to them, certificates of discharges, adoption papers, marriage
certificates, decrees of divorce, letters testamentary or of
administration, when they are no longer needed in the settlement of the
claim. If papers returned constitute part of the material and essential
evidence in a claim, the Office shall retain in the file photo or other
copies of them or of the parts which appear to be of evidential value.
[47 FR 12937, Mar. 26, 1982]
Sec. 831.107 Computation of time.
In computing a period of time prescribed by this part, the day of
the action or event after which the designated period of time begins to
run is not included. The last day of the period is included unless it is
a Saturday, a Sunday, or a legal holiday; in this event, the period runs
until the end of the next day which is not a Saturday, a Sunday, or a
legal holiday.
[33 FR 12498, Sept. 4, 1968. Redesignated at 44 FR 37889, June 29, 1979]
Sec. 831.108 Major reorganization, reduction in force, or transfer of function.
Determinations of major reorganization, major reduction in force, or
major transfer of function for purposes of early optional retirement
under section 8336(d)(2) of title 5, United States Code, as amended,
will be made by the Office of Personnel Management only after receipt of
written request to make the determinations from the agency, or his or
her designee.
[44 FR 44815, July 31, 1979; 45 FR 2837, Jan. 15, 1980]
Sec. 831.109 Initial decision and reconsideration.
(a) Who may file. Except as noted in paragraph (b) of this section
any individual or agency whose rights or interests under the Civil
Service Retirement System are affected by an initial decision of the
Office of Personnel Management (OPM) may request OPM to review its
initial decision.
(b) Actions covered elsewhere. (1) A request for reconsideration of
termination of annuity payments under 5 U.S.C. 8311-22 shall be made in
accordance with the procedures set out in subpart K of this part.
(2) A request for reconsideration of a decision to collect a debt
will be made in accordance with Sec. 831.1304(b).
(c) Initial decision. A decision shall be considered an initial
decision when rendered by OPM in writing and stating the right to
reconsideration.
(d) Reconsideration. A request for reconsideration must be in
writing, must include the individual's name, address, date of birth and
claim number, if applicable, and must state the basis for the request.
(e) Time limits on reconsideration. (1) A request for
reconsideration must be received by OPM within 30 calendar days from the
date of the original decision.
[[Page 70]]
(2) The representative of the Associate Director for Compensation
responsible for reconsiderations may extend the time limit for filing
when the individual shows that he/she was not notified of the time limit
and was not otherwise aware of it, or that he/she was prevented by
circumstances beyond his/her control from making the request within the
time limit.
(f) Final decision. (1) After reconsideration, the Associate
Director's representative shall issue a final decision which shall be in
writing, shall fully set forth the findings and conclusions of the
reconsideration, and shall contain notice of the right to request an
appeal provided in Sec. 831.110. Copies of the final decision shall be
sent to the individual, to any competing claimants and, where
applicable, to the agency.
(2) OPM may issue a final decision providing the opportunity to
appeal under Sec. 831.110 rather than an opportunity to request
reconsideration under paragraph (c) of this section. Such a decision
must be in writing and state the right to appeal under Sec. 831.110.
(g) Competing claimants. (1) When a competing claimant files a
request for reconsideration under this section, the other competing
claimants shall be notified of the request and given an opportunity to
submit written substantiation of their claim.
(2) When a determination in favor of one claimant would affect
another claimant, all claimants concerned will be notified of that
decision and those adversely affected will be given an opportunity to
request reconsideration. OPM shall not execute its decision until the
time limit for requesting reconsideration has expired. If
reconsideration has been requested, OPM shall take no action after the
reconsideration decision is rendered until the time limit to appeal has
expired.
[45 FR 23632, Apr. 8, 1980, as amended at 49 FR 1330, Jan. 11, 1984; 50
FR 34664, Aug. 27, 1985; 62 FR 22873, Apr. 28, 1997]
Sec. 831.110 Appeals.
Appeals to MSPB. Except as noted in this paragraph, an individual or
agency whose rights or interests under the Civil Service Retirement
System (Subchapter III of chapter 83, title 5, United States Code) are
affected by a final decision of the representative of the Associate
Director for Compensation, Office of Personnel Management, may request
the Merit Systems Protection Board to review such decision in accord
with procedures prescribed by the Board. Decisions of OPM and the
Associate Director for Compensation made in accord with the procedures
referenced in Sec. 831.109(b)(1) are made under subchapter II of chapter
83, title 5, United States Code. Such decisions are not appealable to
the Merit Systems Protection Board under 5 U.S.C. 8347(d).
[44 FR 37890, June 29, 1979, as amended at 45 FR 23633, Apr. 8, 1980; 48
FR 38784, Aug. 26, 1983]
Sec. 831.111 Employee deductions and agency contributions.
(a) Agency share. When an agency fails to withhold some or all of an
employee deduction under 5 U.S.C. 8334(a) for any pay period, the agency
is still responsible for submitting the correct agency contribution to
OPM. The agency must submit as the agency share, a payment equal to the
amount that would have been submitted if the error had not been made (or
a payment equal to the difference between the amount already submitted
as the agency share and the amount that should have been submitted). The
payment should be submitted to OPM in the manner currently prescribed
for the transmission of withholdings and contributions as soon as
possible, but not later than provided by standards established by OPM in
the Federal Personnel Manual.
(b) Employee share. (1) If, through administrative error, an agency
did not withhold any of the employee deductions required by 5 U.S.C.
8334(a) for any pay period, the employee may, at his or her option--
(i) Request the agency that employed him or her when the error was
made to correct his or her records and arrange to pay any resulting
overpayment of pay to the agency (unless it is waived by the agency); or
(ii) Pay the deposit plus any applicable interest (under certain
conditions, the deposit may be made at any time until the final
adjudication of his or her application for retirement) directly to OPM
by submitting SF 2803; or
[[Page 71]]
(iii) Have the period of service treated like the nondeduction
service described in Sec. 831.303.
(2) When the agency withholds part of the required employee
deductions for any pay period, the balance must be submitted to OPM in
the manner currently prescribed for the transmission of withholdings and
contributions as soon as possible, but not later than provided by
standards established by OPM in the Federal Personnel Manual. The agency
must correct its error. The employee does not have the option to pay a
deposit directly to OPM when partial deductions have been withheld.
(3) If the agency waives the employee's repayment of the salary
overpayment that resulted from the administrative error, the agency must
also submit (in addition to the agency contribution) the employee's
share of the unpaid contributions to OPM in the manner currently
prescribed for the transmission of withholdings and contributions.
[53 FR 35295, Sept. 13, 1988]
Sec. 831.112 Definitions of employee.
(a) Determinations involving an employee's ability to make a deposit
or redeposit. A person may make a deposit or redeposit under section
8334 of title 5, United States Code, if he or she is an ``employee.''
For purposes of this paragraph, an employee is--
(1) A person currently employed in a position subject to the civil
service retirement law; or
(2) A former employee (whose annuity has not been finally
adjudicated) who retains civil service retirement annuity rights based
on a separation from a position in which retirement deductions were
properly withheld and remain (or have been redeposited in whole or in
part) in the Civil Service Retirement and Disability Fund.
(b) Determinations involving the payment of survivor benefits at an
employee's or former employee's death. To determine entitlement to
survivor benefits, OPM establishes whether the deceased individual was
an ``employee'' or a ``retiree'' on the date of death. If the decedent
was an ``employee'' on the date of death, survivor benefits are paid as
though the individual died in service. If the decedent was a ``retiree''
on the date of death, survivor benefits are only paid as provided in the
individual's election, provided it was properly made. However, if a
former employee was eligible only for a deferred annuity at age 62,
survivor benefits are only paid if the individual was a ``retiree'' on
the date of death. For purposes of this paragraph--
(1) Employee is a person--
(i) Who had not been separated from service prior to his or her
death, even if he or she had applied for retirement (for example, an
applicant for disability annuity) and the application had been approved;
or
(ii) Whose death occurs before the commencing date of annuity, even
though separation has occurred.
(2) Retiree or annuitant is a person--
(i) Who has been separated from service and met all the requirements
to receive an annuity including having filed an application for the
annuity prior to his or her death; and
(ii) Whose death occurs on or after the commencing date of annuity.
(c) Determinations involving the requirement of spousal consent for
elections of alternative annuity and survivor annuity benefits. Spousal
consent is required as specified in Secs. 831.614 and 831.2203(c), if
the employee/annuitant is married on the commencing date of annuity,
regardless of whether that date is before or after the date of
separation from service.
[56 FR 45883, Sept. 9, 1991, as amended at 58 FR 52880, Oct. 13, 1993]
Sec. 831.113 Payments to children.
For purposes of section 8345(e) of title 5, United States Code,
persons who have attained age 18 are considered adults regardless of the
age of majority in the jurisdiction in which they reside.
[56 FR 45884, Sept. 9, 1991]
Subpart B--Coverage
Sec. 831.201 Exclusions from retirement coverage.
(a) The following groups of employees in the executive branch of the
Government are excluded from subchapter III of chapter 83 of title 5,
United States Code:
[[Page 72]]
(1) Employees serving under appointments limited to one year or
less, except annuitants appointed by the President to fill unexpired
terms of office on or after January 1, 1976.
(2) Intermittent employees--non-full-time employees without a
prearranged regular tour of duty.
(3) Employees whose salary, pay, or compensation on an annual basis
is $12 a year or less.
(4) Member or patient employees in Government hospitals or homes.
(5) Employees paid on a piecework basis, except those whose work
schedule provides for regular or full-time service.
(6) Intermittent alien employees engaged on work outside the
continental limits of the United States.
(7) Employees serving under temporary appointments pending
establishment of registers, or pending final determination of
eligibility for permanent appointment.
(8) Officers in Charge, clerks in fourth-class post offices,
substitute rural carriers, and special-delivery messengers at second-
third-, and fourth-class post offices.
(9) Consular agents appointed under authority of section 551 of the
Foreign Service Act of 1946 (22 U.S.C. 951).
(10) Employees serving under emergency-indefinite appointments not
exceeding 5 years.
(11) United States citizens given ``overseas limited appointments.''
(12) Employees serving under nonpermanent appointments made pursuant
to section 1 of Executive Order 10180 of November 13, 1950.
(13) Employees serving under nonpermanent appointments, designated
as indefinite, made after January 23, 1955, the effective date of the
repeal of Executive Order 10180.
(14) Employees serving under term appointments.
(15) Temporary employees of the Census Bureau employed under
temporary limited appointments exceeding 1 year.
(16) Employees serving under limited term, limited emergency and
noncareer (designated as indefinite) appointments in the Senior
Executive Service.
(17) Health care employees of the National Health Service Corps
serving under appointments limited to four years or less in health
manpower shortage areas.
(b) Paragraph (a) of this section does not deny retirement coverage
when:
(1) Employment in an excluded category follows employment subject to
subchapter III of chapter 83 of title 5, United States Code, without a
break in service or after a separation from service of 3 days or less,
except in the case of an alien employee whose duty station is located in
a foreign country;
(2) The employee receives a career or career-conditional appointment
under part 315 of this chapter;
(3) The employee is granted competitive status under legislation,
Executive order, or civil service rules and regulations, while he or she
is serving in a position in the competitive service; or
(4) The employee is granted merit status under 35 CFR chapter I,
subchapter E;
(5) The appointment meets the definition of a provisional
appointment contained in Secs. 316.401 and 316.403 of this chapter;
(6) The employee receives an interim appointment under Sec. 772.102
of this chapter and was covered by CSRS at the time of the separation
for which interim relief is required.
(c) Members of the following boards and commissions of the
government of the District of Columbia appointed on or after August 13,
1960, are excluded from subchapter III of chapter 83 of title 5, United
States Code, except that this exclusion does not operate in the case of
a member serving on August 13, 1960, who is reappointed on expiration of
term without a break in service or after a separation from serwice of 3
days or less:
Board of Accountancy.
Board of Examiners and Registrars of Architects.
Board of Barber Examiners.
Boxing Commission.
Board of Cosmetology.
Board of Dental Examiners.
Electrical Board.
Commission on Licensure to Practice the Healing Arts.
Board of Examiners in the Basic Sciences.
Board of Examiners in Medicine and Osteopathy.
Motion Picture Operators' Board.
Nurses' Examining Board.
Board of Optometry.
Board of Pharmacy.
[[Page 73]]
Plumbing Board.
Board of Podiatry Examiners.
Board of Registration for Professional Engineers.
Real Estate Commission.
Refrigeration and Air Conditioning Board.
Steam and Other Operating Engineers' Board.
Undertakers' Committee.
Board of Examiners of Veterinarian Medicine.
(d) The following groups of employees of the government of the
District of Columbia, appointed on or after October 1, 1965, are
excluded from subchapter III of chapter 83 of title 5, United States
Code:
(1) Employees serving under appointments limited to one year or
less, except temporary teachers of the District of Columbia public
school system.
(2) Intermittent employees--non-full-time employees without a
prearranged regular tour of duty.
(3) Employees whose pay on an annual basis is $12.00 per year or
less.
(4) Patient or inmate employees in District Government hospitals,
homes or penal institutions.
(5) Employees paid on a contract or fee basis.
(6) Employees paid on a piecework basis, except those whose work
schedule provides for regular or full-time service.
(7) Employees serving under temporary appointments pending
establishment of registers, or pending final determination of
eligibility for permanent appointment.
(e) Paragraph (d) of this section does not deny retirement coverage
when (1) employment in an excluded category follows employment subject
to subchapter III of chapter 83 of title 5, United States Code, without
a break in service or after a separation from service of 3 days or less,
or (2) the employee is granted competitive status under legislation,
Executive order, or the Civil Service rules and regulations, while he is
serving in a position in the competitive service.
(f) Also excluded are any temporary employees, appointed for one
year or less, by the government of the District of Columbia under any
program or project established pursuant to the Economic Opportunity Act
of 1964 (42 U.S.C. 2701 et seq.), and summer trainees employed by the
Government of the District of Columbia in furtherance of the President's
Youth Opportunity Campaign.
(g) Individuals first employed by the government of the District of
Columbia on or after October 1, 1987, in a position subject to
subchapter III of chapter 83 of title 5, United States Code, are
excluded from such subchapter, except:
(1) Employees of St. Elizabeths Hospital who were covered under
subchapter III of chapter 83 of title 5, United States Code, before
October 1, 1987, appointed by the District of Columbia government on
October 1, 1987, as provided in section 6 of Pub. L. 98-621, and deemed
employed by the District of Columbia government before October 1, 1987,
under section 109 of Pub. L. 100-238;
(2) Effective on and after October 1, 1997, the effective date of
section 11246 of Pub. L. 105-33, 111 stat. 251, nonjudicial employees of
the District of Columbia Courts employed in a position which is not
excluded from CSRS under the provisions of this section;
(3) The District of Columbia Department of Corrections Trustee,
authorized by section 11202 of Pub. L. 105-33, 111 Stat. 251, and an
employee of the Trustee if the Trustee or employee is a former Federal
employee appointed with a break in service of 3 days or less, and in the
case of an employee of the Trustee is employed in a position which is
not excluded from CSRS under the provisions of this section;
(4) The District of Columbia Pretrial Services, Defense Services,
Parole, Adult Probation and Offender Supervision Trustee, authorized by
section 11232 of Pub. L. 105-33, 111 Stat. 251, and an employee of the
Trustee if the Trustee or employee is a former Federal employee
appointed with a break in service of 3 days or less, and in the case of
an employee of the Trustee is employed in a position which is not
excluded from CSRS under the provisions of this section, and;
(5) Subject to an election under Sec. 831.204, employees of the
District of Columbia Financial Responsibility and Management Assistance
Authority.
(h) Employees who have elected coverage under another retirement
system in accordance with part 847 of this
[[Page 74]]
chapter are excluded from subchapter III of chapter 83 of title 5,
United States Code, during that and all subsequent periods of service
(including service as a reemployed annuitant).
[33 FR 12498, Sept. 4, 1968, as amended at 45 FR 24856, Apr. 11, 1980;
45 FR 46782, July 11, 1980; 47 FR 2285, Jan. 15, 1982; 48 FR 38784, Aug.
26, 1983; 51 FR 23037, June 25, 1986; 52 FR 38220, Oct. 15, 1987; 53 FR
42936, Oct. 25, 1988; 56 FR 4930, Feb. 7, 1991; 56 FR 10142, Mar. 11,
1991; 57 FR 3713, Jan. 31, 1992; 61 FR 41720, Aug. 9, 1996; 62 FR 50996,
Sept. 30, 1997]
Sec. 831.202 Continuation of coverage for food service employees of the House of Representatives.
(a) Congressional employees who provide food service operations for
the House of Representatives can elect to continue their retirement
coverage under subchapter III of chapter 83 of title 5, United States
Code, when such food service operations are transferred to a private
contractor. These regulations also apply to any successor contractors.
(b) Eligibility requirements. To be eligible for continuation of
retirement coverage, an employee must:
(1) Be a Congressional employee (as defined in section 2107 of title
5, United States Code), other than an employee of the Architect of the
Capitol, engaged in providing food service operations for the House of
Representatives under the administrative control of the Architect of the
Capitol;
(2) Be subject to subchapter III of chapter 83 of title 5, United
States Code;
(3) Elect to remain covered under civil service retirement
provisions no later than the day before the date on which the food
service operations transfer from the House of Representatives to a
private contractor; and
(4) Become employed to provide food services under contract without
a break in service. A ``break in service'' means a separation from
employment of at least three calendar days.
(c) Employee deductions. An employee who elects to continue coverage
under title 5 retirement provisions is deemed to consent to deductions
from his or her basic pay for the Civil Service Retirement and
Disability Fund in the amount determined in accordance with 5 U.S.C.
8334(k). The employer providing the food services under contract must,
in accordance with procedures established by OPM, pay into the Civil
Service Retirement and Disability Fund the amounts deducted from an
employee's pay.
(d) Employer contributions. The employer providing food services
under contract must, in accordance with procedures established by OPM,
pay into the Civil Service Retirement and Disability Fund amounts equal
to any agency contributions that would be required if the individual
were a Congressional employee covered by the Civil Service Retirement
System.
[52 FR 5069, Feb. 19, 1987, and 53 FR 10055, Mar. 29, 1988. Redesignated
at 53 FR 10055, Mar. 29, 1988]
Sec. 831.203 Continuation of coverage for employees of the Metropolitan Washington Airports Authority.
(a) Permanent Federal Aviation Administration employees assigned to
Washington National Airport or Dulles International Airport who elect to
transfer to the Metropolitan Washington Airports Authority, retain their
retirement coverage under subchapter III of chapter 83 of title 5,
United States Code.
(b) Eligibility requirements. To be eligible for continuation of
retirement coverage, an employee must (1) be a permanent Federal
Aviation Administration employee assigned to the Metropolitan Washington
Airports who elects to transfer to the Airports Authority; (2) be
subject to subchapter III chapter 83 of title 5 United States Code on
the day before the date the lease takes effect; and (3) become
continually employed by the Airports Authority without a break in
service. A ``break in service'' means a separation from employment of at
least 3 calendar days.
(c) Employee deductions. Employees of the Airports Authority who
have continuing coverage under title 5 retirement provisons are deemed
to consent to deductions from their basic pay for the Civil Service
Retirement and Disability Fund. The amounts deducted will be the same as
if the employees were still employed by the Federal Government. The
Airports Authority must, in accordance with procedures
[[Page 75]]
established by OPM, pay into the Civil Service Retirement and Disability
Fund the amounts deducted from an employee's pay.
(d) Employer contributions. The Airports Authority must, in
accordance with procedures established by OPM, pay into the Civil
Service Retirement and Disability Fund amounts equal to any agency
contributions that would be required for employees covered by the Civil
Service Retirement System.
(e) Sick leave. An employee who retires, or dies leaving a survivor
entitled to an annuity, from the Airports Authority within the 5 year
period beginning on the date the lease takes effect will be permitted to
credit unused sick leave in his or her annuity computation. After the 5
year period, use of unused sick leave in the annuity computation will be
permitted if the employee is under a formal leave system as defined in
Sec. 831.302.
[52 FR 19125, May 21, 1987, and 53 FR 10055, Mar. 29, 1988. Redesignated
at 53 FR 10055, Mar. 29, 1988]
Sec. 831.204 Elections of retirement coverage under the District of Columbia Financial Responsibility and Management Assistance Act of 1995.
(a) Who may elect--(1) General rule. Any individual appointed by the
District of Columbia Financial Responsibility and Management Assistance
Authority (the Authority) in a position not excluded from CSRS coverage
under Sec. 831.201 may elect to be deemed a Federal employee for CSRS
purposes unless the employee has elected to participate in a retirement,
health or life insurance program offered by the District of Columbia.
(2) Exception. A former Federal employee being appointed by the
Authority on or after October 26, 1996, no more than 3 days (not
counting District of Columbia holidays) after separation from Federal
employment cannot elect to be deemed a Federal employee for CSRS
purposes unless the election was made before separation from Federal
employment.
(b) Opportunity to elect FERS. An individual who elects CSRS under
paragraph (a) of this section after a break of more than 3 days between
Federal service and employment with the Authority may elect FERS in
accordance with 5 CFR 846.201(b)(ii).
(c) Procedure for making an election. The Authority or the agency
providing administrative support services to the Authority
(Administrative Support Agency) must establish a procedure for notifying
employees of their election rights and for accepting elections.
(d) Time limit for making an election. (1) An election under
paragraph (a)(1) of this section must be made within 30 days after the
employee receives the notice under paragraph (c) of this section.
(2) The Authority or its Administrative Support Agency will waive
the time limit under paragraph (d)(1) of this section upon a showing
that--
(i) The employee was not advised of the time limit and was not
otherwise aware of it; or
(ii) Circumstances beyond the control of the employee prevented him
or her from making a timely election and the employee thereafter acted
with due diligence in making the election.
(e) Effect of an election. (1) An election under paragraph (a) of
this section is effective on the commencing date of the employee's
service with the Authority.
(2) An individual who makes an election under paragraph (a) of this
section is ineligible, during the period of employment covered by that
election, to participate in any retirement system for employees of the
government of the District of Columbia.
(f) Irrevocability. An election under paragraph (a) of this section
becomes irrevocable when received by the Authority or its Administrative
Support Agency.
(g) Employee deductions. The Authority or its Administrative Support
Agency must withhold, from the pay of an employee of the District of
Columbia Financial Responsibility and Assistance Authority who has
elected to be deemed a Federal employee for CSRS purposes, an amount
equal to the percentage withheld from Federal employees' pay for periods
of service covered by CSRS and, in accordance with procedures
established by OPM, pay into the Civil Service Retirement and Disability
Fund the amounts deducted from an employee's pay.
[[Page 76]]
(h) Employer contributions. The District of Columbia Financial
Responsibility and Assistance Authority must, in accordance with
procedures established by OPM, pay into the Civil Service Retirement and
Disability Fund amounts equal to any agency contributions required under
CSRS.
[61 FR 58458, Nov. 15, 1996]
Subpart C--Credit for Service
Sec. 831.301 Military service.
(a) Service of an individual who first became an employee or Member
under the civil service retirement system before October 1, 1982. A
period of honorable active service after December 31, 1956, in the Army,
Navy, Marine Corps, Air Force, or Coast Guard of the United States, or,
after June 30, 1960, in the Regular Corps or Reserve Corps of the Public
Health Service, or, after June 30, 1961, as a commissioned officer of
the National Oceanic and Atmospheric Administration (formerly Coast and
Geodetic Survey and Environmental Science Services Administration),
performed before the date of separation on which civil service annuity
entitlement is based shall be included in the computation of the annuity
provided--
(1) The employee or Member has completed 5 years' (18 months' for
survivors of employees or Members who die in service) civilian service;
(2) The employee or Member is not receiving military retired pay
awarded for reasons other than (i) service-connected disability incurred
in combat with an enemy of the United States, (ii) service-connected
disability caused by an instrumentality of war and incurred in line of
duty during a period of war (as that term is used in chapter 11 of title
38, United States Code), or (iii) under chapter 67 of title 10, United
States Code; and
(3)(i) The employee, Member, or survivor is not entitled, or upon
application would not be entitled, to monthly old-age or survivors
benefits under Sec. 202 of the Social Security Act (41 U.S.C. 402) based
on the individual's wages or self-employment income, or
(ii) For an employee, Member, or survivor who is entitled, or upon
application would be entitled, to monthly old-age or survivors benefits
under Sec. 202 of the Social Security Act (41 U.S.C. 402) based on the
individual's wages or self-employment income, the employee, Member, or
survivor has completed a deposit in accordance with subpart U of this
part, for each full period of such military service performed after
December 1956.
If a deposit has not been completed, periods of military service
performed after December 31, 1956 (other than periods of military
service covered by military leave with pay from a civilian position),
are excluded from credit from and after the first day of the month in
which the individual (or survivor) becomes entitled, or upon proper
application would be entitled, to Social Security benefits under
Sec. 202. Military service performed prior to January 1957 is included
in the computation of the annuity regardless of whether a deposit is
made for service after December 31, 1956.
(b) Service of an individual who first becomes an employee or Member
under the civil service retirement system on or after October 1, 1982. A
period of honorable active service after December 31, 1956, in the Army,
Navy, Marine Corps, Air Force, or Coast Guard of the United States, or,
after June 30, 1960, in the Regular Corps or Reserve Corps of the Public
Health Service, or, after June 30, 1961, as a commissioned officer of
the National Oceanic and Atmospheric Administration (formerly Coast and
Geodetic Survey and Environmental Science Services Administration),
performed before the date of separation on which civil service annuity
entitlement is based shall be included in the computation of the annuity
provided--
(1) The employee or Member has completed 5 years' (18 months' for
survivors of employees or Members who die in service) civilian service;
(2) The employee or Member is not receiving military retired pay
awarded for reasons other than (i) service-connected disability incurred
in combat with an enemy of the United States, (ii) service-connected
disability caused by an instrumentality of war and incurred in line of
duty during a period of war (as that term is used in chapter 11 of title
38, United States Code), or (iii)
[[Page 77]]
under chapter 67 of title 10, United States Code; and
(3) The employee, Member, or survivor had completed a deposit in an
amount equal to 7 percent of his or her basic pay under section 204 of
title 37, United States Code, (plus interest, if any) for each full
period of such military service performed after December 1956. Military
service performed prior to January 1957 is included in the computation
of the annuity regardless of whether a deposit is made for service after
December 31. 1956.
(c) Military retirees and recipients of Veterans Administration
benefits. An employee or Member applying for annuity, who otherwise
meets all conditions for receiving credit for military service, but who
is in receipt of retired or retainer pay which bars credit for military
service, may elect to waive the retired or retainer pay and have the
military service added to civilian service for annuity computation
purposes. An applicant for disability retirement, who is receiving a
Veterans Administration pension or compensation in lieu of military
retired or retainer pay, may elect to waive the retired or retainer pay
and renounce the Veterans Administration pension or compensation and
have the military service added to civilian service for annuity
computation purposes.
(d) Widow(er)s and former spouses entitled to annuity based on the
service of employees or Members who die in service--(1) Military service
is included unless the widow(er) or former spouse elects otherwise.
Effective April 25, 1987, unless a widow(er) or former spouse of an
employee or Member who dies--on or after that date--before being
separated from service files a written election to the contrary, his or
her annuity will include credit for periods of military service (subject
to the provisions of paragraphs (a) and (b) of this section) that would
ordinarily be excluded from the computation of the employee's or
Member's annuity under 5 U.S.C. 8332(c)(2).
(2) Reduction by the amount of survivor benefits payable based on
the military service. (i) In paragraph (d)(2)(ii) of this section,
``survivor benefits under a retirement system for members of the
uniformed services'' means survivor benefits before any offsets for
benefits payable from another Federal benefit system except for those
payable under title II of the Social Security Act. The amount of the
survivor benefit to be deducted will be the amount payable to the
current or former spouse and attributable to the decedent's retired or
retainer pay for the period of military service to be included in the
CSRS survivor annuity. However, the survivor benefit will never be
reduced below the amount payable based on the civilian service alone.
(ii) OPM will obtain information on the amount of any monthly
survivor benefits payable to each applicant for CSRS current or former
spouse annuity. OPM will reduce the CSRS survivor annuity by the monthly
military survivor benefit on its commencing date. OPM will not make a
subsequent adjustment unless it is necessary to increase or decrease the
CSRS survivor benefit because of a change in the amount of military
survivor benefits attributable to the period of service or a change in
the period of military service to be included in the CSRS annuity when
the survivor annnuitant becomes eligible for benefits under title II of
the Social Security Act.
(3) Widow(er)s or former spouses of employees or Members who die on
or after April 25, 1987--election not to be included. OPM will accept a
written election from a widow(er) or former spouse who does not wish to
be covered by Sec. 831.301(d) provided it is postmarked within the
period ending 30 calendar days after the date of the first regular
monthly annuity payment.
(4) Widow(er)s or former spouses of employees or Members who die
before April 25, 1987--application to OPM for credit. Widow(er)s or
former spouses of employees or Members who died before April 25, 1987,
must apply to OPM in writing to have credit for military service
included in the survivor annuity computation. If the survivor annuity is
increased by including credit for the military service, the increase
will be effective on the first of the month following the 60th calendar
day after
[[Page 78]]
the date the written application for inclusion of the military service
is received in OPM.
[48 FR 38784, Aug. 26, 1983, as amended at 51 FR 31931, Sept. 8, 1986;
52 FR 10026, Mar. 30, 1987; 53 FR 6555, Mar. 2, 1988]
Sec. 831.302 Unused sick leave.
(a) For annuity computation purposes, the service of an employee who
retires on immediate annuity or dies leaving a survivor entitled to
annuity is increased by the days of unused sick leave to his credit
under a formal leave system.
(b) An immediate annuity is one which begins to accrue not later
than 1 month after the employee is separated.
(c) A formal leave system is one which is provided by law or
regulation or operates under written rules specifying a group or class
of employees to which it applies and the rate at which sick leave is
earned.
(d) In general, 8 hours of unused sick leave increases total
services by 1 day. In cases where more or less than 8 hours of sick
leave would be charged for a day's absence, total service is increased
by the number of days in the period between the date of separation and
the date that the unused sick leave would have expired had the employee
used it (except that holidays falling within the period are treated as
work days, and no additional leave credit is earned for that period).
(e) If an employee's tour of duty changes from part time to full
time or full time to part time within 180 days before retirement, the
credit for unused sick leave is computed as though no change had
occurred.
[34 FR 17617, Oct. 31, 1969]
Sec. 831.303 Civilian service.
(a) Periods of civilian service performed before October 1, 1982,
for which retirement deductions have not been taken. Periods of
creditable civilian service performed by an employee or Member after
July 31, 1920, but before October 1, 1982, for which retirement
deductions have not been taken shall be included in determining length
of service to compute annuity under subchapter III of chapter 83 of
title 5, United States Code; however, if the employee, Member, or
survivor does not elect either to complete the deposit describes by
section 8334(c) of title 5, United States Code, or to eliminate the
service from annuity computation, his or her annuity is reduced by 10
percent of the amount which should have been deposited (plus interest)
for the period of noncontributory service.
(b) Periods of service for which refunded deductions have not been
redeposited, and periods of civilian service performed on or after
October 1, 1982, for which retirement deductions have not been taken.
Except as provided in paragraph (c) of this section, a period of service
for which refunded deductions have not been redeposited, and a period of
creditable civilian service performed by an employee or Member on or
after October 1, 1982, for which retirement deductions have not been
taken, shall be included in determining length of service to compute the
annuity under subchapter III of chapter 83 of title 5, United States
Code, only if--
(1) The employee or Member subsequently becomes eligible for an
annuity payable under subchapter III of chapter 83 of title 5, United
States Code; and
(2) The employee, Member, or survivor makes a deposit (or redeposit)
for the full period of service. If more than one distinct period of
service is covered by a single refund, the periods of service covered by
that refund are considered to be single full periods of service.
However, in all other instances, a distinct period of nondeduction
civilian service (i.e., a period of nondeduction service that is not
interrupted by a break in service of more than three days) and a
distinct period of redeposit civilian service (i.e., a period of
redeposit service that is not interrupted by a break in service of more
than three days) are considered as separate full periods of service,
even when they are immediately consecutive. A period of nondeduction
service which begins before October 1, 1982, and ends on or after that
date is also considered two full periods of service: one ending on
September 30, 1982, and the other beginning on October 1, 1982.
(c)(1) An employee or Member who has not completed payment of a
redeposit for refunded deductions based on
[[Page 79]]
a period of service that ended before October 1, 1990, will receive
credit for that service in computing the nondisability annuity for which
the individual is eligible under subchapter III of chapter 83 of title
5, United States Code, provided the nondisability annuity commences
after December 1, 1990.
(2) The beginning monthly rate of annuity payable to a retiree whose
annuity includes service credited in accordance with paragraph (c)(1) of
this section will be reduced by an amount equal to the redeposit owed,
or unpaid balance thereof, divided by the present value factor for the
retiree's attained age (in full years) at the time of retirement. The
reduced monthly rate will then be rounded down to the next lower dollar
amount and becomes the rate of annuity payable.
(3) For the purpose of paragraph (b)(2) of this section, the terms
``present value factor'' and ``time of retirement'' have the same
meaning as in Sec. 831.2202.
[48 FR 38785, Aug. 26, 1983, as amended at 56 FR 6550, Feb. 19, 1991]
Sec. 831.304 Service with the Cadet Nurse Corps during World War II.
(a) Definitions and special usages. In this section--
(1) Basic pay is computed at the rate of $15 per month for the first
9 months of study; $20 per month for the 10th through the 21st month of
study; and $30 per month for any month in excess of 21.
(2) Cadet Nurse Corps service means any student or graduate nurse
training, in a non-Federal institution, as a participant in a plan
approved under section 2 of the Act of June 15, 1943 (57 Stat. 153).
(3) CSRS means the Civil Service Retirement System.
(b) Conditions for creditability. As provided by Pub. L. 99-638, an
individual who performed service with the Cadet Nurse Corps is entitled
to credit under CSRS if--
(1) The service as a participant in the Corps totaled 2 years or
more;
(2) The individual submits an application for service credit to OPM
no later than January 10, 1988;
(3) The individual is employed by the Federal Government in a
position subject to CSRS at the time he or she applies to OPM for
service credit; and
(4) The individual makes a deposit for the service before separating
from the Federal Government for retirement purposes. Contrary to the
policy ``deeming'' the deposit to be made for alternative annuity
computation purposes, these deposits must be physically in the
possession of the individual's employing agency before his or her
separation for retirement purposes.
(c) Processing the application for service credit. Upon receiving an
application requesting credit for service with the Cadet Nurse Corps,
OPM will determine whether all conditions for creditability have been
met, compute the deposit (including any interest) as specified by
sections 8334(e) (2) and (3) of title 5, United States Code, based upon
the appropriate percentage of basic pay that would have been deducted
from the individual's pay at the time the service was performed, and
advise the agency and the employee of the total amount of the deposit
due.
(d) Agency collection and submission of deposit. (1) The
individual's employing agency must establish a deposit account showing
the total amount due and a payment schedule (unless deposit is made in
one lump sum), and record the date and amount of each payment.
(2) lf the individual cannot make payment in one lump sum, the
employing agency must accept installment payments (by allotments or
otherwise). However, the employing agency is not required to accept
individual checks in amounts less than $50.
(3) If the employee dies before completing the deposit, the
surviving spouse may elect to complete the payment to the employing
agency in one lump sum; however, the surviving spouse will not be able
to initiate an application for such service credit.
(4) Payments received by the employing agency must be remitted to
OPM immediately for deposit to the Civil Service Retirement and
Disability Fund.
(5) Once the employee's deposit has been paid in full or closed out,
the employing agency must submit the documentation pertaining to the
deposit to
[[Page 80]]
OPM in accordance with published instructions.
[52 FR 43047, Nov. 9, 1987]
Sec. 831.305 Service with a nonappropriated fund instrumentality after June 18, 1952, but before January 1, 1966.
(a) Definitions and special usages. In this section--
(1) Service in a nonappropriated fund instrumentality is any service
performed by an employee that involved conducting arts and crafts,
drama, music, library, service (i.e., recreation) club, youth
activities, sports or recreation programs (including any outdoor
recreation programs) for personnel of the armed forces. Service is not
creditable if it was performed in programs other than those specifically
named in this subsection.
(2) Certification by the head of a nonappropriated fund
instrumentality can also be certification by the National Personnel
Records Center or by an official of another Federal agency having
possession of records that will verify an individual's service.
(3) CSRS means the Civil Service Retirement System.
(b) Conditions for creditability. Pursuant to Pub. L. 99-638 and
provided the same period of service has not been used to obtain annuity
payable from a nonappropriated fund retirement plan, an individual who
performed service in a nonappropriated fund instrumentality is entitled
to credit under CSRS if--
(1) The service was performed after June 18, 1952, but before
January 1, 1966; and
(2) The individual was employed in a position subject to CSRS on
November 9, 1986.
(c) Deposit for service is not necessary. It is not necessary for an
individual to make a deposit for service performed with a
nonappropriated fund instrumentality to receive credit for such service.
However, if the individual does not elect to make a deposit, his or her
annuity is reduced by 10 percent of the amount that should have been
deposited for the period of service (including any interest) as
specified by sections 8334(e) (2) and (3) of title 5, United States
Code. When an employee elects an alternative annuity and also elects to
make the deposit, OPM will deem the deposit to be made for purposes of
conputing the alternative annuity.
[52 FR 43048, Nov. 9, 1987]
Sec. 831.306 Service as a National Guard technician before January 1, 1969.
(a) Definitions. In this section--(1) Service as a National Guard
technician is service performed under section 709 of title 32, United
States Code (or under a prior corresponding provision of law) before
January 1, 1969.
(2) CSRS means the Civil Service Retirement System.
(b) Conditions for crediting service to CSRS employees after
November 5, 1990. An employee subject to CSRS retirement deductions
whose only service as a National Guard technician was performed prior to
January 1, 1969, is entitled to credit under CSRS if--
(1) The individual submits to OPM an application for service credit
in a form prescribed by OPM;
(2) The individual is employed by the Federal Government in a
position subject to CSRS retirement deductions after November 5, 1990;
and
(3) The individual completes the deposit for the service through
normal service credit channels before final adjudication of his or her
application for retirement or has the deposit deemed made when he or she
elects the alternative form of annuity.
(c) Processing the CSRS employee's application for service credit.
(1) If an employee described in paragraph (b) of this section makes an
application for service credit, OPM will determine whether all
conditions for creditability have been met, compute the deposit and send
the employee notice of the payment required and the procedures for
submitting the payments to OPM.
(2) The deposit will be computed based on--
(i) The appropriate percentage of basic pay that would have been
deducted from the individual's pay at the time the service was
performed; and
(ii) Interest at the rate of 3 percent per year computed as
specified by section 8334(e)(2) of title 5, United States Code, until
the date the deposit is paid.
[[Page 81]]
(d) Conditions for crediting service to CSRS annuitants and former
Federal employees who separated after December 31, 1968, and before
November 6, 1990--(1) Former Federal employees. Former Federal employees
who were subject to CSRS retirement deductions and separated after
December 31, 1968, but before November 6, 1990, with title to a deferred
annuity, may make a deposit for pre-1969 National Guard technician
service provided they--
(i) Submit a written service credit application for the pre-1969
National Guard technician service to OPM before November 6, 1991; and
(ii) Complete a deposit for the additional service in a lump sum or
in installment payments of $50 or more. Payments must be completed
before their retirement claim is finally adjudicated, unless the deposit
is deemed made when they elect an alternative form of annuity.
(2) Annuitants and survivors. Individuals who were entitled to
receive an immediate annuity (or survivor annuity benefits) as of
November 6, 1990, may make a deposit for pre-1969 National Guard
technician service provided they--
(i) Submit a written application for service credit to OPM before
November 6, 1991; and
(ii) Complete a deposit for the additional service in a lump sum or
in equal monthly annuity installments to be completed within 24 months
of the date of the complete written application.
(3) To determine the commencing date of the deposit installment
payment period for annuitants and survivors, the ``date of application''
will be considered to be the first day of the second month beginning
after OPM receives a complete written application from the individual.
(4) To be a complete application, the individual's written request
for pre-1969 National Guard technician service credit must also include
a certification of the dates of employment and the rates of pay received
by the individual during the employment period. The individual may
obtain certification of his or her service from the Adjutant General of
the State in which the service was performed.
(e) Processing annuitants', survivors' or former employees'
applications for service credit--(1) OPM determines creditable service.
OPM will determine whether all conditions for crediting the additional
service have been met, compute the amount of the deposit, and notify the
individual.
(2) Computing the deposit. The deposit will be computed based on--
(i) The appropriate percentage of basic pay that would have been
deducted from the individual's pay at the time the service was
performed; and
(ii) Interest at the rate of 3 percent per year as specified by
section 8334(e)(2) of title 5, United States Code, to--
(A) The midpoint of the 24-month installment period or if paid in a
lump sum, the date payment is made if the individual is an annuitant or
survivor; or
(B) The date the deposit is paid or the commencing date of annuity,
whichever comes first, if the individual is a former employee.
(3) Individuals who are annuitants or survivors as of November 6,
1990. (i) OPM will notify annuitants and survivors of the amount of the
deposit and give them a proposed installment schedule for paying the
deposit from monthly annuity payments. The proposed installment payments
will consist of equal monthly payments that will not exceed a period 24
months from the date a complete written application is received by OPM.
(ii) The annuitant or survivor may allow the installments to be
deducted from his or her annuity as proposed or make payment in a lump
sum within 30 days from the date of the notice.
(iii) Increased annuity payments will begin to accrue the first day
of the month after OPM receives a complete written application.
(iv) If an annuitant dies before completing the deposit installment
payments, the remaining installments will be deducted as established for
the annuitant, from benefits payable to the survivor annuitant (but not
if the only survivor benefit is payable to a child or children of the
deceased), if any. If no survivor annuity is payable, OPM may collect
the balance of the deposit from
[[Page 82]]
any lump-sum benefits payable or the decedent's estate, if any.
(4) Former employees who separated after December 31, 1968, but
before November 6, 1990. A former employee with title to a deferred
annuity that commences after November 6, 1990, will be billed for the
amount of the deposit due and informed of the procedures for sending
payments to OPM. If payment is to be made in installments, each payment
must be at least $50 and the total deposit due must be completed before
final adjudication of the retirement claim, unless the deposit is deemed
made when he or she elects an alternative form of annuity.
[56 FR 6554, Feb. 19, 1991, as amended at 56 FR 55595, Oct. 29, 1991; 56
FR 67467, Dec. 31, 1991]
Sec. 831.307 Contract service.
Contract service with the United States will only be included in the
computation of, or used to establish title to, an annuity under
subchapter III of chapter 83 of title 5, United States Code, if--
(a) The employing agency exercised an explicit statutory authority
to appoint an individual into the civil service by contract; or
(b) The head of the agency which was party to the contract, based on
a timely-filed application, in accordance with section 110 of Public Law
100-238, and the regulations promulgated by OPM pursuant to that
statute, certifies that the agency intended that an individual be
considered as having been appointed to a position in which (s)he would
have been subject to subchapter III of chapter 83 of title 5, United
States Code, and deposit has been paid in accordance with OPM's
regulations.
[55 FR 53135, Dec. 27, 1990]