[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2025 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 5
Administrative Personnel
________________________
Parts 700 to 1199
Revised as of January 1, 2025
Containing a codification of documents of general
applicability and future effect
As of January 1, 2025
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 5:
Chapter I--Office of Personnel Management
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 747
Alphabetical List of Agencies Appearing in the CFR...... 767
List of CFR Sections Affected........................... 777
[[Page iv]]
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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.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is adequately summarized in the preamble
of the final rule and is available to the extent necessary to afford
fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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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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and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2025
[[Page ix]]
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, 2025.
For this volume, Christine Colaninno was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
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
[[Page 3]]
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (CONTINUED)
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SUBCHAPTER B--CIVIL SERVICE REGULATIONS (CONTINUED)
Part Page
700-714
[Reserved]
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
724 Implementation of Title II of the
Notification and Federal Employee
Antidiscrimination and Retaliation Act
of 2002................................. 22
730 Notification of post-employment restrictions 28
731 Suitability and fitness..................... 29
732 National security positions................. 45
733 Political activity--Federal employees
residing in designated localities....... 47
734 Political activities of Federal employees... 52
735 Employee responsibilities and conduct....... 68
736 Personnel investigations.................... 70
752 Adverse actions............................. 71
754 Complaint procedures, adverse actions, and
appeals for criminal history inquiries
prior to conditional offer.............. 83
771 Agency administrative grievance system...... 87
772 Interim relief.............................. 87
792 Federal employees' health, counseling, and
work/life programs...................... 88
831 Retirement.................................. 91
835 Debt collection............................. 210
837 Reemployment of annuitants.................. 213
838 Court orders affecting retirement benefits.. 225
839 Correction of retirement coverage errors
under the Federal Erroneous Retirement
Coverage Corrections Act................ 282
[[Page 4]]
841 Federal Employees Retirement System--general
administration.......................... 298
842 Federal Employees Retirement System--basic
annuity................................. 322
843 Federal Employees Retirement System--death
benefits and employee refunds........... 378
844 Federal Employees' Retirement System--
disability retirement................... 393
845 Federal Employees Retirement System--debt
collection.............................. 402
846 Federal Employees Retirement System--
elections of coverage................... 413
847 Elections of retirement coverage by current
and former employees of nonappropriated
fund instrumentalities.................. 425
848 Phased retirement........................... 443
849 Representative payees....................... 452
850 Electronic retirement processing............ 458
870 Federal Employees' Group Life Insurance
Program................................. 462
875 Federal Long Term Care Insurance Program.... 498
880 Retirement and insurance benefits during
periods of unexplained absence.......... 508
890 Federal Employees Health Benefits Program... 511
891 Retired Federal employees health benefits... 632
892 Federal flexible benefits plan: pre-tax
payment of health benefits premiums..... 640
894 Federal employees dental and vision
insurance program....................... 647
900 Intergovernmental Personnel Act programs.... 668
911 Procedures for States and localities to
request indemnification................. 686
919 Governmentwide debarment and suspension
(nonprocurement)........................ 687
920 Timing of criminal history inquiries........ 710
930 Programs for specific positions and
examinations (miscellaneous)............ 712
950 Solicitation of Federal civilian and
uniformed service personnel for
contributions to private voluntary
organizations........................... 722
960 Federal Executive Boards.................... 739
990
[Reserved]
SUBCHAPTER C--REGULATIONS GOVERNING EMPLOYEES OF THE OFFICE OF PERSONNEL
MANAGEMENT
1001 OPM employee responsibilities and conduct... 743
1002-1199
[Reserved]
[[Page 5]]
SUBCHAPTER B_CIVIL SERVICE REGULATIONS (CONTINUED)
PARTS 700 714 [RESERVED]
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.
[[Page 6]]
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
[[Page 7]]
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 underrepresentation.
(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
[[Page 8]]
implementation to an appropriate 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
[[Page 9]]
the agency or unit, nature of jobs and their 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
[[Page 10]]
reports it considers necessary in carrying out its responsibilities
under this subpart.
(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 38 U.S.C. 4214, and section 307 of the Civil Service Reform Act of
1978 (5 U.S.C. 3112).
[70 FR 72068, Dec. 1, 2005]
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 official
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
[[Page 11]]
must specify the period of time it covers.
(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.
(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.
[48 FR 193, Jan. 4, 1983, as amended at 66 FR 66711, Dec. 27, 2001]
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]
Sec. 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.)
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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:
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\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\
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\4\ Conference Report on Civil Service Reform Act of 1978, No. 95-
1272, p. 145.
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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, 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 (Sec. Sec. 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.
Sec. Sec. 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.
Sec. Sec. 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.
Sec. Sec. 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. 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.
Sec. Sec. 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.
Sec. Sec. 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 724_IMPLEMENTATION OF TITLE II OF THE NOTIFICATION AND FEDERAL
EMPLOYEE ANTIDISCRIMINATION AND RETALIATION ACT OF 2002-
-Table of Contents
Subpart A_Reimbursement of Judgment Fund
Sec.
724.101 Purpose and scope.
724.102 Definitions.
724.103 Agency obligations.
724.104 Procedures.
724.105 Compliance.
724.106 Effective date.
Subpart B_Notification of Rights and Protections and Training
724.201 Purpose and scope.
724.202 Notice obligations.
724.203 Training obligations.
Subpart C_Annual Report
724.301 Purpose and scope.
724.302 Reporting obligations.
Subpart D_Best Practices
724.401 Purpose and scope.
724.402 Best practices study.
724.403 Advisory guidelines.
724.404 Agency obligations
Authority: Sec. 204 of Pub. L. 107-174, 116 Stat. 566; Presidential
Memorandum dated July 8, 2003, ``Delegation of Authority Under Section
204(a) of the Notification and Federal Employee Antidiscrimination Act
of 2002.''
Source: 71 FR 27187, May 10, 2006, unless otherwise noted.
[[Page 23]]
Subpart A_Reimbursement of Judgement Fund
Sec. 724.101 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to reimburse the Judgment Fund for
payments. The regulations describe agency obligations and the procedures
for reimbursement and compliance.
Sec. 724.102 Definitions.
In this part:
Agency means an Executive agency as defined in 5 U.S.C. 105, the
United States Postal Service, or the Postal Rate Commission;
Antidiscrimination Laws refers to 5 U.S.C. 2302(b)(1), 5 U.S.C.
2302(b)(9) as applied to conduct described in 5 U.S.C. 2302(b)(1), 29
U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42
U.S.C. 2000e-16.
Applicant for Federal employment means an individual applying for
employment in or under a Federal agency;
Discipline means any one or a combination of the following actions:
reprimand, suspension without pay, reduction in grade or pay, or
removal.
Employee means an individual employed in or under a Federal agency;
Former Employee means an individual formerly employed in or under a
Federal agency;
Judgment Fund means the Judgment Fund established by 31 U.S.C. 1304;
No FEAR Act means the ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002;''
Notice means the written information provided by Federal agencies
about the rights and protections available under Federal
Antidiscrimination Laws and Whistleblower Protection Laws.
Payment, subject to the following exception, means a disbursement
from the Judgment Fund on or after October 1, 2003, to an employee,
former employee, or applicant for Federal employment, in accordance with
28 U.S.C. 2414, 2517, 2672, 2677 or with 31 U.S.C. 1304, that involves
alleged discriminatory or retaliatory conduct described in 5 U.S.C.
2302(b)(1) and (b)(8) or (b)(9) as applied to conduct described in 5
U.S.C. 2302(b)(1) and/or (b)(8) or conduct described in 29 U.S.C.
206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C.
2000e-16. For a proceeding involving more than one disbursement from the
Judgment Fund, however, this term shall apply only if the first
disbursement occurred on or after October 1, 2003.
Training means the process by which Federal agencies instruct their
employees regarding the rights and remedies applicable to such employees
under the Federal Antidiscrimination Laws and Whistleblower Protection
Laws.
Whistleblower Protection Laws refers to 5 U.S.C. 2302(b)(8) or 5
U.S.C. 2302(b)(9) as applied to conduct described in 5 U.S.C.
2302(b)(8).
[71 FR 27187, May 10, 2006, as amended at 71 FR 41098, July 20, 2006; 71
FR 78037, Dec. 28, 2006]
Sec. 724.103 Agency obligations.
A Federal agency (or its successor agency) must reimburse the
Judgment Fund for payments covered by the No FEAR Act. Such
reimbursement must be made within a reasonable time as described in
Sec. 724.104.
Sec. 724.104 Procedures.
(a) The procedures that agencies must use to reimburse the Judgment
Fund are those prescribed by the Financial Management Service (FMS), the
Department of the Treasury, in Chapter 3100 of the Treasury Financial
Manual. All reimbursements to the Judgment Fund covered by the No FEAR
Act are expected to be fully collectible from the agency. FMS will
provide written notice to the agency's Chief Financial Officer within 15
business days after payment from the Judgment Fund.
(b) Within 45 business days of receiving the FMS notice, agencies
must reimburse the Judgment Fund or contact FMS to make arrangements in
writing for reimbursement.
Sec. 724.105 Compliance.
An agency's failure to reimburse the Judgment Fund, to contact FMS
within 45 business days after receipt of an FMS notice for reimbursement
under Sec. 724.104 will be recorded on an annual
[[Page 24]]
basis and posted on the FMS Web site. After an agency meets the
requirements of Sec. 724.104, the recording will be eliminated no later
than the next annual posting process.
Sec. 724.106 Effective date.
This subpart is effective on October 1, 2003.
Subpart B_Notification of Rights and Protections and Training
Source: 71 FR 41098, July 20, 2006, unless otherwise noted.
Sec. 724.201 Purpose and scope.
(a) This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to notify all employees, former
employees, and applicants for Federal employment of the rights and
protections available to them under the Federal Antidiscrimination Laws
and Whistleblower Protection Laws. This subpart also implements Title II
concerning the obligation of agencies to train their employees on such
rights and remedies. The regulations describe agency obligations and the
procedures for written notification and training.
(b) Pursuant to section 205 of the No FEAR Act, neither that Act nor
this notice creates, expands or reduces any rights otherwise available
to any employee, former employee or applicant under the laws of the
United States, including the provisions of law specified in 5 U.S.C.
2302(d).
Sec. 724.202 Notice obligations.
(a) Each agency must provide notice to all of its employees, former
employees, and applicants for Federal employment about the rights and
remedies available under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them.
(b) The notice under this part must be titled, ``No FEAR Act
Notice.''
(c) Each agency must provide initial notice within 60 calendar days
after September 18, 2006. Thereafter, the notice must be provided by the
end of each successive fiscal year and any posted materials must remain
in place until replaced or revised.
(d) After the initial notice, each agency must provide the notice to
new employees within 90 calendar days of entering on duty.
(e) Each agency must provide the notice to its employees in paper
(e.g., letter, poster or brochure) and/or electronic form (e.g., e-mail,
internal agency electronic site, or Internet Web site). Each agency must
publish the initial notice in the Federal Register. Agencies with
Internet Web sites must also post the notice on those Web sites, in
compliance with section 508 of the Rehabilitation Act of 1973, as
amended. For agencies with components that operate Internet Web sites,
the notice must be made available by hyperlinks from the Internet Web
sites of both the component and the parent agency. An agency may meet
its paper and electronic notice obligation to former employees and
applicants by publishing the initial notice in the Federal Register and
posting the notice on its Internet Web site if it has one.
(f) To the extent required by law and upon request by employees,
former employees and applicants, each agency must provide the notice in
alternative, accessible formats.
(g) Unless an agency is exempt from the cited statutory provisions,
the following is the minimum text to be included in the notice. Each
agency may incorporate additional information within the model
paragraphs, as appropriate.
Model Paragraphs
No Fear Act Notice
On May 15, 2002, Congress enacted the ``Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002,'' which is now
known as the No FEAR Act. One purpose of the Act is to ``require that
Federal agencies be accountable for violations of antidiscrimination and
whistleblower protection laws.'' Public Law 107-174, Summary. In support
of this purpose, Congress found that ``agencies cannot be run
effectively if those agencies practice or tolerate discrimination.''
Public Law 107-174, Title I, General Provisions, section 101(1).
The Act also requires this agency to provide this notice to Federal
employees, former Federal employees and applicants for Federal
employment to inform you of the rights and protections available to you
under
[[Page 25]]
Federal antidiscrimination and whistleblower protection laws.
Antidiscrimination Laws
A Federal agency cannot discriminate against an employee or
applicant with respect to the terms, conditions or privileges of
employment on the basis of race, color, religion, sex, national origin,
age, disability, marital status or political affiliation. Discrimination
on these bases is prohibited by one or more of the following statutes: 5
U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29
U.S.C. 791 and 42 U.S.C. 2000e-16.
If you believe that you have been the victim of unlawful
discrimination on the basis of race, color, religion, sex, national
origin or disability, you must contact an Equal Employment Opportunity
(EEO) counselor within 45 calendar days of the alleged discriminatory
action, or, in the case of a personnel action, within 45 calendar days
of the effective date of the action, before you can file a formal
complaint of discrimination with your agency. See, e.g. 29 CFR 1614. If
you believe that you have been the victim of unlawful discrimination on
the basis of age, you must either contact an EEO counselor as noted
above or give notice of intent to sue to the Equal Employment
Opportunity Commission (EEOC) within 180 calendar days of the alleged
discriminatory action. If you are alleging discrimination based on
marital status or political affiliation, you may file a written
complaint with the U.S. Office of Special Counsel (OSC) (see contact
information below). In the alternative (or in some cases, in addition),
you may pursue a discrimination complaint by filing a grievance through
your agency's administrative or negotiated grievance procedures, if such
procedures apply and are available.
Whistleblower Protection Laws
A Federal employee with authority to take, direct others to take,
recommend or approve any personnel action must not use that authority to
take or fail to take, or threaten to take or fail to take, a personnel
action against an employee or applicant because of disclosure of
information by that individual that is reasonably believed to evidence
violations of law, rule or regulation; gross mismanagement; gross waste
of funds; an abuse of authority; or a substantial and specific danger to
public health or safety, unless disclosure of such information is
specifically prohibited by law and such information is specifically
required by Executive order to be kept secret in the interest of
national defense or the conduct of foreign affairs.
Retaliation against an employee or applicant for making a protected
disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you
have been the victim of whistleblower retaliation, you may file a
written complaint (Form OSC-11) with the U.S. Office of Special Counsel
at 1730 M Street NW., Suite 218, Washington, DC 20036-4505 or online
through the OSC Web site--http://www.osc.gov.
Retaliation for Engaging in Protected Activity
A Federal agency cannot retaliate against an employee or applicant
because that individual exercises his or her rights under any of the
Federal antidiscrimination or whistleblower protection laws listed
above. If you believe that you are the victim of retaliation for
engaging in protected activity, you must follow, as appropriate, the
procedures described in the Antidiscrimination Laws and Whistleblower
Protection Laws sections or, if applicable, the administrative or
negotiated grievance procedures in order to pursue any legal remedy.
Disciplinary Actions
Under the existing laws, each agency retains the right, where
appropriate, to discipline a Federal employee for conduct that is
inconsistent with Federal Antidiscrimination and Whistleblower
Protection Laws up to and including removal. If OSC has initiated an
investigation under 5 U.S.C. 1214, however, according to 5 U.S.C.
1214(f), agencies must seek approval from the Special Counsel to
discipline employees for, among other activities, engaging in prohibited
retaliation. Nothing in the No FEAR Act alters existing laws or permits
an agency to take unfounded disciplinary action against a Federal
employee or to violate the procedural rights of a Federal employee who
has been accused of discrimination
Additional Information
For further information regarding the No FEAR Act regulations, refer
to 5 CFR part 724, as well as the appropriate offices within your agency
(e.g., EEO/civil rights office, human resources office or legal office).
Additional information regarding Federal antidiscrimination,
whistleblower protection and retaliation laws can be found at the EEOC
Web site--http://www.eeoc.gov and the OSC Web site--http://www.osc.gov.
Existing Rights Unchanged
Pursuant to section 205 of the No FEAR Act, neither the Act nor this
notice creates, expands or reduces any rights otherwise available to any
employee, former employee or applicant under the laws of the United
States, including the provisions of law specified in 5 U.S.C. 2302(d).
[[Page 26]]
Sec. 724.203 Training obligations.
(a) Each agency must develop a written plan to train all of its
employees (including supervisors and managers) about the rights and
remedies available under the Antidiscrimination Laws and Whistleblower
Protection Laws applicable to them.
(b) Each agency shall have the discretion to develop the
instructional materials and method of its training plan. Each agency
training plan shall describe:
(1) The instructional materials and method of the training,
(2) The training schedule, and
(3) The means of documenting completion of training.
(c) Each agency may contact EEOC and/or OSC for information and/or
assistance regarding the agency's training program. Neither agency,
however, shall have authority under this regulation to review or approve
an agency's training plan.
(d) Each agency is encouraged to implement its training as soon as
possible, but required to complete the initial training under this
subpart for all employees (including supervisors and managers) by
December 17, 2006. Thereafter, each agency must train all employees on a
training cycle of no longer than every 2 years.
(e) After the initial training is completed, each agency must train
new employees as part of its agency orientation program or other
training program. Any agency that does not use a new employee
orientation program for this purpose must train new employees within 90
calendar days of the new employees' appointment.
Subpart C_Annual Report
Source: 71 FR 78037, Dec. 28, 2006, unless otherwise noted.
Sec. 724.301 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of Federal agencies to report on specific topics concerning
Federal Antidiscrimination Laws and Whistleblower Protection Laws
applicable to them covering employees, former employees, and applicants
for Federal employment.
Sec. 724.302 Reporting obligations.
(a) Except as provided in paragraph (b) of this section, each agency
must report no later than 180 calendar days after the end of each fiscal
year the following items:
(1) The number of cases in Federal court pending or resolved in each
fiscal year and arising under each of the respective provisions of the
Federal Antidiscrimination Laws and Whistleblower Protection Laws
applicable to them as defined in Sec. 724.102 of subpart A of this part
in which an employee, former Federal employee, or applicant alleged a
violation(s) of these laws, separating data by the provision(s) of law
involved;
(2) In the aggregate, for the cases identified in paragraph (a)(1)
of this section and separated by provision(s) of law involved:
(i) The status or disposition (including settlement);
(ii) The amount of money required to be reimbursed to the Judgment
Fund by the agency for payments as defined in Sec. 724.102 of subpart A
of this part;
(iii) The amount of reimbursement to the Fund for attorney's fees
where such fees have been separately designated;
(3) In connection with cases identified in paragraph (a)(1) of this
section, the total number of employees in each fiscal year disciplined
as defined in Sec. 724.102 of subpart A of this part and the specific
nature, e.g., reprimand, etc., of the disciplinary actions taken,
separated by the provision(s) of law involved;
(4) The final year-end data about discrimination complaints for each
fiscal year that was posted in accordance with Equal Employment
Opportunity Regulations at subpart G of title 29 of the Code of Federal
Regulations (implementing section 301(c)(1)(B) of the No FEAR Act);
(5) Whether or not in connection with cases in Federal court, the
number of employees in each fiscal year disciplined as defined in Sec.
724.102 of subpart A of this part in accordance with any agency policy
described in paragraph (a)(6) of this section. The specific
[[Page 27]]
nature, e.g., reprimand, etc., of the disciplinary actions taken must be
identified.
(6) A detailed description of the agency's policy for taking
disciplinary action against Federal employees for conduct that is
inconsistent with Federal Antidiscrimination Laws and Whistleblower
Protection Laws or for conduct that constitutes another prohibited
personnel practice revealed in connection with agency investigations of
alleged violations of these laws;
(7) An analysis of the information provided in paragraphs (a)(1)
through (6) of this section in conjunction with data provided to the
Equal Employment Opportunity Commission in compliance with 29 CFR part
1614 subpart F of the Code of Federal Regulations. Such analysis must
include:
(i) An examination of trends;
(ii) Causal analysis;
(iii) Practical knowledge gained through experience; and
(iv) Any actions planned or taken to improve complaint or civil
rights programs of the agency with the goal of eliminating
discrimination and retaliation in the workplace;
(8) For each fiscal year, any adjustment needed or made to the
budget of the agency to comply with its Judgment Fund reimbursement
obligation(s) incurred under Sec. 724.103 of subpart A of this part;
and
(9) The agency's written plan developed under Sec. 724.203(a) of
subpart B of this part to train its employees.
(b) The first report also must provide information for the data
elements in paragraph (a) of this section for each of the five fiscal
years preceding the fiscal year on which the first report is based to
the extent that such data is available. Under the provisions of the No
FEAR Act, the first report was due March 30, 2005 without regard to the
status of the regulations. Thereafter, under the provisions of the No
FEAR Act, agency reports are due annually on March 30th. Agencies that
have submitted their reports before these regulations became final must
ensure that they contain data elements 1 through 8 of paragraph (a) of
this section and provide any necessary supplemental reports by April 25,
2007. Future reports must include data elements 1 through 9 of paragraph
(a) of this section.
(c) Agencies must provide copies of each report to the following:
(1) Speaker of the U.S. House of Representatives;
(2) President Pro Tempore of the U.S. Senate;
(3) Committee on Governmental Affairs, U.S. Senate;
(4) Committee on Government Reform, U.S. House of Representatives;
(5) Each Committee of Congress with jurisdiction relating to the
agency;
(6) Chair, Equal Employment Opportunity Commission;
(7) Attorney General; and
(8) Director, U.S. Office of Personnel Management.
Subpart D_Best Practices
Source: 71 FR 78037, Dec. 28, 2006, unless otherwise noted.
Sec. 724.401 Purpose and scope.
This subpart implements Title II of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 concerning the
obligation of the President or his designee (OPM) to conduct a
comprehensive study of best practices in the executive branch for taking
disciplinary actions against employees for conduct that is inconsistent
with Federal Antidiscrimination and Whistleblower Protection Laws and
the obligation to issue advisory guidelines for agencies to follow in
taking appropriate disciplinary actions in such circumstances.
Sec. 724.402 Best practices study.
(a) OPM will conduct a comprehensive study in the executive branch
to identify best practices for taking appropriate disciplinary actions
against Federal employees for conduct that is inconsistent with Federal
Antidiscrimination and Whistleblower Protection Laws.
(b) The comprehensive study will include a review of agencies'
discussions of their policies for taking such disciplinary actions as
reported under Sec. 724.302 of subpart C of this part.
[[Page 28]]
Sec. 724.403 Advisory guidelines.
OPM will issue advisory guidelines to Federal agencies incorporating
the best practices identified under Sec. 724.402 that agencies may
follow to take appropriate disciplinary actions against employees for
conduct that is inconsistent with Federal Antidiscrimination Laws and
Whistleblower Laws.
Sec. 724.404 Agency obligations.
(a) Within 30 working days of issuance of the advisory guidelines
required by Sec. 724.403, each agency must prepare a written statement
describing in detail:
(1) Whether it has adopted the guidelines and if it will fully
follow the guidelines;
(2) If such agency has not adopted the guidelines, the reasons for
non-adoption; and
(3) If such agency will not fully follow the guidelines, the reasons
for the decision not to do so and an explanation of the extent to which
the agency will not follow the guidelines.
(b) Each agency's written statement must be provided within the time
limit stated in paragraph (a) of this section to the following:
(1) Speaker of the U.S. House of Representatives;
(2) President Pro Tempore of the U.S. Senate;
(3) Chair, Equal Employment Opportunity Commission;
(4) Attorney General; and
(5) Director, U.S. Office of Personnel Management.
PART 730_NOTIFICATION OF POST-EMPLOYMENT RESTRICTIONS--Table of Contents
Sec.
730.101 Purpose.
730.102 Definitions.
730.103 Coverage.
730.104 Notification.
730.105 Savings provision.
Authority: 5 U.S.C. 7302 and sec. 1125(b) of the National Defense
Authorization Act for FY 2004, Pub. L. 108-136, 117 Stat. 1392.
Source: 69 FR 61144, Oct. 15, 2004, unless otherwise noted.
Sec. 730.101 Purpose.
This part implements 5 U.S.C. 7302, which requires agencies to
provide written notice to senior executives and other individuals
covered by 18 U.S.C. 207(c)(2)(A)(ii) that they are subject to certain
post-employment conflict-of-interest restrictions in 18 U.S.C. 207(c).
Sec. 730.102 Definitions.
Agency means an Executive agency as defined in 5 U.S.C. 105, but
does not include the General Accounting Office.
Senior executive means a member of the Senior Executive Service
(SES).
Sec. 730.103 Coverage.
(a) The following individuals are subject to the post-employment
conflict-of-interest restrictions in 18 U.S.C. 207(c), as amended by
section 1125(b)(1) of the National Defense Authorization Act for FY
2004:
(1) Any individual, including a senior executive, who is paid at a
rate of basic pay equal to or greater than 86.5 percent of the rate for
level II of the Executive Schedule; and
(2) Any individual, including a senior executive, who as of November
23, 2003, was paid at a rate of basic pay, exclusive of any locality-
based comparability payments under 5 U.S.C. 5304, equal to or greater
than the rate of basic pay for level 5 of the Senior Executive Service
on that date (i.e., $134,000). These employees are subject to the post-
employment restrictions through November 24, 2005, without regard to any
subsequent changes in position or pay.
(b) Nothing in this part affects individuals serving in positions
described in 18 U.S.C. 207(c)(2)(A)(i), (iii), (iv), or (v).
Sec. 730.104 Notification.
(a) Agencies must provide written notification to senior executives
and other individuals covered by the amendment to 18 U.S.C.
207(c)(2)(A)(ii) that they are subject to the post-employment conflict-
of-interest restrictions in 18 U.S.C. 207, before, or as part of, any
personnel action that affects the employee's coverage under 18 U.S.C.
207(c)(1), including when employment or service in a covered position is
terminated. A copy of the written notice must be provided simultaneously
to the Designated Agency Ethics Official (or his or her delegate). The
[[Page 29]]
written notice must include information on the applicable penalties or
injunctions that may be imposed under 18 U.S.C. 216(a), (b), and (c) for
violations of the post-employment restrictions in 18 U.S.C. 207(c). The
notice also must indicate that employees covered by 18 U.S.C. 207(c) are
subject to 18 U.S.C. 207(f), which imposes additional post-employment
restrictions on representing, aiding, or advising certain foreign
entities.
(b) Notwithstanding paragraph (a) of this section, the post-
employment restrictions in 18 U.S.C. 207(c) apply to covered employees
without regard to whether they receive written notice from their
employing agency.
Sec. 730.105 Savings provision.
Any post-employment restrictions established under 18 U.S.C. 207 and
applicable prior to the first day of the first pay period beginning on
or after January 1, 2004, remain in effect.
PART 731_SUITABILITY AND FITNESS--Table of Contents
Subpart A_Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
731.104 Appointments subject to investigation.
731.105 Authority to take suitability actions.
731.106 Designation of public trust positions and investigative
requirements.
Subpart B_Suitability Determinations and Actions
731.201 Standard.
731.202 Criteria for making suitability determinations.
731.203 Suitability actions by OPM and other agencies.
731.204 Debarment by OPM.
731.205 Debarment by agencies.
731.206 Reporting requirements.
Subpart C_OPM Suitability Action Procedures for the Competitive Service
or Senior Executive Service
731.301 Scope.
731.302 Notice of proposed action.
731.303 Answer.
731.304 Decision.
Subpart D_Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
731.401 Scope.
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.
Subpart E_Appeal to the Merit Systems Protection Board of Suitability
actions in cases involving the Competitive Service or Career Senior
Executive Service
731.501 Appeal to the Merit Systems Protection Board.
Subpart F_Savings Provision
731.601 Savings provision.
Authority: 5 U.S.C. 1302, 3301, 7301, 9201-9206; Pub. L. 116-92,
sec. 1122(b)(1); E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218, as amended;
E.O. 13467, 3 CFR, 2009 Comp., p. 198; E.O. 13488, 3 CFR, 2010 Comp., p.
189; 5 CFR, parts 1, 2 and 5; Presidential Memorandum on Enhancing
Safeguards to Prevent the Undue Denial of Federal Employment
Opportunities to the Unemployed and Those Facing Financial Difficulty
Through No Fault of Their Own, January 31, 2014.
Effective Date Note: At 89 FR 102691, Dec. 18, 2024, the authority
citation for part 731 was revised, effective Jan. 17, 2025. For the
convenience of the user, the revised text is set forth as follows:
Authority: 5 U.S.C. 1302, 3301, 7301. E.O. 10577, 19 FR 7521, 3 CFR,
1954-1958 Comp., p. 218, as amended. E.O. 13467, 73 FR 38103, 3 CFR,
2009 Comp., p. 198, as amended. E.O. 13488, 74 FR 4111, 3 CFR, 2010
Comp., p. 189, as amended. E.O. 13764, 82 FR 8115, 3 CFR, 2017 Comp. p.
243. Presidential Memorandum of January 31, 2014, 3 CFR, 2014 Comp., p.
340. 5 CFR parts 1, 2, 5, and 6.
Source: 73 FR 20154, Apr. 15, 2008, unless otherwise noted.
Subpart A_Scope
Effective Date Note: At 89 FR 102691, Dec. 18, 2024, subpart A of
part 731 was revised, effective Jan. 17, 2025. For the convenience of
the user, the new subpart A of part 731 follows the text of this
subpart.
Sec. 731.101 Purpose.
(a) The purpose of this part is to establish criteria and procedures
for making determinations of suitability
[[Page 30]]
and for taking suitability actions regarding employment in covered
positions (as defined in paragraph (b) of this section) pursuant to 5
U.S.C. 3301, E.O. 10577 (3 CFR, 1954-1958 Comp., p. 218), as amended,
and 5 CFR 1.1, 2.1(a) and 5.2. Section 3301 of title 5, United States
Code, directs consideration of ``age, health, character, knowledge, and
ability for the employment sought.'' E.O. 10577 (codified in relevant
part at 5 CFR 1.1, 2.1(a) and 5.2) directs OPM to examine
``suitability'' for competitive Federal employment. This part concerns
only determinations of ``suitability,'' that is, those determinations
based on a person's character or conduct that may have an impact on the
integrity or efficiency of the service. Determinations made and actions
taken under this part are distinct from objections to eligibles or pass
overs of preference eligibles, and OPM's and agencies' decisions on such
requests, made under 5 U.S.C. 3318 and 5 CFR 332.406, as well as
determinations of eligibility for assignment to, or retention in,
sensitive national security positions made under E.O. 10450 (3 CFR,
1949-1953 Comp., p. 936), E.O. 12968, or similar authorities.
(b) Definitions. In this part:
Applicant means a person who is being considered or has been
considered for employment.
Appointee means a person who has entered on duty and is in the first
year of a subject-to-investigation appointment (as defined in Sec.
731.104).
Core Duty means a continuing responsibility that is of particular
importance to the relevant covered position or the achievement of an
agency's mission.
Covered position means a position in the competitive service, a
position in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, and a career
appointment to a position in the Senior Executive Service.
Days means calendar days unless otherwise specified in this part.
Employee means a person who has completed the first year of a
subject-to-investigation appointment.
Material means, in reference to a statement, one that is capable of
influencing, affects, or has a natural tendency to affect, an official
decision even if OPM or an agency does not rely upon it.
Suitability action means an outcome described in Sec. 731.203 and
may be taken only by OPM or an agency with delegated authority under the
procedures in subparts C and D of this part.
Suitability determination means a decision by OPM or an agency with
delegated authority that a person is suitable or is not suitable for
employment in covered positions in the Federal Government or a specific
Federal agency.
[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 10, 2008]
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) Under OMB Circular No. A-130 Revised, issued November 20, 2000,
agencies are to implement and maintain a program to ensure that adequate
protection is provided for all automated information systems. Agency
personnel screening programs may be based on procedures developed by
OPM. The Computer Security Act of 1987 (Pub. L. 100-235) provides
additional requirements for Federal automated information systems.
(c) OPM may set forth policies, procedures, criteria, standards,
quality control procedures, and supplementary guidance for the
implementation of this part in OPM issuances.
Sec. 731.103 Delegation to agencies.
(a) Subject to the limitations and requirements of paragraphs (f)
and (g) of this section, OPM delegates to the heads of agencies
authority for making suitability determinations and taking suitability
actions (including limited, agency-specific debarments under Sec.
731.205) in cases involving applicants for and appointees to covered
positions in the agency.
(b) When an agency, acting under delegated authority from OPM,
determines that a Governmentwide debarment by OPM under Sec. 731.204(a)
may be
[[Page 31]]
an appropriate action, it must refer the case to OPM for debarment
consideration. Agencies must make these referrals prior to any proposed
suitability action, but only after sufficient resolution of the
suitability issue(s), through subject contact or investigation, to
determine if a Governmentwide debarment appears warranted.
(c) Agencies exercising authority under this part by delegation from
OPM must adhere to OPM requirements as stated in this part and OPM's
issuances described in Sec. 731.102(c). Agencies must also implement
policies and maintain records demonstrating that they employ reasonable
methods to ensure adherence to these OPM issuances.
(d)(1) A hiring agency may not make specific inquiries concerning an
applicant's criminal or credit background in oral or written form
(including through the OF-306 or other forms used to conduct suitability
investigations for Federal employment, USAJOBS, or any other electronic
means) unless the hiring agency has made a conditional offer of
employment to the applicant. Agencies may request an exception to the
provision for making credit inquiries in advance of a conditional offer
in accordance with the provisions in 5 CFR part 330, subpart M. For
criminal inquiries prior to a conditional offer, this prohibition does
not apply to applicants for positions excepted under 5 CFR 920.201(b).
Agencies may make inquiries into an applicant's Selective Service
registration, military service, citizenship status, where applicable, or
previous work history, prior to making a conditional offer of employment
to an applicant.
(2) OPM reserves the right to undertake a determination of
suitability based upon evidence of falsification or fraud relating to an
examination or appointment at any point when information giving rise to
such a charge is discovered. OPM must be informed in all cases where
there is evidence of material, intentional false statements, or
deception or fraud in examination or appointment, and OPM will take a
suitability action where warranted.
(e) When an agency, exercising authority under this part by
delegation from OPM, makes a suitability determination or changes a
tentative favorable placement decision to an unfavorable decision, based
on an OPM report of investigation or upon an investigation conducted
pursuant to OPM-delegated authority, the agency must:
(1) Ensure that the records used in making the determination are
accurate, relevant, timely, and complete to the extent reasonably
necessary to ensure fairness to the person in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, the regulations in this part, and OPM
issuances as described in Sec. 731.102(c) have been observed;
(3) Consider all available information in reaching its final
decision on a suitability determination or suitability action, except
information furnished by a non-corroborated confidential source, which
may be used only for limited purposes, such as information used to
develop a lead or in interrogatories to a subject, if the identity of
the source is not compromised in any way; and
(4) Keep any record of the agency suitability determination or
action as required by OPM issuances as described in Sec. 731.102(c).
(f) OPM may revoke an agency's delegation to make suitability
determinations and take suitability actions under this part if an agency
fails to conform to this part or OPM issuances as described in Sec.
731.102(c).
(g) OPM retains jurisdiction to make final determinations and take
actions in all suitability cases where there is evidence that there has
been a material, intentional false statement, or deception or fraud in
examination or appointment. OPM also retains jurisdiction over all
suitability cases involving a refusal to furnish testimony as required
by Sec. 5.4 of this chapter. Agencies must refer these cases to OPM for
suitability determinations and suitability actions under this authority.
Although no prior approval is needed, notification to OPM is required if
the agency wants to take, or has taken, action under its own authority
(5 CFR part 315, 5 CFR part 359, or 5 CFR part 752) in cases involving
material, intentional false statement in examination or appointment, or
deception or fraud in examination or appointment; or refusal to furnish
testimony as required
[[Page 32]]
by Sec. 5.4 of this title. In addition, paragraph (a) of this section
notwithstanding, OPM may, in its discretion, exercise its jurisdiction
under this part in any case it deems necessary.
[73 FR 20154, Apr. 15, 2008, as amended at 81 FR 86561, Dec. 1, 2016; 88
FR 60330, Sept. 1, 2023]
Sec. 731.104 Appointments subject to investigation.
(a) To establish a person's suitability for employment, appointments
to covered positions identified in Sec. 731.101 require the person to
undergo an investigation by OPM or by an agency with delegated authority
from OPM to conduct investigations. However, except as provided in
paragraph (b)(2), an appointment will not be subject to investigation
when the person being appointed has undergone a background investigation
and the appointment involves:
(1) Appointment or conversion to an appointment in a covered
position if the person has been serving continuously with the agency for
at least 1 year in one or more covered positions subject to
investigation;
(2) Transfer to a covered position, provided the person has been
serving continuously for at least 1 year in a covered position subject
to investigation;
(3) Transfer or appointment from an excepted service position that
is not a covered position to a covered position, provided the person has
been serving continuously for at least 1 year in a position where the
person has been determined fit for appointment based on criteria
equivalent to the factors provided at 5 CFR 731.202;
(4) Appointment to a covered position from a position as an employee
working as a Federal Government contract employee, provided the person
has been serving continuously for at least 1 year in a job where a
Federal agency determined the contract employee was fit to perform work
on the contract based on criteria equivalent to the factors provided at
5 CFR 731.202; or
(5) Appointment to a covered position where there has been a break
in service of less than 24 months, and the service immediately preceding
the break was in a covered position, an excepted service position, or a
contract employee position described in paragraphs (a)(1) to (a)(4) of
this section.
(b)(1) Either OPM or an agency with delegated suitability authority
may investigate and take a suitability action against an applicant,
appointee, or employee in accordance with Sec. 731.105. There is no
time limit on the authority of OPM or an agency with delegated
suitability authority to conduct the required investigation of an
applicant who has been appointed to a position. An employee does not
have to serve a new probationary or trial period merely because his or
her appointment is subject to investigation under this section. An
employee's probationary or trial period is not extended because his or
her appointment is subject to investigation under this section.
(2) An appointment to a covered position also will be subject to
investigation when:
(i) The covered position requires a higher level of investigation
than previously conducted for the person being appointed; or
(ii) An agency obtains new information in connection with the
person's appointment that calls into question the person's suitability
under Sec. 731.202;
(3) Suitability determinations must be made for all appointments
that are subject to investigation.
(c) Positions that are intermittent, seasonal, per diem, or
temporary, not to exceed an aggregate of 180 days per year in either a
single continuous appointment or series of appointments, do not require
a background investigation as described in Sec. 731.106(c)(1). The
employing agency, however, must conduct such checks as it deems
appropriate to ensure the suitability of the person.
(d) Reinvestigation requirements under Sec. 731.106 for public
trust positions are not affected by this section.
(e) For purposes of this section, ``criteria equivalent to the
factors provided at 5 CFR 731.202'' are criteria that provide adequate
assurance that the person to be appointed, converted to an appointment,
or transferred is suitable to be employed in a covered position, as
determined by OPM, in issuances under this regulation. A decision by
[[Page 33]]
OPM, or by an agency applying guidance from OPM, that a prior fitness
determination was not based on criteria equivalent to the factors
provided at 5 CFR 731.202, and that a new investigation or adjudication
is necessary is not subject to review under section 731.501 of this
part.
[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 11, 2008;
76 FR 69608, Nov. 9, 2011]
Sec. 731.105 Authority to take suitability actions.
(a) Neither OPM nor an agency acting under delegated authority may
take a suitability action in connection with any application for, or
appointment to, a position that is not subject to investigation or check
under Sec. 731.104.
(b) OPM may take a suitability action under this part against an
applicant or appointee based on any of the criteria of Sec. 731.202;
(c) Except as limited by Sec. 731.103(g), an agency, exercising
delegated authority, may take a suitability action under this part
against an applicant or appointee based on the criteria of Sec.
731.202;
(d) OPM may take a suitability action under this part against an
employee based on the criteria of Sec. 731.202(b)(3), (4), or (8).
(e) An agency may not take a suitability action against an employee.
Nothing in this part precludes an agency from taking an adverse action
against an employee under the procedures and standards of part 752 of
this chapter or terminating a probationary employee under the procedures
of part 315 or part 359 of this chapter. An agency must notify OPM to
the extent required in Sec. 731.103(g) if it wants to take, or has
taken, action under these authorities.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. Agency heads must designate every covered
position within the agency at a high, moderate, or low risk level as
determined by the position's potential for adverse impact to the
efficiency or integrity of the service. OPM will provide an example of a
risk designation system for agency use in an OPM issuance as described
in Sec. 731.102(c).
(b) Public Trust positions. Positions at the high or moderate risk
levels would normally be designated as ``Public Trust'' positions. Such
positions may involve policy making, major program responsibility,
public safety and health, law enforcement duties, fiduciary
responsibilities or other duties demanding a significant degree of
public trust, and positions involving access to or operation or control
of financial records, with a significant risk for causing damage or
realizing personal gain.
(c) Investigative requirements. (1) Persons receiving an appointment
made subject to investigation under this part must undergo a background
investigation. OPM is authorized to establish minimum investigative
requirements correlating to risk levels. Investigations should be
initiated before appointment but no later than 14 calendar days after
placement in the position.
(2) All positions subject to investigation under this part must also
receive a sensitivity designation of Special-Sensitive, Critical-
Sensitive, or Noncritical-Sensitive, when appropriate. This designation
is complementary to the risk designation, and may have an effect on the
position's investigative requirement. Sections 732.201 and 732.202 of
this chapter detail the various sensitivity levels and investigative
requirements. Procedures for determining investigative requirements for
all positions based upon risk and sensitivity will be published in OPM
issuances, as described in Sec. Sec. 731.102(c) and 732.201(b).
(3) If suitability issues develop prior to the required
investigation, OPM or the agency may conduct an investigation sufficient
to resolve the issues and support a suitability determination or action,
if warranted. If the person is appointed, the minimum level of
investigation must be conducted as required by paragraph (c)(1) of this
section.
(d) Reinvestigation requirements. (1) Agencies must ensure that
reinvestigations are conducted and a determination made regarding
continued employment of persons occupying public trust
[[Page 34]]
positions at least once every 5 years. The nature of these
reinvestigations and any additional requirements and parameters will be
established in supplemental guidance issued by OPM.
(2) If, prior to the next required reinvestigation, a separate
investigation is conducted to determine a person's eligibility (or
continued eligibility) for access to classified information or to hold a
sensitive position, or as a result of a change in risk level as provided
in paragraph (e) of this section, and that investigation meets or
exceeds the requirements for a public trust reinvestigation, a new
public trust reinvestigation is not required. Such a completed
investigation restarts the cycle for a public trust reinvestigation for
that person.
(3) Agencies must notify all employees covered by this section of
the reinvestigation requirements under this paragraph.
(e) Risk level changes. If an employee or appointee experiences a
change to a higher position risk level due to promotion, demotion, or
reassignment, or the risk level of the employee's or appointee's
position is changed to a higher level, the employee or appointee may
remain in or encumber the position. Any upgrade in the investigation
required for the new risk level should be initiated within 14 calendar
days after the promotion, demotion, reassignment or new designation of
risk level is final.
(f) Completed investigations. Any suitability investigation (or
reinvestigation) completed by an agency under paragraphs (d) and (e) of
this section must result in a determination by the employing agency of
whether the findings of the investigation would justify an action under
this part or under another applicable authority, such as part 315, 359,
or 752 of this chapter. Section 731.103 addresses whether an agency may
take an action under this part, and whether the matter must be referred
to OPM for debarment consideration.
[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66492, Nov. 11, 2008;
76 FR 69608, Nov. 9, 2011]
Effective Date Note: At 89 FR 102691, Dec. 18, 2024, subpart A of
part 731 was revised, effective Jan. 17, 2025. For the convenience of
the user, the revised text is set forth as follows:
Subpart A_Scope
Sec. 731.101 Purpose.
(a) The following definitions apply for the purposes of this part:
Applicant means an individual who is being considered or has been
considered for employment in the competitive service or career Senior
Executive Service.
Appointee means an individual who has entered on duty and is in the
first year of employment in a competitive service or career Senior
Executive Service position when it is employment subject to
investigation. When the individual is serving a probationary or trial
period, the individual's status as an appointee will extend through the
end of the initial probationary/trial period, if longer than one year.
Competitive service or career Senior Executive Service, for the
purposes of this part, refers to a position in the competitive service,
a position in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, and a career
appointment to a position in the Senior Executive Service.
Contractor employee means an individual who performs work for or on
behalf of any agency under a contract and who, to perform the work
specified under the contract, will require access to space, information,
information technology systems, staff, or other assets of the Federal
Government, and who could, by the nature of their access or duties,
adversely affect the integrity or efficiency of the Government. Such
contracts include but are not limited to: personal service contracts;
contracts between any non-Federal entity and any agency; and
subcontracts between any non-Federal entity and another non-Federal
entity to perform work related to the primary contract with the agency.
The term contractor employee includes employees of a grantee of any
agency or any other category of person who performs work for or on
behalf of an agency but does not include a Federal employee.
Core duty means a continuing responsibility that is of particular
importance to the relevant covered position or the achievement of an
agency's mission.
Days means calendar days unless otherwise noted in this part.
Employee means an individual who has completed the first year of an
appointment in the competitive service or career Senior Executive
Service when it is employment subject to investigation and is no longer
serving the initial probation or trial period, if applicable. In the
case of an appointee whose initial probation or trial period is for more
than one year, the individual will be
[[Page 35]]
considered an employee at the completion of the initial probation or
trial period.
Employment subject to investigation, except as described elsewhere
in this part, includes an appointment to the competitive service or
career Senior Executive Service, an appointment to the excepted service,
employment as a contractor employee, or employment as a nonappropriated
fund employee.
Excepted service means any position of the executive branch either
excepted from the competitive service or which is not in the Senior
Executive Service.
(1) For the purposes of this part, excepted service does not
include:
(i) Any position in an element of the intelligence community as
defined in the National Security Act of 1947, as amended, to the extent
that the individual is not otherwise subject to OPM appointing
authorities;
(ii) Any position where OPM is statutorily precluded from
prescribing such standards; and
(iii) Any position when filled by political appointment.
(2) Senior Executive Service noncareer, limited term, and limited
emergency appointments are not subject to suitability actions under this
part.
(3) Excepted service does not mean any position excepted from the
competitive service of the executive branch that could be
noncompetitively converted to the competitive service.
Fitness is the level of character or conduct determined necessary
for an individual to perform work for a Federal agency as an employee in
the excepted service, as a contractor employee, or as a nonappropriated
fund employee.
Fitness determination means a decision by an agency that an
individual has or does not have the required level of character and
conduct necessary to perform work for a Federal agency as an excepted
service employee. These determinations are based on whether an
individual's character or conduct may have an adverse impact on the
integrity or efficiency of the service.
Material means, in reference to a statement, one that affects, or
has a natural tendency to affect, or is capable of influencing, an
official decision even if OPM or an agency does not rely upon it.
Nonappropriated fund employee means an employee paid from
nonappropriated funds of an instrumentality of the United States under
the jurisdiction of the Armed Forces conducted for the comfort,
pleasure, contentment, and mental and physical improvement of personnel
of the Armed Forces as described in 5 U.S.C. 2105.
Political appointment means an appointment by Presidential
nomination for confirmation by the Senate, an appointment by the
President without Senate confirmation (except those appointed under 5
CFR 213.3102(c)); an appointment to a position compensated under the
Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a
White House Fellow to be assigned as an assistant to a top-level Federal
officer (5 CFR 213.3102(z)); a Schedule C appointment (5 CFR 213.3301
and 213.3302); a noncareer, limited term, or limited emergency Senior
Executive Service appointment (5 CFR part 317, subpart F); an appointee
to serve in a political capacity under agency-specific authority; and a
provisional political appointment.
Suitability action means one or more of the following outcomes:
(1) Cancellation of eligibility;
(2) Removal;
(3) Cancellation of reinstatement eligibility; and
(4) Debarment.
Suitability determination means a decision by OPM or an agency with
delegated authority that an individual is suitable or is not suitable
for employment in the competitive service or career Senior Executive
Service in the Federal Government or a specific Federal agency. A
suitability determination is based on whether an individual's character
or conduct may have an adverse impact on the integrity or efficiency of
the service.
(b) The purpose of this part is as follows:
(1) To establish investigation, continuous vetting, and reciprocity
requirements for an appointment to a position in the competitive service
and excepted service and for career appointment in the Senior Executive
Service. Contractor employee fitness and nonappropriated fund employee
fitness, as addressed in sections 3(b) and 3(c) of Executive Order
13488, are also subject to the position designation requirements,
investigative standards, and reciprocity-requirements in this part.
(2) To establish the criteria for making determinations of
suitability for the competitive service or career Senior Executive
Service and to establish a minimum standard of fitness for the excepted
service.
(3) To establish the procedures for taking suitability actions in
the case of the competitive service or career Senior Executive Service.
(c) An Agency shall exercise due regard to this part and
supplemental guidance if determining fitness for employment as a
contractor employee or as a nonappropriated fund employee.
(d) Any determination made and action taken under this part are
distinct from: an objection to an eligible or pass over of a preference
eligible; OPM's or an agency's decision on a request, made under 5
U.S.C. 3318 and 5 CFR 332.406; and any determination of eligibility for
access to classified information or for assignment to, or retention in,
sensitive national security positions made under E.O. 12968, E.O. 10865,
or E.O. 13467, as amended, or similar authorities.
[[Page 36]]
Sec. 731.102 Implementation.
(a) An investigation conducted 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 and section
1.1(e) of Executive Order 13467, as amended.
(b) OPM may set forth any policy, procedure, criteria, standard,
quality control procedure, and supplementary guidance to implement this
part in an OPM or joint Executive Agent issuance.
Sec. 731.103 Delegation to agencies for the competitive service and
career Senior Executive Service.
(a) Subject to the limitations and requirements of paragraphs (b),
(d), and (f) of this section, OPM delegates to the head of an agency
authority for making a suitability determination and taking a
suitability action (including limited, agency-specific debarments under
Sec. 731.205) in a case involving an applicant or appointee.
(b) When an agency, acting under delegated authority from OPM,
determines that a government-wide debarment by OPM under Sec.
731.204(a) may be an appropriate action, it must refer the case to OPM
for debarment consideration. An agency must make a referral prior to any
proposed suitability action, but only after sufficient resolution of the
suitability issue(s) to determine if a Government-wide debarment appears
warranted.
(c) An agency exercising authority under this part by delegation
from OPM must adhere to OPM requirements as stated in this part and
issuances described in Sec. 731.102(b). An Agency must also implement
policies and maintain records demonstrating that they employ reasonable
methods to ensure adherence to these issuances.
(d) OPM reserves the right to undertake a determination of
suitability based upon evidence of falsification or fraud relating to an
examination or appointment at any point when information giving rise to
such a charge is discovered. OPM must be informed in all cases where
there is evidence of material, intentional false statements, or
deception or fraud, in examination or appointment, and OPM will take a
suitability action where warranted.
(e) OPM may revoke an agency's delegation to make suitability
determinations and take suitability actions under this part if an agency
fails to conform to this part or OPM issuances as described in Sec.
731.102(b).
(f) OPM retains sole jurisdiction to make a final suitability
determination and take an action under this part in any case where there
is evidence that there has been a material, intentional false statement,
or deception or fraud, in examination or appointment. OPM also retains
sole jurisdiction to make a final suitability determination and take an
action under this part in any case when there is evidence that there has
been knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by force. An Agency must refer these cases
to OPM for suitability determinations and suitability actions under this
authority. Although no prior approval is needed, notification to OPM is
required if the agency wants to take, or has taken, action under its own
authority (such as 5 CFR part 315, 359, or 752) in cases involving
conduct fitting within any of these factors. In addition, paragraph (a)
of this section notwithstanding, OPM may, in its discretion, exercise
its jurisdiction under this part in any case it deems necessary
regardless of whether the agency may adjudicate under another authority.
Sec. 731.104 Investigation and reciprocity requirements.
(a) To establish an individual's suitability or fitness, employment
subject to investigation (see definitions Sec. 731.101(a)) requires the
individual to undergo investigation by an agency with authority to
conduct investigations except as described in paragraphs (a)(1) through
(3) of this section.
(1) An agency must reciprocally accept a prior background
investigation in the event of promotion, demotion, reassignment, or
transfer from employment subject to investigation to other employment
subject to investigation without a break in service, unless the new
employment is at a higher risk level.
(2) An agency must reciprocally accept a prior background
investigation when the person entering employment subject to
investigation has undergone a background investigation that is at or
above the level required for the position as determined by position
designation and has a qualifying break in service specified in
supplemental guidance, unless the agency obtains new information in
connection with the person's employment that calls into question the
person's suitability or fitness under Sec. 731.202. Agencies must
request such checks as may be specified in implementing guidance and
must enroll individuals re-entering service after a break in service
into continuous vetting, consistent with the requirements in Sec.
731.106(d).
(3) Positions that are intermittent, per diem, or temporary in
nature, not to exceed an aggregate of 180 days per year in either a
single continuous appointment or series of appointments, do not require
a background investigation for suitability or fitness. The employing
agency, however, must conduct such checks as it deems appropriate to
ensure the suitability or fitness of the person. The employing agency
must conduct such vetting as required under OPM issuances.
(b) An individual does not have to serve a new probationary or trial
period in the Civil
[[Page 37]]
Service merely because the individual's employment is subject to
investigation under this section. An individual's probationary or trial
period in the Civil Service is not extended because the individual's
employment is subject to investigation under this section.
(c) A suitability determination must be made for each appointment in
the competitive service or career Senior Executive Service and a fitness
determination must be made for each appointment in the excepted service,
except as described in paragraph (c)(2) of this section.
(1) In the case of a prior investigation that is reciprocally
accepted, if the record in the Central Verification System or its
successor system does not reflect a prior favorable suitability or
fitness determination, the agency must review the prior investigation
for the purpose of making a suitability or fitness determination.
(2) In the case of a prior investigation that is reciprocally
accepted, if the prior investigation was favorably adjudicated for
suitability or fitness, the agency must accept the prior determination
except that the agency must make a new determination where:
(i) The investigative record on file for the individual shows
conduct that is incompatible with the core duties of the relevant
covered position; or
(ii) The agency has prescribed additional factors as permitted under
Sec. 731.202(b) that were not addressed in the prior favorable
adjudication, in which case the agency must conduct an adjudication
using only those additional factors.
(d) Continuous vetting requirements under Sec. 731.106 are not
affected by this section.
Sec. 731.105 Authority to take suitability actions in cases involving
the competitive service or career Senior Executive Service.
(a) OPM or an agency acting under delegated authority may take a
suitability action in connection with any application for, or
appointment to, the competitive service or career Senior Executive
Service.
(1) OPM's or an agency's authority to complete a suitability action
continues when an application is withdrawn, when an offer of employment
is withdrawn, or when an individual appointed separates from employment.
(2) OPM's or an agency's authority to take a suitability action
includes the case of an application for or appointment to the
competitive service or career Senior Executive Service from another type
of position when a prior investigation is being reciprocally accepted as
described in Sec. 731.104(a).
(b) OPM may take a suitability action under this part against an
applicant or appointee based on the criteria in Sec. 731.202.
(c) Except as limited by Sec. 731.103(b), (d), and (f), an agency,
exercising delegated authority, may take a suitability action under this
part against an applicant or appointee based on the criteria of Sec.
731.202.
(d) Only OPM may take a suitability action under this part against
an employee in the competitive service or career Senior Executive
Service based on the criteria of Sec. 731.202(b)(3), (7), or (8).
(e) An agency may not take a suitability action against an employee
in the competitive service or career Senior Executive Service. Nothing
in this part precludes an agency from taking an adverse action against
an employee under the procedures and standards of 5 CFR part 752 or
terminating a probationary employee under the procedures of 5 CFR part
315 or 359 or under agency specific authorities. An agency must notify
OPM to the extent required in Sec. 731.103(d) and (f) if it wants to
take, or has taken, action under these authorities. OPM retains the
right to take a suitability action even in those cases where the agency
makes an adjudicative determination under another authority.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. For every position in the competitive service;
in the excepted service; to be filled with a career appointment in the
Senior Executive Service; or in which the occupant performs a service as
a contractor employee or as a nonappropriated fund employee, an agency
head must designate the position at high, moderate, or low risk level
(in accordance with the risk designation system issued jointly by the
Executive Agents; see Sec. 731.102(b)), as determined by the position's
potential for adverse impact to the efficiency or integrity of the
service.
(b) Public trust position. A position at the high or moderate risk
level is designated as a ``public trust'' position. Such positions may
involve policy making, major program responsibility, public safety and
health, law enforcement duties, fiduciary responsibilities, or other
duties demanding a significant degree of public trust such as positions
involving access to or control of financial records or with significant
risk for causing damage or realizing personal gain.
(c) Investigative requirements. (1) An individual entering
employment subject to investigation under this part must undergo a
background investigation as described in Sec. 731.104. OPM establishes
minimum investigative requirements correlating to the risk level. An
investigation should be initiated before the individual is appointed or
otherwise becomes employed by or on behalf of the agency; however, where
an agency does not timely initiate the investigation, it must do so as
soon as possible, even if the appointment has already occurred.
[[Page 38]]
(2) Any position subject to risk designation under this section must
also receive a sensitivity designation of Special-Sensitive, Critical-
Sensitive, Noncritical-Sensitive, or Non-sensitive, as appropriate. This
designation is complementary to the risk designation and may have an
effect on the position's investigative requirement. Part 1400 of this
title details the various sensitivity levels and investigative
requirements for positions designated as sensitive. Procedures for
determining investigative requirements for a position based upon risk
and sensitivity will be published in issuances, as described in Sec.
731.102(b) and 5 CFR part 1400.
(3) If a suitability or fitness issue develops prior to the required
investigation, OPM or the agency may request investigation from an
authorized investigative service provider sufficient to resolve the
issue and support an unfavorable suitability or fitness determination.
However, inquiries into criminal or credit history cannot occur until a
conditional offer has been made, as specified in Sec. 731.106(g). If
warranted for positions in the competitive service or career Senior
Executive Service, an agency may also take suitability action, in
accordance with the authorities described in this part. If the
individual is then appointed or otherwise becomes employed by or on
behalf of the agency, the minimum level of investigation must be
conducted as required by paragraph (c)(1) of this section.
(d) Continuous vetting requirements. (1) Individuals occupying
positions of employment subject to investigation are also subject to
continuous vetting through periodic checks of their background at any
time in accordance with standards issued by OPM. Checks must be
conducted at regular intervals, based on the type of check and with
consideration of position risk and sensitivity. The nature of a
continuous vetting check, and any additional requirements and
parameters, are specified in supplemental issuances as described in
Sec. 731.102(b). An individual may be subjected to continuous vetting
only if they have signed an authorization for release of information
permitting a disclosure for continuous vetting purposes. Continuous
vetting for an individual in a public trust position satisfies the
requirement for a periodic reinvestigation of an individual in a public
trust position as directed in E.O. 13488, as amended. An agency must
ensure that each continuous vetting check is conducted and a
determination made regarding continued employment.
(2) An individual in a sensitive position who is continually vetted
to standards established by the Security Executive Agent for satisfying
periodic reinvestigation and/or continuous vetting requirements meets
the continuous vetting requirements for a public trust position.
(3) An agency must notify each employee covered by this section of
the continuous vetting requirements under this paragraph (d).
(e) Risk level changes. If an individual in employment subject to
investigation experiences a change to a higher position risk level due
to promotion, demotion, reassignment, or transfer, or the risk level of
the individual's position is changed to a higher level, the individual
may remain in or encumber the position. Any upgrade in the investigation
required for the new risk level should be initiated within 14 days after
the promotion, demotion, reassignment, transfer or new designation of
risk level is final or as otherwise required by 5 CFR part 1400.
(f) Completed investigations. An investigation or continuous vetting
check under paragraphs (c) through (e) of this section supports a
determination by the employing agency of whether the findings of the
investigation would justify an action under this part or under another
applicable authority, such as 5 CFR part 315, 359, or 752. Section
731.103 addresses whether an agency may take an action under this part,
and whether the matter must be referred to OPM for debarment
consideration.
(g) Criminal or credit history inquiries. A hiring agency may not
make specific inquiries concerning an applicant's criminal background in
oral or written form (including through the OF-306 or other forms used
to conduct vetting for Federal employment, USAJOBS, or any other
electronic means) unless the hiring agency has made a conditional offer
of employment to the applicant. For criminal inquiries prior to a
conditional offer, this prohibition does not apply to applicants for
positions excepted under 5 CFR 920.201(b). For competitive service or
career Senior Executive Service, a hiring agency may not make specific
inquiries concerning an applicant's credit background in oral or written
form (including through the OF-306 or other forms used to conduct
vetting for Federal employment, USAJOBS, or any other electronic means)
unless the hiring agency has made a conditional offer of employment to
the applicant. Agencies may request an exception to the provision for
making credit inquiries in advance of a conditional offer in accordance
with the provisions in 5 CFR part 330, subpart M. Agencies may make an
inquiry into an applicant's Selective Service registration, military
service, citizenship status, where applicable, or previous work history,
prior to making a conditional offer of employment to an applicant.
(h) Recordkeeping and use of information. When an agency makes a
suitability or fitness determination based on an investigation, the
agency must:
(1) Ensure that any record used in making the determination is
accurate, relevant,
[[Page 39]]
timely, and complete to the extent reasonably necessary to ensure
fairness to the individual in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, including the regulations in this part and
issuances as described in Sec. 731.102(b) have been observed;
(3) Consider all available information in reaching its final
decision on a suitability or fitness determination or suitability
action, except information furnished by a non-corroborated confidential
source, which may be used only for limited purposes, such as information
used to develop a lead or in interrogatories to a subject, if the
identity of the source is not compromised in any way; and
(4) Keep any record of the agency determination or action as
required by issuances as described in Sec. 731.102(b).
Subpart B_Suitability Determinations and Actions
Effective Date Note: At 89 FR 102695, Dec. 18, 2024, subpart B of
part 731 was revised, effective Jan. 17, 2025. For the convenience of
the user, the new subpart B of part 731 follows the text of this
subpart.
Sec. 731.201 Standard.
The standard for a suitability action defined in Sec. 731.203 and
taken against an applicant, appointee, or employee is that the action
will protect the integrity or promote the efficiency of the service.
Sec. 731.202 Criteria for making suitability determinations.
(a) General. OPM, or an agency to which OPM has delegated authority,
must base its suitability determination on the presence or absence of
one or more of the specific factors (charges) in paragraph (b) of this
section.
(b) Specific factors. In determining whether a person is suitable
for Federal employment, only the following factors will be considered a
basis for finding a person unsuitable and taking a suitability action:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, 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, without evidence of substantial rehabilitation,
of a nature and duration that 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 the applicant or appointee or 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; and
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. OPM and agencies must consider any of
the following additional considerations to the extent OPM or the
relevant agency, in its sole discretion, deems any of them pertinent to
the individual case:
(1) The nature of the position for which the person is applying or
in which the person is employed;
(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; and
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
(d) Reciprocity. An agency cannot make a new determination under
this section for a person who has already been determined suitable or
fit based on character or conduct unless a new investigation is required
under Sec. 731.104 or Sec. 731.106, or no new investigation is
required but the investigative record on file for the person shows
conduct that is incompatible with the core duties of the relevant
covered position.
[73 FR 20154, Apr. 15, 2008, as amended at 73 FR 66493, Nov. 11, 2008]
[[Page 40]]
Sec. 731.203 Suitability actions by OPM and other agencies.
(a) For purposes of this part, a suitability action is one or more
of the following:
(1) Cancellation of eligibility;
(2) Removal;
(3) Cancellation of reinstatement eligibility; and
(4) Debarment.
(b) A non-selection, or cancellation of eligibility for a specific
position based on an objection to an eligible or pass over of a
preference eligible under 5 CFR 332.406, is not a suitability action
even if it is based on reasons set forth in Sec. 731.202.
(c) A suitability action may be taken against an applicant or an
appointee when OPM or an agency exercising delegated authority under
this part finds that the applicant or appointee is unsuitable for the
reasons cited in Sec. 731.202, subject to the agency limitations of
Sec. 731.103(g).
(d) OPM may require that an appointee or an employee be removed on
the basis of a material, intentional false statement, deception or fraud
in examination or appointment; refusal to furnish testimony as required
by Sec. 5.4 of this chapter; or a statutory or regulatory bar which
prevents the person's lawful employment.
(e) OPM may cancel any reinstatement eligibility obtained as a
result of a material, intentional false statement, deception or fraud in
examination or appointment.
(f) An action to remove an appointee or employee for suitability
reasons under this part is not an action under part 315, 359, or 752 of
this chapter. Where behavior covered by this part may also form the
basis for an action under parts 315, 359, or 752 of this chapter, an
agency may take the action under part 315, 359, or 752 of this chapter,
as appropriate, instead of under this part. An agency must notify OPM to
the extent required in Sec. 731.103(g) if it wants to take, or has
taken, action under these authorities.
(g) Agencies do not need approval from OPM before taking unfavorable
suitability actions. However, they are required to report to OPM all
unfavorable suitability actions taken under this part within 30 days
after they take the action. Also, all actions based on an OPM
investigation must be reported to OPM as soon as possible and in no
event later than 90 days after receipt of the final report of
investigation.
Sec. 731.204 Debarment by OPM.
(a) When OPM finds a person unsuitable for any reason listed in
Sec. 731.202, OPM, in its discretion, may, for a period of not more
than 3 years from the date of the unfavorable suitability determination,
deny that person examination for, and appointment to, covered positions.
(b) OPM may impose an additional period of debarment following the
expiration of a period of OPM or agency debarment, but only after the
person again becomes an applicant, appointee, or employee subject to
OPM's suitability jurisdiction, and his or her suitability is determined
in accordance with the procedures of this part. An additional debarment
period may be based in whole or in part on the same conduct on which the
previous suitability action was based, when warranted, or new conduct.
(c) OPM, in its sole discretion, determines the duration of any
period of debarment imposed under this section.
Sec. 731.205 Debarment by agencies.
(a) Subject to the provisions of Sec. 731.103, when an agency finds
an applicant or appointee unsuitable based upon reasons listed in Sec.
731.202, the agency may, for a period of not more than 3 years from the
date of the unfavorable suitability determination, deny that person
examination for, and appointment to, either all, or specific covered,
positions within that agency.
(b) The agency may impose an additional period of debarment
following the expiration of a period of OPM or agency debarment, but
only after the person again becomes an applicant or appointee subject to
the agency's suitability jurisdiction, and his or her suitability is
determined in accordance with the procedures of this part. An additional
debarment period may be based in whole or in part on the same conduct on
which the previous suitability action was based, when warranted, or new
conduct.
[[Page 41]]
(c) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
(d) The agency is responsible for enforcing the period of debarment
and taking appropriate action if a person applies for, or is
inappropriately appointed to, a position at that agency during the
debarment period. This responsibility does not limit OPM's authority to
exercise jurisdiction itself and take any action OPM deems appropriate.
Sec. 731.206 Reporting requirements.
Agencies must report to OPM the level or nature, result, and
completion date of each background investigation or reinvestigation,
each agency decision based on such investigation or reinvestigation, and
any personnel action taken based on such investigation or
reinvestigation, as required in OPM issuances.
[76 FR 69608, Nov. 9, 2011]
Effective Date Note: At 89 FR 102695, Dec. 18, 2024, subpart B of
part 731 was revised, effective Jan. 17, 2025. For the convenience of
the user, the revised text is set forth as follows:
Subpart B_Determinations of Suitability or Fitness; Suitability Actions
in Cases Involving the Competitive Service or Career Senior Executive
Service
Sec. 731.201 Standard.
The standard for a suitability and fitness determination and for a
suitability action defined in Sec. 731.203 is that the action will
protect the integrity or promote the efficiency of the service.
Sec. 731.202 Criteria for making suitability and fitness
determinations.
(a) General. OPM, or an agency to which OPM has delegated
suitability authority, must base its suitability determination on the
presence or absence of one or more of the specific factors in paragraph
(b) of this section. An agency is responsible for making a fitness
determination for an excepted service position covered by this part but
must apply the specific factors in paragraph (b) as the minimum
standards for making the determination. When applying these criteria, an
agency must also apply guidance in supplemental issuances, as described
in Sec. 731.102(b). If using these factors to also make a Personal
Identity Verification (PIV) Credential determination as outlined in OPM
issuances regarding PIV credentialing eligibility, an agency must also
ensure they have verified the individual's identity.
(b) Specific factors. Only OPM may take a suitability action
considering the factors in paragraph (b)(3) or (7) of this section.
Agencies may use the factor in paragraph (b)(8) of this section in
applicant and appointee suitability cases but not employee cases;
however, OPM may use this factor in employee cases. When making a
suitability determination, OPM or an agency will consider only the
following factors to determine if one is suitable. When making fitness
determinations, an agency must consider these factors as a minimum
standard, but it may prescribe additional factors to protect the
integrity and promote the efficiency of the service, when job-related
and consistent with business necessity.
(1) Misconduct or negligence in employment;
(2) Criminal conduct;
(3) Material, intentional false statement, or deception or fraud, in
examination or appointment;
(4) Dishonest conduct;
(5) Excessive alcohol use, without evidence of rehabilitation, of a
nature and duration that suggests 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 the
applicant, appointee, or others;
(6) Illegal use of narcotics, drugs, or other controlled substances,
without evidence of 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 that prevents the lawful
employment of the individual in the position in question; and
(9) Violent conduct.
(c) Additional considerations. OPM and an agency must consider any
of the following additional considerations to the extent OPM or the
relevant agency, in its sole discretion, deems any of them pertinent to
the individual case:
(1) The nature of the position for which the individual is applying
or in which the individual is employed;
(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 individual involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
[[Page 42]]
Sec. 731.203 Suitability actions by OPM and other agencies for the
competitive service or career Senior Executive Service.
(a) This section pertains only to the competitive service or career
Senior Executive Service as defined in Sec. 731.101.
(b) A suitability action may be taken only by OPM or an agency with
delegated authority under the procedures in subparts C and D of this
part.
(c) A non-selection, or cancellation of eligibility for the
competitive service based on an objection to an eligible or pass over of
a preference eligible under 5 CFR 332.406, is not a suitability action
even if it is based on reasons set forth in Sec. 731.202.
(d) A suitability action may be taken against an applicant or an
appointee to the competitive service or career Senior Executive Service
when OPM or an agency exercising delegated authority under this part
finds that the applicant or appointee is unsuitable for the reasons
cited in Sec. 731.202, subject to the agency limitations of Sec.
731.103(b), (d), and (f).
(e) OPM may require that an employee in the competitive service or
career Senior Executive Service be removed on the basis of one or more
of the following:
(1) A material, intentional false statement, deception, or fraud in
examination or appointment;
(2) Knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by illegal or unconstitutional means; and/
or
(3) Statutory or regulatory bar that prevents the individual's
lawful employment.
(f) OPM may cancel any reinstatement eligibility obtained as a
result of a material, intentional false statement, deception, or fraud
in examination or appointment.
(g) An action to remove an appointee or employee for suitability
reasons under this part is not an action under 5 CFR part 315, 359, or
752. Where conduct covered by this part may also form the basis for an
action under 5 CFR part 315, 359, or 752, an agency may take the action
under 5 CFR part 315, 359, or 752, as appropriate, instead of under this
part. An agency must notify OPM to the extent required in Sec.
731.103(f) if it wants to take, or has taken, action under these
authorities. OPM reserves the right to also take an action under this
part.
(h) An agency does not need approval from OPM before taking an
unfavorable suitability action. However, it is required to report to the
Central Verification System or its successor, each unfavorable
suitability action taken under this part within 30 days after it takes
the action. Also, each suitability determination based on an
investigation must be reported to the Central Verification System or its
successor as soon as possible and in no event later than 90 days after
receipt of the final report of investigation.
Sec. 731.204 Debarment by OPM in cases involving the competitive
service and career Senior Executive Service.
(a) When OPM finds an individual unsuitable for any reason listed in
Sec. 731.202, OPM, in its discretion, may, for a period of not more
than 3 calendar years from the date of the unfavorable suitability
determination, deny that individual examination for, and appointment to,
the competitive service and career appointment in the Senior Executive
Service.
(b) OPM may impose an additional period of debarment following the
expiration of a period of OPM or agency debarment or when new conduct
arises while under debarment, but only after the individual again
becomes an applicant, appointee, or employee subject to OPM's
suitability jurisdiction, and the individual's suitability is determined
in accordance with the procedures of this part. An additional debarment
period may be based in whole or in part on the same conduct on which the
previous suitability action was based, when warranted, or new conduct.
(c) OPM, in its sole discretion, determines the duration of any
period of debarment imposed under this section.
Sec. 731.205 Debarment by agencies in cases involving the competitive
service and career Senior Executive Service.
(a) Subject to the provisions of Sec. 731.103, when an agency finds
an applicant or appointee unsuitable based upon reasons listed in Sec.
731.202, the agency may, for a period of not more than 3 years from the
date of the unfavorable suitability determination, deny that individual
examination for, and appointment to, either all, or specific competitive
service positions and career appointment to all, or specific Senior
Executive Service positions within that agency.
(b) The agency may impose an additional period of debarment
following the expiration of a period of OPM or agency debarment, but
only after the individual again becomes an applicant or appointee
subject to the agency's suitability jurisdiction, and his or her
suitability is determined in accordance with the procedures of this
part. An additional debarment period may be based in whole or in part on
the same conduct on which the previous suitability action was based,
when warranted, or new conduct.
(c) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
(d) The agency is responsible for enforcing the period of debarment
and taking appropriate action if an individual applies for a position at
that agency during the debarment period or is examined for or appointed
[[Page 43]]
to a position at that agency during the debarment period. This
responsibility does not limit OPM's authority to exercise jurisdiction
itself and take any action OPM deems appropriate.
Sec. 731.206 Reporting requirements for investigations and suitability
and fitness determinations.
An agency must report to the Central Verification System or its
successor the level or nature, result, and completion date of each
background investigation, reinvestigation, or enrollment in Continuous
Vetting; each agency decision based on such investigation,
reinvestigation, or Continuous Vetting; and any personnel action taken
based on such investigation or reinvestigation, as required in
supplemental guidance.
Subpart C_OPM Suitability Action Procedures for the Competitive Service
or Senior Executive Service
Sec. 731.301 Scope.
This subpart covers OPM-initiated suitability actions against an
applicant, appointee, or employee.
Sec. 731.302 Notice of proposed action.
(a) OPM will notify the applicant, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action, the
charges against the respondent, and the availability of review, upon
request, of the materials relied upon. The notice will set forth the
specific reasons for the proposed action and state that the respondent
has the right to answer the notice in writing. The notice will further
inform the respondent of the time limit for the answer as well as the
address to which an answer must be made.
(b) The notice will inform the respondent that he or she may be
represented by a representative of the respondent's choice and that if
the respondent wishes to have such a representative, the respondent must
designate the representative in writing.
(c) OPM will serve the notice of proposed action upon the respondent
by mail or hand delivery no less than 30 days prior to the effective
date of the proposed action to the respondent's last known residence or
duty station.
(d) If the respondent encumbers a position covered by this part on
the date the notice is served, the respondent is entitled to be retained
in a pay status during the notice period.
(e) OPM will send a copy of the notice to any employing agency that
is involved.
Effective Date Note: At 89 FR 102696, Dec. 18, 2024, Sec. 731.302
was amended by revising paragraph (c), effective Jan. 17, 2025. For the
convenience of the user, the revised text is set forth as follows:
Sec. 731.302 Notice of proposed action.
* * * * *
(c) OPM will serve the notice of proposed action upon the respondent
by mail, secure email, or hand delivery no less than 30 days prior to
the effective date of the proposed action to the respondent's last known
residence or duty station.
* * * * *
Sec. 731.303 Answer.
(a) Respondent's answer. A respondent may answer the charges in
writing and furnish documentation and/or affidavits in support of the
answer. To be timely, a written answer must be submitted no more than 30
days after the date of the notice of proposed action.
(b) Agency's answer. An employing agency may also answer the notice
of proposed action. The time limit for filing such an answer is 30 days
from the date of the notice. In reaching a decision, OPM will consider
any answer the agency makes.
Sec. 731.304 Decision.
The decision regarding the final suitability action will be in
writing, be dated, and inform the respondent of the reasons for the
decision and that an unfavorable decision may be appealed in accordance
with subpart E of this part. OPM will also notify the respondent's
employing agency of its decision. If the decision requires removal, the
employing agency must remove the appointee or employee from the rolls
within 5 work days of receipt of OPM's final decision.
[[Page 44]]
Subpart D_Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
Sec. 731.401 Scope.
This subpart covers agency-initiated suitability actions against an
applicant or appointee.
Sec. 731.402 Notice of proposed action.
(a) The agency must notify the applicant or appointee (hereinafter,
the ``respondent'') in writing of the proposed action, the charges
against the respondent, and the availability for review, upon request,
of the materials relied upon. The notice must set forth the specific
reasons for the proposed action and state that the respondent has the
right to answer the notice in writing. The notice must further inform
the respondent of the time limit for the answer as well as the address
to which such answer must be delivered.
(b) The notice must inform the respondent that he or she may be
represented by a representative of the respondent's choice and that if
the respondent wishes to have such a representative, the respondent must
designate the representative in writing.
(c) The agency must serve the notice of proposed action upon the
respondent by mail or hand delivery no less than 30 days prior to the
effective date of the proposed action to the respondent's last known
residence or duty station.
(d) If the respondent is employed in a position covered by this part
on the date the notice is served, the respondent is entitled to be
retained in a pay status during the notice period.
Effective Date Note: At 89 FR 102696, Dec. 18, 2024, Sec. 731.402
was amended by revising paragraph (c), effective Jan. 17, 2025. For the
convenience of the user, the revised text is set forth as follows:
Sec. 731.402 Notice of proposed action.
* * * * *
(c) The agency must serve the notice of proposed action upon the
respondent by mail, secure email, or hand delivery no less than 30 days
prior to the effective date of the proposed action to the respondent's
last known residence or duty station.
* * * * *
Sec. 731.403 Answer.
A respondent may answer the charges in writing and furnish
documentation and/or affidavits in support of the answer. To be timely,
a written answer must be submitted no more than 30 days after the date
of the notice of proposed action.
Sec. 731.404 Decision.
The decision regarding the final action must be in writing, be
dated, and inform the respondent of the reasons for the decision and
that an unfavorable decision may be appealed in accordance with subpart
E of this part. If the decision requires removal, the employing agency
must remove the appointee from the rolls within 5 work days of the
agency's decision.
Subpart E_Appeal to the Merit Systems Protection Board of Suitability
actions in cases involving the Competitive Service or Career Senior
Executive Service
Sec. 731.501 Appeal to the Merit Systems Protection Board.
(a) Appeal to the Merit Systems Protection Board. When OPM or an
agency acting under delegated authority under this part takes a
suitability action against a person, that person may appeal the action
to the Merit Systems Protection Board (hereinafter ``Board'').
(b) Decisions by the Merit Systems Protection Board. (1) If the
Board finds that one or more of the charges brought by OPM or an agency
against the person is supported by a preponderance of the evidence,
regardless of whether all specifications are sustained, it must affirm
the suitability determination. The Board must consider the record as a
whole and make a finding on each charge and specification in making its
decision.
(2) If the Board sustains fewer than all the charges, the Board must
remand
[[Page 45]]
the case to OPM or the agency to determine whether the suitability
action taken is appropriate based on the sustained charge(s). However,
the agency must hold in abeyance a decision on remand until the person
has exhausted all rights to seek review of the Board's decision,
including court review.
(3) Once review is final, OPM or an agency will determine whether
the action taken is appropriate based on the sustained charges and this
determination will be final without any further appeal to the Board.
(c) Appeal procedures. The procedures for filing an appeal with the
Board are found at part 1201 of this title.
Subpart F_Savings Provision
Effective Date Note: At 89 FR 102696, Dec. 18, 2024, subpart F of
part 731 was removed, effective Jan. 17, 2025.
Sec. 731.601 Savings provision.
No provision of the regulations in this part is to be applied in
such a way as to affect any administrative proceeding pending on June
16, 2008. An administrative proceeding is deemed to be pending from the
date of the agency or OPM ``notice of proposed action'' described in
Sec. Sec. 731.302 and 731.402.
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 OPM 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.
[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]
[[Page 46]]
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 OPM issuances.
[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]
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
[[Page 47]]
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 its issuances.
[56 FR 18654, Apr. 23, 1991, as amended at 66 FR 66711, Dec. 27, 2001]
Sec. 732.302 Reporting to OPM.
(a) In accordance with section 9(a) of E.O. 10450, each agency
conducting an 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 Exclusion of employees in the Criminal Division and National
Security Division of the United States Department of Justice.
733.103 Permitted political activities--employees who reside in
designated localities.
733.104 Prohibited political activities--employees who reside in
designated localities.
733.105 Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.106 Prohibited political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.107 Designated localities.
Authority: 5 U.S.C. 7325.d.
Source: 63 FR 4558, Jan. 30, 1998, unless otherwise noted.
Sec. 733.101 Definitions.
In 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
[[Page 48]]
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, 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; or
(3) The United States Postal Service or the Postal Rate Commission.
On Duty means the 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 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 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 the 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 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.
(1) A political contribution includes:
(i) Any contract, promise, or agreement, express or implied, whether
or not legally enforceable, to make a contribution for any political
purpose;
(ii) 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
(iii) The provision of personal services, paid or unpaid, for any
political purpose.
(2) 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.
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))
[[Page 49]]
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).
[63 FR 4558, Jan. 30, 1998, as amended at 79 FR 25485, May 5, 2014]
Sec. 733.102 Exclusion of employees in the Criminal Division and
National Security Division of the United States Department of Justice.
Employees in the Criminal Division and National Security Division in
the Department of Justice (except employees appointed by the President
by and with the advice and consent of the Senate) specifically are
excluded from coverage under the provisions of this part.
[79 FR 25485, May 5, 2014]
Sec. 733.103 Permitted political activities--employees who reside
in designated localities.
(a) This section does not apply to an individual who is employed in
an agency or position described in Sec. 733.105(a), unless that
individual has been appointed by the President, by and with the advice
and consent of the Senate.
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may:
(1) Run as independent candidates for election to partisan political
office in elections for local office in the municipality or political
subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political subdivision;
(3) Accept or receive a political contribution on behalf of an
individual who is a candidate for local partisan political office and
who represents a political party;
(4) Solicit, accept, or receive uncompensated volunteer services as
an independent candidate, or on behalf of an independent candidate, for
local partisan political office, in connection with the local elections
of the municipality or subdivision; and
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for local partisan political
office and who represents a political party.
Sec. 733.104 Prohibited political activities--employees who reside
in designated localities.
(a) This section does not apply to an individual who is employed in
an agency or position described in Sec. 733.105(a), unless that
individual has been appointed by the President, by and with the advice
and consent of the Senate.
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit a political contribution on behalf of an individual who
is a candidate for local partisan political office and who represents a
political party;
(3) Knowingly solicit a political contribution from any Federal
employee, except as permitted under 5 U.S.C. 7323(a)(2)(A)-(C).
(4) Accept or receive a political contribution from a subordinate;
or
(5) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose.
[[Page 50]]
(c) An employee covered under this section 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.
(d) An employee described in 5 U.S.C. 7324(b)(2) may participate in
political activity otherwise prohibited by Sec. 733.104(c) if the costs
associated with that political activity are not paid for by money
derived from the Treasury of the United States.
(e) 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 conflict, of
interest.
Sec. 733.105 Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and positions.
(a) This section applied to employees who reside in designated
localities and are employed in the following agencies or positions:
(1) The Federal Election Commission;
(2) The Election Assistance Commission;
(3) The Federal Bureau of Investigation;
(4) The Secret Service;
(5) The Central Intelligence Agency;
(6) The National Security Council;
(7) The National Security Agency;
(8) The Defense Intelligence Agency;
(9) The Merit Systems Protection Board;
(10) The Office of Special Counsel;
(11) The Office of Criminal Investigation of the Internal Revenue
Service.
(12) The Office of Investigative Programs of the United States
Customs Service;
(13) The Office of Law Enforcement of the Bureau of Alcohol,
Tobacco, and Firearms;
(14) The National Geospatial-Intelligence Agency;
(15) The Office of the Director of National Intelligence;
(16) Career Senior Executive Service positions described in 5 U.S.C.
3132(a)(4);
(17) Administrative Law Judge positions described in 5 U.S.C. 5372;
(18) Contract Appeals Board Member positions described in 5 U.S.C.
5372a; or
(19) Administrative Appeals Judge positions described in 5 U.S.C.
5732b.
(b) This section does not apply to individuals who have been
appointed by the President by and with the advice and consent of the
Senate, even though they are employed in the agencies and positions
described in paragraph (a) of this section.
(c) Employees who are covered under this section and who reside in a
municipality or political subdivision designated by OPM under Sec.
733.107 may:
(1) Run as independent candidates for election to partisan political
office in elections for local office in the municipality or political
subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political subdivision;
(3) Solicit, accept, or receive uncompensated volunteer services as,
or on behalf of, an independent candidate for partisan political office
in elections for office in the municipality or subdivision; and
(4) Take an active part in other political activities associated
with elections for local partisan political office and in managing the
campaigns of candidates for election to local partisan political office
in the municipality or political subdivision, but only as an independent
candidate or on behalf of, or in opposition to, an independent
candidate.
[63 FR 4558, Jan. 30, 1998, as amended at 79 FR 25485, May 5, 2014]
[[Page 51]]
Sec. 733.106 Prohibited political activities--employees who reside
designated localities and are employed in certain agencies and positions.
(a) This section does not apply to individuals who have been
appointed by the President, by and with the advice and consent of the
Senate, even though they are employed in the agencies and positions
described in Sec. 733.105(a).
(b) Employees who are employed in the agencies and positions
described in Sec. 733.105(a), and who reside in a municipality or
political subdivision designated by OPM under Sec. 733.107, may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit, accept, or receive a political contribution on behalf
of an individual who is a candidate for local partisan political office
and who represents a political party;
(3) Knowingly solicit a political contribution from any Federal
employee;
(4) Accept or receive a political contribution from a subordinate;
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for local partisan political
office and who represents a political party;
(6) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose; or
(7) Take an active part in other political activities associated
with elections for local partisan political office, when such
participation occurs on behalf of a political party, partisan political
group, or a candidate for local partisan political office who represents
a political party.
(c) An employee covered under this section 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.
(d) Candidacy for, and service in, or 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 conflict,
of interest.
Sec. 733.107 Designated localities.
(a) When OPM determines that, because of special or unusual
circumstances, it is in the domestic interest of employees to
participate in local elections, OPM may specify as a designated
locality:
(1) The District of Columbia,
(2) A municipality or political subdivision in Maryland or Virginia
and in the immediate vicinity of the District of Columbia, or
(3) A municipality in which the majority of voters are employed by
the Government of the United States.
(b) Information as to the documentation required to support a
request for designation is furnished by the General Counsel of OPM on
request.
(c) 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 (April 20, 1942).
Bowie (April 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
Chevy Chase Village, Town of (March 4, 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 (April 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 (April 25, 1974).
Hyattsville (Sept. 20, 1940).
[[Page 52]]
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Martin's Additions, Village of (Feb. 13, 1941).
Montgomery County (April 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 George's County (June 19, 1962).
Riverdale (Sept. 26, 1940).
Rockville (April 15, 1948).
St. Mary's County (March 2, 1998).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (April 5, 1941).
In Virginia
Alexandria (April 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, City of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Fauquier County
Herndon (April 7, 1945).
King George County (June 6, 2012).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (March 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Spotsylvania County (March 2, 1998).
Stafford County (Nov. 2, 1979).
Vienna (March 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
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (April 9, 1959).
New Johnsonville, Tenn. (April 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (March 19, 1948).
[63 FR 4558, Jan. 30, 1998, as amended at 73 FR 28026, May 15, 2008; 77
FR 26660, May 7, 2012; 78 FR 66826, Nov. 7, 2013; 79 FR 25485, May 5,
2014]
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.
[[Page 53]]
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.
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; or
(3) 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 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.
[[Page 54]]
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 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 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
[[Page 55]]
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;
79 FR 25485, May 5, 2014]
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. (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 218, Washington, DC 20036-4505;
(2) By telephone on (202) 254-3650, or (1-800) 854-2824;
(3) By fax on (202) 254-3700; or
(4) By email at [email protected].
(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
penalty of removal, reduction-in-grade, debarment from Federal
employment for a period not to exceed 5 years, suspension, reprimand, or
an assessment of a civil penalty not to exceed $1,000, 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;
79 FR 25485, May 5, 2014]
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:
[[Page 56]]
(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.
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 in which he or she is employed.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996;
79 FR 25485, May 5, 2014]
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
[[Page 57]]
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;
(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;
[[Page 58]]
(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:
(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.
[[Page 59]]
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 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.
[[Page 60]]
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 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 shall
determine when a matter is pending and ongoing within employing offices
of the agency or instrumentality for the purposes of this part.
[59 FR 48769, Sept. 23, 1994, as amended at 79 FR 25486, May 5, 2014]
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.
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,
[[Page 61]]
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 any 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 Election Assistance Commission;
(3) The Federal Bureau of Investigation;
(4) The Secret Service;
(5) The Central Intelligence Agency;
(6) The National Security Council;
(7) The National Security Agency;
(8) The Defense Intelligence Agency;
(9) The Merit Systems Protection Board;
(10) The Office of Special Counsel;
(11) The Office of Criminal Investigation of the Internal Revenue
Service.
(12) The Office of Investigative Programs of the United States
Customs Service;
(13) The Office of Law Enforcement of the Bureau of Alcohol,
Tobacco, and Firearms;
(14) The Criminal Division of the Department of Justice;
[[Page 62]]
(15) The National Security Division of the Department of Justice;
(16) The National Geospatial-Intelligence Agency;
(17) The Office of the Director of National Intelligence;
(18) Career Senior Executive Service positions described in 5 U.S.C.
3132(a)(4);
(19) Administrative Law Judge positions described in 5 U.S.C. 5372;
(20) Contract Appeals Board Member positions described in 5 U.S.C.
5372a; or
(21) Administrative Appeals Judge positions described in 5 U.S.C.
5732b.
(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;
79 FR 25486, May 5, 2014]
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,
[[Page 63]]
labor, or professional organization, or of a similar organization;
(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.
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 64]]
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.
(b) [Reserved]
[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;
[[Page 65]]
(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;
(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 at 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.
(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
[[Page 66]]
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.
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;
79 FR 25486, May 5, 2014]
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
[[Page 67]]
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 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,
[[Page 68]]
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.
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
Subpart A_General Provisions
Sec.
735.101 Definitions.
735.102 What are the grounds for disciplinary action?
735.103 What other regulations pertain to employee conduct?
Subpart B_Standards of Conduct
735.201 What are the restrictions on gambling?
735.202 What are the restrictions on conduct that safeguard the
examination process?
735.203 What are the restrictions on 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
[[Page 69]]
by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 71 FR 46073, Aug. 11, 2006, unless otherwise noted.
Editorial Note: Part 1001, added to this chapter at 31 FR 873, Jan.
22, 1966 and revised at 32 FR 11113, Aug. 1, 1967, 36 FR 6874, Apr. 9,
1971, 61 FR 36996, July 16, 1996, and 71 FR 43345, Aug. 1, 2006,
supplements this part 735.
Subpart A_General Provisions
Sec. 735.101 Definitions.
In this part:
Agency means an Executive agency (other than the Government
Accountability 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.
Government means the United States Government.
Special Government employee means an officer or employee specified
in 18 U.S.C. 202(a) except one who is employed in the legislative branch
or by the District of Columbia.
Uniformed services has the meaning given that term by 5 U.S.C.
2101(3).
Sec. 735.102 What are the grounds for 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 What other regulations pertain to employee 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 cause 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 What are the restrictions on gambling?
(a) While on Government-owned or leased property or on duty for the
Government, an employee shall not conduct or participate in any gambling
activity, including operating a gambling device, conducting a lottery or
pool, participating in 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) Occurring under section 7 of Executive Order 12353 and similar
agency-approved activities.
Sec. 735.202 What are the restrictions on conduct that safeguard the
examination process?
(a) An employee shall not, with or without compensation, teach,
lecture, or write for the purpose of the preparation of a person or
class of persons for an examination of the Office of Personnel
Management (OPM) or other agency to which examining authority has been
delegated, 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
OPM, or his or her designee, or by the head of an agency to which
examining authority had been delegated, or his or her designee, or by
the Director General of the Foreign Service, or his or her designee, as
applicable.
[[Page 70]]
Sec. 735.203 What are the restrictions on 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.
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
[[Page 71]]
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.
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 _Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Sec.
752.101 Coverage.
752.102 Standard for action and penalty determination.
752.103 Procedures.
Subpart B_Regulatory Requirements for Suspension for 14 Days or Less
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
[[Page 72]]
Subpart C [Reserved]
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 [Reserved]
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, Pub. L. 115-91, 131 Stat.
1283, and Pub. L. 114-328, 130 Stat. 2000.
Effective Date Note: At 89 FR 102295, Dec. 17, 2024, the authority
citation for part 752 was revised, effective Jan. 16, 2025. For the
convenience of the user, the revised text is set forth as follows:
Authority: 5 U.S.C. 6329b, 7504, 7514, and 7543; Sec. 1097, Pub. L.
115-91, 131 Stat. 1621.
Source: 74 FR 63532, Dec. 4, 2009, unless otherwise noted.
Subpart A _Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Source: 85 FR 65983, Oct. 16, 2020, unless otherwise noted.
Sec. 752.101 Coverage.
(a) Adverse actions covered. This subpart applies to actions taken
under 5 U.S.C. 7515.
(b) Definitions. In this subpart--
Agency--
(1) Has the meaning given the term in 5 U.S.C. 2302(a)(2)(C),
without regard to whether any other provision of this chapter is
applicable to the entity; and
(2) Does not include any entity that is an element of the
intelligence community, as defined in section 3 of the National Security
Act of 1947 (50 U.S.C. 3003).
Day means a calendar day.
Grade means a level of classification under a position
classification system.
Insufficient evidence means evidence that fails to meet the
substantial evidence standard described in 5 CFR 1201.4(p).
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.
Prohibited personnel action means taking or failing to take an
action in violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b)
against an employee of an agency.
Supervisor means an employee who would be a supervisor, as defined
in 5 U.S.C. 7103(a)(10), if the entity employing the employee was an
agency.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
[85 FR 65983, Oct. 16, 2020, as amended 87 FR 67782, Nov. 10, 2022]
Sec. 752.102 Standard for action and penalty determination.
(a) Except for actions taken against supervisors covered under
subchapter V of title 5, an agency may take an action under this subpart
for such cause as will promote the efficiency of the service as
described in 5 U.S.C. 7503(a) and 7513(a). For actions taken under this
subpart against supervisors covered under subchapter V of title 5, an
agency may take an action based on the standard described in 5 U.S.C.
7543(a).
(b) Subject to 5 U.S.C. 1214(f), if the head of the agency in which
a supervisor is employed, an administrative law judge, the Merit Systems
Protection Board, the Special Counsel, a judge of the United States, or
the Inspector General of the agency in which a supervisor is employed
has determined that the supervisor committed a prohibited personnel
action, the head of the agency in which the supervisor is employed,
consistent with the procedures required under this subpart--
(1) For the first prohibited personnel action committed by the
supervisor--
[[Page 73]]
(i) Shall propose suspending the supervisor for a period that is not
less than 3 days; and
(ii) May propose an additional action determined appropriate by the
head of the agency, including a reduction in grade or pay; and
(2) For the second prohibited personnel action committed by the
supervisor, shall propose removing the supervisor.
Sec. 752.103 Procedures.
(a) Non-delegation. If the head of an agency is responsible for
determining whether a supervisor has committed a prohibited personnel
action for purposes of Sec. 752.102(b), the head of the agency may not
delegate that responsibility.
(b) Scope. An action carried out under this subpart--
(1) Except as provided in paragraph (b)(2) of this section, shall be
subject to the same requirements and procedures, including those with
respect to an appeal, as an action under 5 U.S.C. 7503, 7513, or 7543;
and
(2) Shall not be subject to--
(i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b);
(ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of
5 U.S.C. 7513; and
(iii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of
5 U.S.C. 7543.
(c) Notice. A supervisor against whom an action is proposed to be
taken under this subpart is entitled to written notice that--
(1) States the specific reasons for the proposed action;
(2) Informs the supervisor about the right of the supervisor to
review the material that is relied on to support the reasons given in
the notice for the proposed action; and
(d) Answer and evidence. (1) A supervisor who receives notice under
paragraph (c) of this section may, not later than 14 days after the date
on which the supervisor receives the notice, submit an answer and
furnish evidence in support of that answer.
(2) If, after the end of the 14-day period described in paragraph
(d)(1) of this section, a supervisor does not furnish any evidence as
described in that clause, or if the head of the agency in which the
supervisor is employed determines that the evidence furnished by the
supervisor is insufficient, the head of the agency shall carry out the
action proposed under Sec. 752.102 (b), as applicable.
[85 FR 65983, Oct. 16, 2020, as amended at 87 FR 67782, Nov. 10, 2022]
Subpart B_Regulatory Requirements for Suspension for 14 Days or Less
Sec. 752.201 Coverage.
(a) Adverse 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 completed a
probationary or trial period, 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, including such an
employee who is moved involuntarily into the excepted service and still
occupies that position or occupies any other position to which the
employee is moved involuntarily;
(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,
including such an employee who is moved involuntarily into the excepted
service and still occupies that position or occupies any other position
to which the employee is moved involuntarily;
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter, including such an employee
who is moved involuntarily into a different schedule of the excepted
service and still occupies that position or occupies any other position
to which the employee is moved involuntarily;
(4) An employee who was in the competitive service and had
competitive status as defined in Sec. 212.301 of this
[[Page 74]]
chapter at the time the employee's position was first listed
involuntarily under any schedule of the excepted service and still
occupies that position or occupies any other position to which the
employee is moved involuntarily;
(5) An employee of the Department of Veterans Affairs appointed
under 38 U.S.C. 7401(3), including such an employee who is moved
involuntarily into a different schedule of the excepted service and
still occupies that position or occupies any other position to which the
employee is moved involuntarily; and
(6) An employee of the Government Publishing Office, including such
an employee who is moved involuntarily into the excepted service and
still occupies that position or occupies any other position to which the
employee is moved involuntarily.
(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. 7532;
(3) Taken under any other provision of law which excepts the action
from subchapter I, chapter 75, of title 5, U.S. Code;
(4) Of a re-employed annuitant;
(5) Of a National Guard Technician;
(6) Taken under 5 U.S.C. 7515; or
(7) Of an employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character, as defined in Sec. 210.102 of this subchapter by--
(i) The President for a position that the President has excepted
from the competitive service unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (b) of this section;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (b) of this section; or
(iii) The President or the head of an agency for a position excepted
from the competitive service by statute unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (b) of this section.
(d) Definitions. In this subpart--
Current continuous employment means a period of employment
immediately preceding a suspension action without a break in Federal
civilian employment of a workday.
Day means a calendar day.
Similar positions means 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.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65985, Oct. 16, 2020; 89
FR 25047, Apr. 9, 2024]
Sec. 752.202 Standard for action.
(a) An agency may take action under this subpart for such cause as
will promote the efficiency of the service 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.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65985, Oct. 16, 2020; 87
FR 67782, Nov. 10, 2022]
Sec. 752.203 Procedures.
(a) Statutory 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 must state the specific
reason(s) for the proposed action, and 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 notice must further include detailed
information with respect to any right to appeal the action pursuant to
section 1097(b)(2)(A) of Public Law 115-91, the forums in which the
employee may file an appeal, and any limitations on the rights of the
employee
[[Page 75]]
that would apply because of the forum in which the employee decides to
file.
(c) Employee's answer. The employee must be given a reasonable time,
but not less than 24 hours, to answer orally and in writing and to
furnish affidavits and other documentary evidence in support of the
answer.
(d) Representation. An employee covered by this subpart 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 her official position
would give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(e) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official.
(2) The agency must specify in writing the reason(s) for the
decision and advise the employee of any grievance rights under paragraph
(f) of this section. The agency must deliver the notice of decision to
the employee on or before the effective date of the action.
(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)(1)(C) of title 5, U.S. Code, 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 must maintain copies of, and will
furnish to the Merit Systems Protection Board and to the employee upon
their request, the following documents:
(1) Notice of the proposed action;
(2) Employee's written reply, if any;
(3) Summary of the employee's oral reply, if any;
(4) Notice of decision; and
(5) Any order effecting the suspension, together with any supporting
material.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65985, Oct. 16, 2020; 87
FR 67782, Nov. 10, 2022]
Subpart C [Reserved]
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. 1215;
(2) The reduction in grade of a supervisor or manager who has not
completed the probationary 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 any other provision of law 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;
[[Page 76]]
(10) Action taken or directed by the Office of Personnel Management
under part 731 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;
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary to law or regulation, including a reduction necessary to
comply with the amendments made by Public Law 108-411, regarding pay-
setting under the General Schedule and Federal Wage System and
regulations in this subchapter implementing those amendments;
(16) An action taken under 5 U.S.C. 7515.; or
(17) An action taken against a technician in the National Guard
concerning any activity under 32 U.S.C. 709(f)(4), except as provided by
32 U.S.C. 709(f)(5).
(c) Employees covered. This subpart covers:
(1) A career or career conditional employee in the competitive
service who is not serving a probationary or trial period, including
such an employee who is moved involuntarily into the excepted service;
(2) An employee in the competitive service--
(i) Who is not serving a probationary or trial period under an
initial appointment, including such an employee who is moved
involuntarily into the excepted service; or
(ii) Except as provided in the former section 1599e of title 10, for
individuals hired prior to December 31, 2022 (the date that section was
otherwise repealed by Public Law 117-81, section 1106), who has
completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less, including such an
employee who is moved involuntarily into the excepted service;
(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 Regulatory
Commission and who has completed 1 year of current continuous service in
the same or similar positions, including such an employee who is moved
involuntarily into a different schedule of the excepted service and
still occupies that position or occupies any other position to which the
employee is moved involuntarily;
(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, including such an employee who is
moved involuntarily into a different schedule of the excepted service
and still occupies that position or occupies any other position to which
the employee is moved involuntarily;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at 5 U.S.C. 105, 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, including such an employee who is moved involuntarily into a
different schedule of the excepted service and still occupies that
position or occupies any other position to which the employee is moved
involuntarily;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter, including such an employee whose
position is moved involuntarily into a different schedule of the
excepted service and still occupies that position or occupies any other
position to which the employee is moved involuntarily;
(7) An employee who was in the competitive service and had
competitive
[[Page 77]]
status as defined in Sec. 212.301 of this chapter at the time the
employee's position was first listed involuntarily under any schedule of
the excepted service and who still occupies that position or occupies
any other position to which the employee is moved involuntarily;
(8) An employee of the Department of Veterans Affairs appointed
under 38 U.S.C. 7401(3), including such an employee who is moved
involuntarily into a different schedule of the excepted service and
still occupies that position or occupies any other position to which the
employee is moved involuntarily; and
(9) An employee of the Government Publishing Office, including such
an employee who is moved involuntarily into the excepted service.
(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, as defined in Sec. 210.102 of this chapter by--
(i) The President for a position that the President has excepted
from the competitive service unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (c) of this section;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (c) of this section; or
(iii) The President or the head of an agency for a position excepted
from the competitive service by statute unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (c) of this section;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) A Foreign Service member as described in section 103 of the
Foreign Service Act of 1980;
(6) An employee of the Central Intelligence Agency or the Government
Accountability Office;
(7) 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 38, United States Code;
(8) A nonpreference eligible employee with the U.S. Postal Service,
the Postal Regulatory Commission, the Panama Canal Commission, the
Tennessee Valley Authority, the Federal Bureau of Investigation, the
National Security Agency, the Defense Intelligence Agency, or any other
intelligence component of the Department of Defense (as defined in
section 1614 of title 10, United States Code), or an intelligence
activity of a military department covered under subchapter I of chapter
83 of title 10, United States Code;
(9) 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;
(10) A nonpreference eligible employee serving a probationary or
trial period under an initial appointment in the excepted service
pending conversion to the competitive service, unless he or she meets
the requirements of paragraph (c)(5) of this section;
(11) 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 to place the
employee within the coverage of chapter 75 of title 5, United States
Code; and
(12) An employee in the competitive service serving a probationary
or trial period, unless he or she meets the requirements of paragraph
(c)(2) of this section.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65986, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022; 89 FR 25048, Apr. 9, 2024]
Sec. 752.402 Definitions.
In this subpart--
Current continuous employment means a period of employment or
service immediately preceding an adverse action without a break in
Federal civilian employment of a workday.
[[Page 78]]
Day means a calendar day.
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.
Grade means a level of classification under a position
classification system.
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.
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.
Similar positions means 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.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay for more than 14
days.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65986, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
Sec. 752.403 Standard for action.
(a) An agency may take an adverse action, including a performance-
based adverse action or an indefinite suspension, under this subpart
only for 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.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65986, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
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) An employee against whom an
action is proposed is entitled to at least 30 days' advance written
notice unless there is an exception pursuant to paragraph (d) of this
section. The notice must state the specific reason(s) for the proposed
action and 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 notice must further include detailed information with
respect to any right to appeal the action pursuant to section
1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may
file an appeal, and any limitations on the rights of the employee that
would apply because of the forum in which the employee decides to file.
(2) When some but not all employees in a given competitive level are
being furloughed, the notice of proposed action must 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 will
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;
(iii) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d)(1) of this section; or
[[Page 79]]
(iv) Placing the employee in a paid, nonduty status for such time as
is necessary to effect the action. After publication of regulations for
5 U.S.C. 6329b, and the subsequent agency implementation period in
accordance with 5 U.S.C. 6329b, an agency may place the employee in a
notice leave status when applicable.
(c) Employee's answer. (1) An employee may answer orally and in
writing except as provided in paragraph (c)(2) of this section. The
agency must give the employee 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
employee is in an active duty status. 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.
(2) The agency will 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 for such hearing in its
regulations. 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.
(3) If the employee wishes the agency to consider any medical
condition which may contribute to a conduct, performance, or leave
problem, the employee must be given a reasonable time to furnish medical
documentation (as defined in Sec. 339.104 of this chapter) of the
condition. Whenever possible, the employee will supply such
documentation within the time limits allowed for an answer.
(d) Exceptions. (1) Section 7513(b) of title 5, U.S. 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. This
notice exception is commonly referred to as the ``crime provision.''
This provision may be invoked even in the absence of judicial action.
(2) The advance written notice and opportunity to answer are not
required 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, U.S. 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 her official position
would give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the employee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301 of this chapter, or otherwise, at
its option, offer a medical examination in accordance with the criteria
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 must provide
information concerning disability retirement. The agency must be aware
of the affirmative obligations of the provisions of 29 CFR 1614.203,
which require reasonable accommodation of a qualified individual with a
disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official and any medical documentation
reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the employee of any appeal or grievance rights under Sec.
752.405 of this part.
[[Page 80]]
The agency must deliver the notice of decision to the employee on or
before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an employee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis
under which an agency must file an application for disability retirement
on behalf of an employee.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65986, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
Effective Date Note: At 89 FR 102295, Dec. 17, 2024, Sec. 752.404
was amended by revising (b)(3)(iv), effective Jan. 16, 2025. For the
convenience of the user, the revised text is set forth as follows:
Sec. 752.404 Procedures
* * * * *
(b) * * *
(3) * * *
(iv) Placing the employee in a notice leave status for a period not
to exceed the duration of the notice period, provided that the criteria
set forth in Sec. 630.1503(b) of this title are met.
* * * * *
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, an 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. Sections 7114(a)(5)
and 7121(b)(1)(C) of title 5, U.S. Code, 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.
Sec. 752.406 Agency records.
The agency must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the employee upon his or her request,
the following documents:
(a) Notice of the proposed action;
(b) Employee's written reply, if any;
(c) Summary of the employee's oral reply, if any;
(d) Notice of decision; and
(e) Any order effecting the action, together with any supporting
material.
Subpart E [Reserved]
Subpart F_Regulatory Requirements for Taking Adverse Action Under the
Senior Executive Service
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.
1215, 3592, 3595, 7532, or 7515.
(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
[[Page 81]]
(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.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65987, Oct. 16, 2020]
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).
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65987, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
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.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65987, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
Sec. 752.604 Procedures.
(a) Statutory entitlements. An appointee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7543(b).
(b) Notice of proposed action. (1) An appointee against whom an
action is proposed is entitled to at least 30 days' advance written
notice unless there is an exception pursuant to paragraph (d) of this
section. The notice must state the specific reason(s) for the proposed
action and 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. The notice must further include detailed information with
respect to any right to appeal the action pursuant to section
1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may
file an appeal, and any limitations on the rights of the employee that
would apply because of the forum in which the employee decides to file.
(2) Under ordinary circumstances, an appointee whose removal has
been proposed will 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 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 may
elect one or a combination of the following alternatives:
(i) Assigning the appointee to duties where he or she is no longer a
threat to safety, the agency mission, or Government property;
(ii) Allowing the appointee to take leave, or carrying him or her in
an appropriate leave status (annual, sick, leave without pay, or absence
without leave) if the appointee has absented himself or herself from the
worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d) of this section; or
(iv) Placing the appointee in a paid, no duty status for such time
as is necessary to effect the action. After publication of regulations
for 5 U.S.C. 6329b, and the subsequent agency implementation period in
accordance with 5 U.S.C. 6329b, an agency may place the employee in a
notice leave status when applicable.
(c) Appointee's answer. (1) The appointee may answer orally and in
writing except as provided in paragraph (c)(2) of this section. The
agency must 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. The agency may require the
appointee to furnish any answer to the proposed action, and affidavits
and other documentary evidence in support of the answer, within such
time as
[[Page 82]]
would be reasonable, but not less than 7 days.
(2) The agency will 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. 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 such hearing in its
regulations. 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 answer.
(3) If the appointee wishes the agency to consider any medical
condition that may have affected the basis for the adverse action, the
appointee must be given reasonable time to furnish medical documentation
(as defined in Sec. 339.104 of this chapter) of the condition. Whenever
possible, the appointee will supply such documentation within the time
limits allowed for an answer.
(d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes
an exception to the 30 days' advance written notice when the agency has
reasonable cause to believe that the appointee has committed a crime for
which a sentence of imprisonment may be imposed and is proposing a
removal or suspension. This notice exception is commonly referred to as
the ``crime provision.'' This provision may be invoked even in the
absence of judicial action.
(e) Representation. Section 7543(b)(3) of title 5, U.S. Code,
provides that an appointee covered by this part is entitled to be
represented by an attorney or other representative. An agency may
disallow as an appointee'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 her official position
would give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the appointee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301 of this chapter, or otherwise, at
its option, offer a medical examination in accordance with the criteria
of Sec. 339.302 of this chapter. If the appointee has the requisite
years of service under the Civil Service Retirement System or the
Federal Employees' Retirement System, the agency must provide
information concerning disability retirement. The agency must be aware
of the affirmative obligations of the provisions of 29 CFR 1614.203,
which require reasonable accommodation of a qualified individual with a
disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the appointee or the appointee's
representative, or both, made to a designated official and any medical
documentation reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the appointee of any appeal rights under Sec. 752.605 of
this part. The agency must deliver the notice of decision to the
appointee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an appointee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and Sec. 844.202 of this chapter set forth the basis
under which an agency must file an application for disability retirement
on behalf of an appointee.
[74 FR 63532, Dec. 4, 2009, as amended at 85 FR 65987, Oct. 16, 2020; 87
FR 67783, Nov. 10, 2022]
Effective Date Note: At 89 FR 102295, Dec. 17, 2024, Sec.
752.604(b)(2)(iv) was revised, effective Jan. 16, 2025. For the
convenience of the user, the revised text is set forth as follows:
Sec. 752.604 Procedures
* * * * *
(b) * * *
(2) * * *
(iv) Placing the employee in a notice leave status for a period not
to exceed the duration of the notice period, provided that the
[[Page 83]]
criteria set forth in Sec. 630.1503(b) of this title are met.
* * * * *
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 must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the appointee upon his or her request,
the following documents:
(a) Notice of the proposed action;
(b) Appointee's written reply, if any;
(c) Summary of the appointee's oral reply, if any;
(d) Notice of decision; and
(e) Any order effecting the action, together with any supporting
material.
PART 754_COMPLAINT PROCEDURES, ADVERSE ACTIONS, AND APPEALS FOR
CRIMINAL HISTORY INQUIRIES PRIOR TO CONDITIONAL OFFER--Table of Contents
Subpart A_Complaint Procedures
Sec.
754.101 Coverage.
754.102 Agency complaint process.
754.103 Applicant representatives.
Subpart B_Adverse Actions
754.201 Coverage.
754.202 Penalty determination.
754.203 Procedures.
754.204 Appeal rights.
754.205 Agency records.
Authority: 5 U.S.C. 554(a)(2), 1103(a)(5)(A), 1104(a)(2), 9201-9205,
and Pub. L. 116-92, sec. 1122(b)(1).
Source: 88 FR 60330, Sept. 1, 2023, unless otherwise noted.
Subpart A_Complaint Procedures
Sec. 754.101 Coverage.
(a) Actions covered. A complaint, or any other information,
submitted by an applicant for an appointment to a civil service position
relating to compliance with section 9202 of title 5, United States Code.
(b) Definitions. In this subpart, Agency, applicant, appointing
authority, conditional offer, criminal history record information, and
employee have the meanings set forth in 5 CFR 920.101.
Sec. 754.102 Agency complaint process.
(a) Complaint intake. (1) Within 90 days of the effective date of
this part, each agency must establish and publicize an accessible
program for the agency to receive a complaint, or any other information,
from an applicant, and any applicable supporting material, relating to
the agency's compliance with section 9202 of title 5, United States Code
and part 920 of this chapter, in accordance with the guidelines and
standards established in this section and the issuances described in
paragraph (d)(3) of this section.
(2) An applicant may submit a complaint, or any other information,
to an agency within 30 calendar days of the date of the alleged non-
compliance by an employee of an agency with section 9202 of title 5,
United States Code and part 920 of this chapter.
(3) The agency shall extend the 30-calendar-day time limit in
paragraph (a)(2) of this section when the applicant shows that the
applicant was not notified of the time limits and was not otherwise
aware of them, that the applicant did not know and reasonably should not
have known that the non-compliance with 5 U.S.C. 9202 and part 920 of
this chapter occurred, to consider a reasonable accommodation of a
disability, or for other proper and adequate reasons considered by the
agency.
(4) The agency must conduct outreach to inform an applicant of the
procedure for submitting a complaint when it has reasonable cause to
believe that the applicant is attempting to file a complaint.
(b) Agency investigation. (1) Acting under delegated authority from
OPM
[[Page 84]]
and subject to the limitations and requirements of paragraph (d) of this
section, the agency employing the employee against whom the complaint
has been filed shall investigate the complaint, unless the employee is
an administrative law judge appointed under 5 U.S.C. 3105. To carry out
this function in an impartial manner, the same agency official(s)
responsible for executing and advising on the recruitment action may not
also be responsible for managing, advising, or overseeing the agency
complaint process established in this section.
(2) In carrying out its delegated responsibilities under paragraph
(b)(1) of this section, the agency shall develop an impartial and
appropriate factual record adequate for OPM to make findings on the
claims raised by any written complaint. An appropriate factual record is
one that allows a reasonable fact finder to draw conclusions as to
whether non-compliance with 5 U.S.C. 9202 and part 920 of this chapter
occurred. Agencies have discretion to determine the appropriate fact-
finding methods that efficiently and thoroughly address the matters at
issue.
(3) The agency must delegate to the investigator sufficient
authority to secure the production, from agency employees and
contractors, of documentary and testimonial evidence needed to
investigate and report on the complaint.
(4) The applicant or applicant's representative must be given a
reasonable time to respond to a request for documentary and testimonial
evidence. This time period will not exceed 10 calendar days under
ordinary circumstances. However, in the agency's discretion, an agency
may grant an extension under extenuating circumstances.
(5) The agency shall complete its investigation within 60 calendar
days of the date of the filing of the complaint. An agency may extend
the investigation period when the agency has provided more than 10
calendar days for the applicant to respond to a request for documentary
and testimonial evidence pursuant to paragraph (b)(4) of this section.
Notwithstanding an extension, the agency shall complete the
investigation as expeditiously as possible.
(6) Within 30 calendar days of completing its investigation, the
agency shall provide to OPM an administrative report. This report should
include the applicant's complaint, or any other information submitted by
the applicant, the agency's factual findings, a complete copy of all
information gathered during the investigation, and any other information
that the agency believes OPM should consider. The report should be
submitted to the Manager, Employee Accountability, Accountability and
Workforce Relations, Employee Services, Office of Personnel Management,
1900 E Street NW, Room 7H28, Washington, DC 20415 or
employeeaccountability @opm.gov.
(c) OPM adjudication. (1) At OPM's discretion, OPM may request the
agency provide additional information as necessary.
(2) OPM shall notify the agency and the subject(s) of the complaint
in writing of its assessment of the complaint, including any decision to
initiate adverse action proceedings under subpart B of this part.
(d) OPM oversight. (1) OPM may revoke an agency's delegation under
this section if an agency fails to conform to this section or OPM
issuances as described in paragraph (d)(3) of this section.
(2) OPM retains jurisdiction to make final determinations and take
actions regarding the receipt and investigation of complaints, or any
other information; record-keeping; and reporting related to an
allegation of non-compliance with 5 U.S.C. 9202 and part 920 of this
chapter. Paragraphs (a) and (b) of this section notwithstanding, OPM
may, in its discretion, exercise its jurisdiction under this section in
any case it deems necessary.
(3) OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of this section in OPM
issuances.
Sec. 754.103 Applicant representatives.
An applicant may select a representative of the applicant's choice
to assist the applicant during the complaint process. An agency may
disallow as an
[[Page 85]]
applicant's representative an individual whose activities as a
representative would cause a conflict of interest or position; an agency
employee who cannot be released from official duties because of the
priority needs of the Government; or an agency employee whose release
would give rise to unreasonable costs to the Government.
Subpart B_Adverse Actions
Sec. 754.201 Coverage.
(a) Actions covered. This subpart applies to actions taken under 5
U.S.C. 9204.
(b) Employees covered. This subpart covers an employee of an agency
as defined and ``employee'' has the meaning given the term in 5 CFR
920.101.
(c) Definitions. In this subpart--
Civil penalty means a monetary penalty imposed on an employee of a
covered agency when it has been determined the employee has violated the
Fair Chance Act.
Day means a calendar day.
Director means the Director of OPM or Director's designee.
Suspension means the placing of an employee of a covered agency in a
temporary status without duties and pay when it has been determined the
employee violated the Fair Chance Act.
Sec. 754.202 Penalty determination.
(a) First violation. If the Director or Director's designee
determines, after OPM provides the procedural rights in Sec. 754.203,
that an employee of an agency has violated 5 U.S.C. 9202 and part 920 of
this chapter, the Director or Director's designee shall issue to the
employee a written warning that includes a description of the violation
and the additional penalties that may apply for subsequent violations;
and direct the agency to file such warning in the employee's official
personnel record file.
(b) Subsequent violations. If the Director or Director's designee
determines, after OPM provides the procedural rights in Sec. 754.203,
that an employee of an agency has committed a subsequent violation of 5
U.S.C. 9202 and part 920 of this chapter, the Director or Director's
designee may take the following action:
(1) For a second violation, order a suspension of the employee for a
period of not more than 7 days.
(2) For a third violation, order a suspension of the employee for a
period of more than 7 days.
(3) For a fourth violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $250, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(4) For a fifth violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $500, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(5) For any subsequent violation--
(i) Order a suspension of the employee for a period of more than 7
days; and
(ii) Order the employee's agency to collect a civil penalty against
the employee in an amount that is not more than $1,000, and remit the
penalty amount to the U.S. Department of Treasury for deposit in the
Treasury.
(c) Duration of suspension and penalty amount. The Director or
Director's Designee has discretion to determine the duration of a
suspension and the amount of a penalty under this section, subject only
to the minimum and maximum durations and amounts specified in this
section.
(d) Agency responsibilities. An agency shall carry out an order of
the Director to suspend an employee, or to collect and remit a civil
penalty, pursuant to processing and recordkeeping instructions issued by
OPM.
(1) The agency shall carry out the order of the Director to suspend
the employee as soon as practicable.
(2) The agency shall carry out the order of the Director to collect
and remit a civil penalty as soon as practicable, unless the employee
timely appeals the action under Sec. 754.204, in which case the agency
shall collect and
[[Page 86]]
remit the civil penalty as soon as practicable after the Merit Systems
Protection Board issues a final decision sustaining the action.
(e) Administrative law judges. Paragraphs (a) through (d) of this
section do not apply if the Director or Director's designee believes
that an administrative law judge has violated 5 U.S.C. 9202 and part 920
of this chapter. In any such case the Director or Director's designee
shall file a complaint with the Merit Systems Protection Board proposing
an action set forth in 5 U.S.C. 9204 and describing with particularity
the facts that support the proposed agency action, and the Board will
determine whether the action is for good cause under its regulations in
5 CFR part 1201, subpart D.
Sec. 754.203 Procedures.
(a) Notice of proposed action. An employee against whom action is
proposed under this subpart is entitled to at least 30 days' advance
written notice. The notice must state the specific reason(s) for the
proposed action and inform the employee of the right to review the
material which is relied on to support the reasons for the proposed
action given in the notice before any final decision is made by the
Director or Director's designee.
(b) Employee's answer. (1) An employee may answer orally and in
writing. The employee's agency must give the employee a reasonable
amount of official time to review the material relied on to support
OPM's proposed action, to prepare and present an answer orally and in
writing, and to secure affidavits, if the employee is in an active duty
status. OPM may require the employee to furnish any answer to the
proposed action, and affidavits and other documentary evidence in
support of the employee's answer, within such time as would be
reasonable, but not less than 7 days.
(2) The Director or Director's Designee may designate an Office of
Personnel Management official to hear the employee's oral answer, and
confer authority on that person to make or recommend a final decision on
the proposed adverse action.
(c) Representation. 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 the employee's official
position would give rise to unreasonable costs or whose priority work
assignments preclude release.
(d) OPM decision. (1) In arriving at a decision, the Director or
Director's Designee will consider only the complaint, the applicant's
supporting material, the agency's administrative file, the reasons
specified in the notice of proposed action, and any oral and written
answer by the employee or the employee's representative.
(2) The decision notice must specify in writing the reasons for the
decision and advise the employee of any appeal rights.
(e) Administrative Law Judges. This section does not apply if the
Director or Director's designee believes that an administrative law
judge has violated 5 U.S.C. 9202 and part 920 of this chapter.
Sec. 754.204 Appeal rights.
(a) An employee against whom an action is taken by OPM under Sec.
754.203 may appeal to the Merit Systems Protection Board, under the
regulations of the Board, but only to the extent the action concerns
suspensions for more than 14 days or combines a suspension and a civil
penalty. An appeal must be filed by not later than 30 days after the
effective date of the action. The procedures for filing an appeal with
the Board are found at 5 CFR part 1201.
(b) If the Board finds that one or more of the charges brought by
OPM against the employee is supported by a preponderance of the
evidence, regardless of whether all specifications are sustained, it
must affirm OPM's action. The Board may neither review whether the
adverse action is for such cause as will promote the efficiency of the
service, nor mitigate the duration of a suspension or the amount of a
civil penalty ordered under this part.
(c) An appeal against OPM is the exclusive avenue of appeal. The
employee has no right to file a separate appeal
[[Page 87]]
against the employing agency for processing a personnel action as
ordered by OPM under Sec. 754.202.
(d) OPM's action under Sec. 754.202 of this part is not subject to
an agency's administrative grievance procedure or a negotiated grievance
procedure under a collective bargaining agreement between an exclusive
bargaining representative and any agency.
Sec. 754.205 Agency records.
The complaint, the applicant's supporting material, the agency's
administrative file, the notice of the proposed action, the employee's
written reply, if any, summary or transcript of the employee's oral
reply, if any, the notice of decision, and any order to the covered
agency effecting the action together with any supporting material, must
be maintained in the applicable Privacy Act system of records.
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.