[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          5


          Parts 1 to 699

          Revised as of January 1, 2008


          Administrative Personnel
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 5:
          Chapter I--Office of Personnel Management                  3
  Finding Aids:
      Table of CFR Titles and Chapters........................     835
      Alphabetical List of Agencies Appearing in the CFR......     853
      List of CFR Sections Affected...........................     863

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 5 CFR 1.1 refers to 
                       title 5, part 1, section 
                       1.

                     ----------------------------

[[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 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2008), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
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 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
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Code a note has been inserted to reflect the future effective date. In 
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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 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
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INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
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This material, like any other properly issued regulation, has the force 
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    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 
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    (b) The matter incorporated is in fact 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.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
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CFR INDEXES AND TABULAR GUIDES

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the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2008.







[[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, 2008.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                    TITLE 5--ADMINISTRATIVE PERSONNEL




                   (This book contains parts 1 to 699)

  --------------------------------------------------------------------

  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...................           1

[[Page 3]]



                CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT




  --------------------------------------------------------------------

                    SUBCHAPTER A--CIVIL SERVICE RULES
Part                                                                Page
1               Coverage and definitions (Rule I)...........           7
2               Appointment through the competitive system 
                    (Rule II)...............................           8
3               Noncompetitive acquisition of status (Rule 
                    III)....................................           9
4               Prohibited practices (Rule IV)..............          10
5               Regulations, investigation, and enforcement 
                    (Rule V)................................          11
6               Exceptions from the competitive service 
                    (Rule VI)...............................          12
7               General provisions (Rule VII)...............          14
8               Appointments to overseas positions (Rule 
                    VIII)...................................          14
9               Workforce information (Rule IX).............          15
10              Agency accountability systems; OPM authority 
                    to review personnel management programs 
                    (Rule X)................................          15
                 SUBCHAPTER B--CIVIL SERVICE REGULATIONS
110             Posting notices of new OPM regulations......          17
151             Political activity of State or local 
                    officers or employees...................          17
175             OPM mandatory review of classified documents          19
177             Administrative claims under Federal Tort 
                    Claims Act..............................          19
178             Procedures for settling claims..............          23
179             Claims collection standards.................          27
180             Employees' personal property claims.........          40
185             Program fraud civil remedies................          47
210             Basic concepts and definitions (general)....          63
211             Veteran preference..........................          64
212             Competitive service and competitive status..          65
213             Excepted service............................          66
214             Senior Executive Service....................          80
230             Organization of the Government for personnel 
                    management..............................          81
250             Personnel management in agencies............          83

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251             Agency relationships with organizations 
                    representing Federal employees and other 
                    organizations...........................          87
293             Personnel records...........................          89
294             Availability of official information........         103
297             Privacy procedures for personnel records....         112
300             Employment (general)........................         124
301             Overseas employment.........................         136
302             Employment in the excepted service..........         138
304             Expert and consultant appointments..........         145
305

[Reserved]

307             Veterans recruitment appointments...........         149
308             Volunteer service...........................         150
310             Employment of relatives.....................         151
315             Career and career-conditional employment....         151
316             Temporary and term employment...............         174
317             Employment in the Senior Executive Service..         179
319             Employment in senior-level and scientific 
                    and professional positions..............         193
330             Recruitment, selection, and placement 
                    (general)...............................         196
332             Recruitment and selection through 
                    competitive examination.................         219
333

[Reserved]

334             Temporary assignments under the 
                    Intergovernmental Personnel Act (IPA)...         223
335             Promotion and internal placement............         226
337             Examining system............................         229
338             Qualification requirements (general)........         233
339             Medical qualification determinations........         234
340             Other than full-time career employment 
                    (Part-time, seasonal, on-call, and 
                    intermittent)...........................         238
351             Reduction in force..........................         243
352             Reemployment rights.........................         262
353             Restoration to duty from uniformed service 
                    or compensable injury...................         279
359             Removal from the Senior Executive Service; 
                    guaranteed placement in other personnel 
                    systems.................................         288
362             Presidential Management Fellows Program.....         297
370             Information Technology Exchange Program.....         303
410             Training....................................         307
412             Executive, management, and supervisory 
                    development.............................         316
430             Performance management......................         319
432             Performance based reduction in grade and 
                    removal actions.........................         335
451             Awards......................................         340
470             Personnel management research programs and 
                    demonstrations projects.................         345

[[Page 5]]

511             Classification under the General Schedule...         349
530             Pay rates and systems (general).............         355
531             Pay under the General Schedule..............         365
532             Prevailing rate systems.....................         398
534             Pay under other systems.....................         502
536             Grade and pay retention.....................         517
537             Repayment of student loans..................         532
550             Pay administration (general)................         536
551             Pay administration under the Fair Labor 
                    Standards Act...........................         610
553             Reemployment of civilian retirees to meet 
                    exceptional employment needs............         644
572             Travel and transportation expenses; new 
                    appointees and interviews...............         647
575             Recruitment, relocation,and retention 
                    incentives; supervisory differentials; 
                    and extended assignment incentives......         648
576             Voluntary separation incentive payments.....         686
581             Processing garnishment orders for child 
                    support and/or alimony..................         689
582             Commercial garnishment of Federal employees' 
                    pay.....................................         747
591             Allowances and differentials................         755
595             Physicians' comparability allowances........         775
610             Hours of duty...............................         778
630             Absence and leave...........................         783

[[Page 7]]



                    SUBCHAPTER A_CIVIL SERVICE RULES





PART 1_COVERAGE AND DEFINITIONS (RULE I)--Table of Contents




Sec.
1.1 Positions and employees affected by the rules in this subchapter.
1.2 Extent of the competitive service.
1.3 Definitions.
1.4 Extent of the excepted service.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10022, Sept. 14, 1963, unless otherwise noted.



Sec.  1.1  Positions and employees affected by the rules in this subchapter.

    The rules in this subchapter shall apply to all positions in the 
competitive service and to all incumbents of such positions. Except as 
expressly provided in the rule concerned, the rules in this subchapter 
shall not apply to positions and employees in the excepted service.



Sec.  1.2  Extent of the competitive service.

    The competitive service shall include: (a) All civilian positions in 
the executive branch of the Government unless specifically excepted 
therefrom by or pursuant to statute or by the Office of Personnel 
Management (hereafter referred to in this subchapter as OPM) under Sec.  
6.1 of this subchapter; and (b) all positions in the legislative and 
judicial branches of the Federal Government and in the Government of the 
District of Columbia which are specifically made subject to the civil 
service laws by statute. OPM is authorized and directed to determine 
finally whether a position is in the competitive service.



Sec.  1.3  Definitions.

    As used in the rules in this subchapter:
    (a) Competitive service shall have the same meaning as the words 
``classified service'', or ``classified (competitive) service'', or 
``classified civil service'' as defined in existing statutes and 
executive orders.
    (b) Competitive position shall mean a position in the competitive 
service.
    (c) Competitive status shall mean basic eligibility to be 
noncompetitively selected to fill a vacancy in a competitive position. A 
competitive status shall be acquired by career-conditional or career 
appointment through open competitive examination upon satisfactory 
completion of a probationary period, or may be granted by statute, 
executive order, or the Civil Service Rules without competitive 
examination. A person with competitive status may be promoted, 
transferred, reassigned, reinstated, or demoted without taking an open 
competitive examination, subject to the conditions prescribed by the 
Civil Service Rules and Regulations.
    (d) An employee shall be considered as being in the competitive 
service when he has a competitive status and occupies a competitive 
position unless he is serving under a temporary appointment: Provided, 
that an employee who is in the competitive service at the time his 
position is first listed under Schedule A, B, or C shall be considered 
as continuing in the competitive service as long as he continues to 
occupy such position.
    (e) Tenure shall mean the period of time an employee may reasonably 
expect to serve under his current appointment. Tenure shall be granted 
and governed by the type of appointment under which an employee is 
currently serving without regard to whether he has a competitive status 
or whether his appointment is to a competitive position or an excepted 
position.



Sec.  1.4  Extent of the excepted service.

    (a) The excepted service shall include all civilian positions in the 
executive branch of the Government which are specifically excepted from 
the requirements of the Civil Service Act or from the competitive 
service by or pursuant to statute or by OPM under Sec.  6.1 of this 
subchapter.
    (b) Excepted service shall have the same meaning as the words 
``unclassified service'', or ``unclassified civil service'', or 
``positions outside the competitive civil service'' as used in existing 
statutes and executive orders.

[[Page 8]]

    (c) Excepted position shall have the same meaning as ``unclassified 
position'', or ``position excepted by law'', or ``position excepted by 
executive order'', or ``position excepted by Civil Service Rule'', or 
``position outside the competitive service'' as used in existing 
statutes and Executive orders.



PART 2_APPOINTMENT THROUGH THE COMPETITIVE SYSTEM (RULE II)--Table of Contents




Sec.
2.1 Competitive examinations and eligible registers.
2.2 Appointments.
2.3 Apportionment.
2.4 Probationary period.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10023, Sept. 14, 1963, unless otherwise noted.



Sec.  2.1  Competitive examinations and eligible registers.

    (a) OPM shall be responsible for open competitive examinations for 
admission to the competitive service which will fairly test the relative 
capacity and fitness of the persons examined for the position to be 
filled. OPM is authorized to establish standards with respect to 
citizenship, age, education, training and experience, suitability, and 
physical and mental fitness, and for residence or other requirements 
which applicants must meet to be admitted to or rated in examinations.
    (b) In addition to the names of persons who qualify in competitive 
examinations, the names of persons who have lost eligibility on a career 
or career-conditional register because of service in the armed forces, 
and the names of persons who lost opportunity for certification or who 
have served under career or career-conditional appointment when OPM 
determines that they should be given certification, may also be entered 
at such places on appropriate registers and under such conditions as OPM 
may prescribe.
    (c) Whenever the Office of Personnel Management (1) is unable to 
certify a sufficient number of names to permit the appointing officer to 
consider three eligibles for appointment to a fourth-class postmaster 
position in accordance with the regular procedure, or (2) finds that a 
particular rate of compensation for fourth-class postmaster positions is 
too low to warrant regular competitive examinations for such positions, 
it may authorize appointment to any such position or positions in 
accordance with such procedure as may be prescribed by OPM. Persons 
appointed under this paragraph may acquire competitive status subject to 
satisfactory completion of a probationary period prescribed by OPM.



Sec.  2.2  Appointments.

    (a) OPM shall establish and administer a career-conditional 
appointment system for positions subject to competitive examinations 
which will permit adjustment of the career service to necessary 
fluctuations in Federal employment, and provide an equitable and orderly 
system for stabilizing the Federal work force. A competitive status 
shall be acquired by a career-conditional appointee upon satisfactory 
completion of a probationary period, but the appointee shall have 
career-conditional tenure for a period of service to be prescribed by 
regulation of OPM. When an employee has completed the required period of 
service his appointment shall be converted to a career appointment 
without time limitation: Provided, That his career-conditional 
appointment shall not be converted to a career appointment if the 
limitation on the number of permanent employees in the Federal civil 
service established under paragraph (b) of this section would be 
exceeded thereby. Persons selected from competitive civil service 
registers for other than temporary appointment shall be given career-
conditional appointments: Provided, That career appointments shall be 
given to the following classes of eligibles:
    (1) Persons whose appointments are required by statute to be made on 
a permanent basis;
    (2) Employees serving under career appointments at the time of 
selection from such registers;
    (3) Former employees who have eligibility for career appointments 
upon reinstatement; and
    (4) To the extent permitted by law, persons appointed to positions 
in the field service of the U.S. Postal Service for which salary rates 
are fixed by the

[[Page 9]]

act of July 6, 1945, 59 Stat. 435, as heretofore or hereafter amended 
and supplemented.
    (b) Under the career-conditional appointment system there shall be a 
limit on the number of permanent employees in the Federal civil service 
which shall be the ceiling established by section 1310 of the 
Supplemental Appropriation Act, 1952 (65 Stat. 757), as amended. In the 
event section 1310, supra, is repealed, OPM is authorized to fix such 
limitation on the number of permanent employees in the Federal civil 
service as it finds necessary to meet the needs of the service.
    (c) OPM may determine the types, duration, and conditions of 
indefinite and temporary appointments, and may prescribe the method for 
replacing persons holding such appointments.



Sec.  2.3  Apportionment.

    Subject to such modifications as OPM finds to be necessary in the 
interest of good administration, appointments to positions in agencies' 
headquarters offices which are located within the metropolitan area of 
Washington, DC, shall be made so as to maintain the apportionment of 
appointments among the several States, Territories, and the District of 
Columbia upon the basis of population.



Sec.  2.4  Probationary period.

    Persons selected from registers of eligibles for career or career-
conditional appointment and employees promoted, transferred, or 
otherwise assigned, for the first time, to supervisory or managerial 
positions shall be required to serve a probationary period under terms 
and conditions prescribed by the Office.

[45 FR 4337, Jan. 22, 1980]



PART 3_NONCOMPETITIVE ACQUISITION OF STATUS (RULE III)--Table of Contents




Sec.
3.1 Classes of persons who may noncompetitively acquire status.
3.2 Appointments without competitive examination in rare cases.
3.3 Conversion of appointments.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10023, Sept. 14, 1963, unless otherwise noted.



Sec.  3.1  Classes of persons who may noncompetitively acquire status.

    (a) Upon recommendation by the agency concerned, and subject to such 
noncompetitive examination, time limits, or other requirements as OPM 
may prescribe the following classes of persons may acquire a competitive 
status without competitive examination:
    (1) A person holding a permanent position when it is placed in the 
competitive service by statute or executive order or is otherwise made 
subject to competitive examination.
    (2) A disabled veteran who, in a manner satisfactory to OPM, has 
completed a course of training in the executive branch of the Government 
prescribed by the Administrator of Veterans' Affairs in accordance with 
the act of March 24, 1943 (57 Stat. 43).
    (3) An employee who has served at least two years in the immediate 
office of the President or on the White House Staff and who is 
transferred to a competitive position at the request of an agency.
    (4) An employee who was serving when his name was reached for 
certification on a civil service register appropriate for the position 
in which he was serving: Provided, That the recommendation for 
competitive status is made prior to expiration of the register on which 
his name appears or is made during a period of continuous service since 
his name was reached: Provided further, That the register was being used 
for appointments conferring competitive status at the time his name was 
reached.
    (b) Upon recommendation by the employing agency, and subject to such 
requirements as the Office of Personnel Management may prescribe, the 
following classes of handicapped employees may acquire competitive 
status without competitive examination:
    (1) A severely physically handicapped employee who completes at 
least two years of satisfactory service in a position excepted from the 
competitive service.
    (2) A mentally retarded employee who completes at least two years of

[[Page 10]]

satisfactory service in a position excepted from the competitive 
service.
    (3) An employee with a psychiatric disability who completes at least 
2 years of satisfactory service in a position excepted from the 
competitive service.

[28 FR 10023, Sept. 14, 1963, as amended by E.O. 12125, 3 CFR, 1979 
Comp., p. 375; 65 FR 41868, July 7, 2000]



Sec.  3.2  Appointments without competitive examination in rare cases.

    Subject to receipt of satisfactory evidence of the qualifications of 
the person to be appointed, OPM may authorize an appointment in the 
competitive service without competitive examination whenever it finds 
that the duties or compensation of the position are such, or that 
qualified persons are so rare, that, in the interest of good civil-
service administration, the position cannot be filled through open 
competitive examination. Any person heretofore or hereafter appointed 
under this section shall acquire a competitive status upon completion of 
at least one year of satisfactory service and compliance with such 
requirements as OPM may prescribe. Detailed statements of the reasons 
for the noncompetitive appointments made under this section shall be 
published in OPM's annual reports.



Sec.  3.3  Conversion of appointments.

    Any person who acquires a competitive status under this part shall 
have his appointment converted to career-conditional appointment unless 
he meets the service requirement for career appointment prescribed under 
Sec.  2.2(a) of this subchapter.



PART 4_PROHIBITED PRACTICES (RULE IV)--Table of Contents




Sec.
4.1 Prohibition against political activity.
4.2 Prohibition against racial, political or religious discrimination.
4.3 Prohibition against securing withdrawal from competition.

    Authority: 5 U.S.C. 3301, 3302.



Sec.  4.1  Prohibition against political activity.

    No person employed in the executive branch of the Federal 
Government, or any agency or department thereof, shall use his official 
authority or influence for the purpose of interfering with an election 
or affecting the result thereof. No person occupying a position in the 
competitive service shall take any active part in political management 
or in political campaigns, except as may be provided by or pursuant to 
statute. All such persons shall retain the right to vote as they may 
choose and to express their opinions on all political subjects and 
candidates.

[28 FR 10024, Sept. 14, 1963]



Sec.  4.2  Prohibition against racial, political or religious discrimination.

    No person employed in the executive branch of the Federal Government 
who has authority to take or recommend any personnel action with respect 
to any person who is an employee in the competitive service or any 
eligible or applicant for a position in the competitive service shall 
make any inquiry concerning the race, political affiliation, or 
religious beliefs of any such employee, eligible, or applicant. All 
disclosures concerning such matters shall be ignored, except as to such 
membership in political parties or organizations as constitutes by law a 
disqualification for Government employment. No discrimination shall be 
exercised, threatened, or promised by any person in the executive branch 
of the Federal Government against or in favor of any employee in the 
competitive service, or any eligible or applicant for a position in the 
competitive service because of his race, political affiliation, or 
religious beliefs, except as may be authorized or required by law.

[28 FR 10024, Sept. 14, 1963]



Sec.  4.3  Prohibition against securing withdrawal from competition.

    No person shall influence another person to withdraw from 
competition for any position in the competitive

[[Page 11]]

service for the purpose of either improving or injuring the prospects of 
any applicant for appointment.

[28 FR 10024, Sept. 14, 1963, as amended at 45 FR 4337, Jan. 22, 1980]



PART 5_REGULATIONS, INVESTIGATION, AND ENFORCEMENT (RULE V)--Table of Contents




Sec.
5.1 Civil Service regulations.
5.2 Investigation and evaluations.
5.3 Enforcement.
5.4 Information and testimony.

    Authority: 5 U.S.C. 3301, 3302; E.O. 12107.

    Source: 45 FR 4337, Jan. 22, 1980, unless otherwise noted.



Sec.  5.1  Civil Service regulations.

    The Director, Office of Personnel Management, shall promulgate and 
enforce regulations necessary to carry out the provisions of the Civil 
Service Act and the Veterans' Preference Act, as reenacted in title 5, 
United States Code, the Civil Service Rules, and all other statutes and 
Executive orders imposing responsibilities on the Office. The Director 
is authorized, whenever there are practical difficulties and unnecessary 
hardships in complying with the strict letter of the regulation, to 
grant a variation from the strict letter of the regulation if such a 
variation is within the spirit of the regulations, and the efficiency of 
the Government and the integrity of the competitive service are 
protected and promoted. Whenever a variation is granted the Director 
shall note the official record to show:
    (a) The particular practical difficulty or hardship involved, (b) 
what is permitted in place of what is required by regulations, (c) the 
circumstances which protect or promote the efficiency of the Government 
and the integrity of the competitive service, and (d) a statement 
limiting the application of the variation to the continuation of the 
conditions which gave rise to it. Like variations shall be granted 
whenever like conditions exist. All such decisions and information 
concerning variations noted in the official record shall be published 
promptly in a Federal Personnel Manual Letter or Bulletin and in the 
Director's next annual report.



Sec.  5.2  Investigation and evaluations.

    The Director may secure effective implementation of the civil 
service laws, rules, and regulations, and all Executive orders imposing 
responsibilities on the Office by:
    (a) Investigating the qualifications and suitability of applicants 
for positions in the competitive service. The Director may require 
appointments to be made subject to investigation to enable the Director 
to determine, after appointment, that the requirements of law or the 
civil service rules and regulations have been met.
    (b) Evaluating the effectiveness of: (1) Personnel policies, 
programs, and operations of Executive and other Federal agencies subject 
to the jurisdiction of the Office, including their effectiveness with 
regard to merit selection and employee development; (2) agency 
compliance with and enforcement of applicable laws, rules, regulations 
and office directives; and (3) agency personnel management evaluation 
systems.
    (c) Investigating, or directing an agency to investigate and report 
on, apparent violations of applicable laws, rules, regulations, or 
directives requiring corrective action, found in the course of an 
evaluation.

[45 FR 4337, Jan. 22, 1980, as amended by E.O. 13197, 66 FR 7853, Jan. 
25, 2001]



Sec.  5.3  Enforcement.

    (a) The Director is authorized to ensure enforcement of the civil 
service laws, rules, and regulations, and all applicable Executive 
orders, by:
    (1) Instructing an agency to separate or take other action against 
an employee serving an appointment subject to investigation when the 
Director finds that the employee is disqualified for Federal employment. 
Where the employee or the agency appeals the Director's finding that a 
separation or other action is necessary, the Director may instruct the 
agency as to whether or not the employee should remain on duty and 
continue to receive pay pending adjudication of the appeal: Provided, 
That when an agency separates

[[Page 12]]

or takes other action against an employee pursuant to the Director's 
instructions, and the Director, on the basis of new evidence, 
subsequently reverses the initial decision as to the employee's 
qualifications and suitability, the agency shall, upon request of the 
Director, restore the employee to duty or otherwise reverse any action 
taken.
    (2) Reporting the results of evaluation or investigations to the 
head of the agency concerned with instructions for any corrective action 
necessary, including cancellation of personnel actions where 
appropriate. The Director's findings resulting from evaluations or 
investigations are binding unless changed as a result of agency evidence 
and arguments against them. If, during the course of any evaluation or 
investigation under this section, the Director finds evidence of matters 
which come within the investigative and prosecutorial jurisdiction of 
the Special Counsel of the Merit Systems Protection Board, the Director 
shall refer this evidence to the Special Counsel for appropriate 
disposition.
    (b) Whenever the Director issues specific instructions as to 
separation or other corrective action with regard to an employee, 
including cancellation of a personnel action, the head of the agency 
concerned shall comply with the Director's instructions.
    (c) If the agency head fails to comply with the specific 
instructions of the Director as to separation or other corrective action 
with regard to an employee, including cancellation of a personnel 
action, the Director may certify to the Comptroller General of the 
United States the agency's failure to act together with such additional 
information as the Comptroller General may require, and shall furnish a 
copy of such certification to the head of the agency concerned. The 
individual with respect to whom such separation or other corrective 
action was instructed shall be entitled thereafter to no pay or only to 
such pay as appropriate to effectuate the Director's instructions.



Sec.  5.4  Information and testimony.

    When required by the Office, the Merit Systems Protection Board, or 
the Special Counsel of the Merit Systems Protection Board, or by 
authorized representatives of these bodies, agencies shall make 
available to them, or to their authorized representatives, employees to 
testify in regard to matters inquired of under the civil service laws, 
rules, and regulations, and records pertinent to these matters. All such 
employees, and all applicants or eligibles for positions covered by 
these rules, shall give to the Office, the Merit Systems Protection 
Board, the Special Counsel, or to their authorized representatives, all 
information, testimony, documents, and material in regard to the above 
matters, the disclosure of which is not otherwise prohibited by law or 
regulation. These employees, applicants, and eligibles shall sign 
testimony given under oath or affirmation before an officer authorized 
by law to administer oaths. Employees are performing official duty when 
testifying or providing evidence pursuant to this section.



PART 6_EXCEPTIONS FROM THE COMPETITIVE SERVICE (RULE VI)--Table of Contents




Sec.
6.1 Authority to except positions from the competitive service.
6.2 Schedules of excepted positions.
6.3 Method of filling excepted positions and status of incumbents.
6.4 Removal of incumbents of excepted positions.
6.5 Assignment of excepted employees.
6.6 Revocation of exceptions.
6.7 Movement of persons between the civil service system and other merit 
          systems.
6.8 Specified exceptions.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.



Sec.  6.1  Authority to except positions from the competitive service.

    (a) OPM may except positions from the competitive service when it 
determines that appointments thereto through competitive examination are 
not practicable. These positions shall be listed in OPM's annual report 
for the fiscal year in which the exceptions are made.
    (b) OPM shall decide whether the duties of any particular position 
are such that it may be filled as an excepted position under the 
appropriate schedule.

[[Page 13]]

    (c) Notice of OPM's decision granting authority to make appointments 
to an excepted position under the appropriate schedule shall be 
published in the Federal Register.

[28 FR 10025, Sept. 14, 1963, as amended by E.O. 11315, 3 CFR, 1966-1970 
Comp., p. 597; E.O. 12043, 43 FR 9773, Mar. 10, 1978]



Sec.  6.2  Schedules of excepted positions.

    OPM shall list positions that it excepts from the competitive 
service in Schedules A, B, and C, which schedules shall constitute parts 
of this rule, as follows:

    Schedule A. Positions other than those of a confidential or policy-
determining character for which it is not practicable to examine shall 
be listed in Schedule A.
    Schedule B. Positions other than those of a confidential or policy-
determining character for which it is not practicable to hold a 
competitive examination shall be listed in Schedule B. Appointments to 
these positions shall be subject to such noncompetitive examination as 
may be prescribed by OPM.
    Schedule C. Positions of a confidential or policy-determining 
character shall be listed in Schedule C.



Sec.  6.3  Method of filling excepted positions and status of incumbents.

    (a) The head of an agency may fill excepted positions by the 
appointment of persons without civil service eligibility or competitive 
status and such persons shall not acquire competitive status by reason 
of such appointment: Provided, That OPM, in its discretion, may by 
regulation prescribe conditions under which excepted positions may be 
filled in the same manner as competitive positions are filled and 
conditions under which persons so appointed may acquire a competitive 
status in accordance with the Civil Service Rules and Regulations.
    (b) To the extent permitted by law and the provisions of this part, 
appointments and position changes in the excepted service shall be made 
in accordance with such regulations and practices as the head of the 
agency concerned finds necessary.



Sec.  6.4  Removal of incumbents of excepted positions.

    Except as may be required by statute, the Civil Service Rules and 
Regulations shall not apply to removals from positions listed in 
Schedules A and C or from positions excepted from the competitive 
service by statute. The Civil Service Rules and Regulations shall apply 
to removals from positions listed in Schedule B of persons who have 
competitive status.



Sec.  6.5  Assignment of excepted employees.

    No person who is serving under an excepted appointment shall be 
assigned to the work of a position in the competitive service without 
prior approval of OPM.



Sec.  6.6  Revocation of exceptions.

    OPM may remove any position from or may revoke in whole or in part 
any provision of Schedule A, B, or C. Notice of OPM's decision making 
these changes shall be published in the Federal Register.

[E.O. 11315, 3 CFR, 1966-1970 Comp., p. 597, as amended by E.O. 12043, 
43 FR 9773, Mar. 10, 1978]



Sec.  6.7  Movement of persons between the civil service system and other merit systems.

    Whenever OPM and any Federal agency having an established merit 
system determine it to be in the interest of good administration and 
consistent with the intent of the civil service laws and any other 
applicable laws, they may enter into an agreement prescribing conditions 
under which persons may be moved from one system to the other and 
defining the status and tenure that the persons affected shall acquire 
upon such movement.



Sec.  6.8  Specified exceptions.

    (a) Positions in the Department of the Interior and in the 
Department of Commerce whose incumbents serve as the principal 
representative of the Secretary in their respective regions shall be 
listed in Schedule C for grades not exceeding grade GS-15 of the General 
Schedule, and shall be designated Noncareer Executive Assignments for 
positions graded higher than GS-15. Incumbents of these positions who 
are, on February 15, 1975, in the competitive service shall not be 
affected by the foregoing provisions of this section.

[[Page 14]]

    (b) Positions in the Community Services Administration and ACTION 
whose incumbents serve as regional director or regional administrator 
shall be listed in Schedule C for grades not exceeding GS-15 of the 
General Schedule and shall be designated Noncareer Executive Assignments 
for positions graded higher than GS-15. Incumbents of these positions 
who are, on November 29, 1977, in the competitive service shall not be 
affected by the foregoing provisions of this subsection.
    (c) Within the Department of Agriculture, positions in the 
Agriculture Stabilization and Conservation Service the incumbents of 
which serve as State Executive Directors and positions in the Farmers 
Home Administration the incumbents of which serve as State Directors or 
State Directors-at-Large shall be listed in Schedule C for all grades of 
the General Schedule.

[E.O. 11839, 40 FR 7351, Feb. 19, 1975, as amended by E.O. 11887, 40 FR 
51411, Nov. 5, 1975; E.O. 12021, 42 FR 61237, Dec. 2, 1977; 47 FR 4227, 
Jan. 29, 1982]



PART 7_GENERAL PROVISIONS (RULE VII)--Table of Contents




Sec.
7.1 Discretion in filling vacancies.
7.2 Reemployment rights.
7.3 Citizenship.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.



Sec.  7.1  Discretion in filling vacancies.

    In his discretion, an appointing officer may fill any position in 
the competitive service either by competitive appointment from a civil 
service register or by noncompetitive selection of a present or former 
Federal employee, in accordance with the Civil Service Regulations. He 
shall exercise his discretion in all personnel actions solely on the 
basis of merit and fitness and without regard to political or religious 
affiliations, marital status, or race.



Sec.  7.2  Reemployment rights.

    OPM, whenever it determines it to be necessary, shall prescribe 
regulations governing the release of employees (both within the 
competitive service and the excepted service) by any agency in the 
executive branch of the Government for employment in any other agency, 
and governing the establishment, granting, and exercise of rights to 
reemployment in the agencies from which employees are released.

[28 FR 10025, Sept. 14, 1963. Redesignated by E.O. 13197, 66 FR 7853, 
Jan. 25, 2001]



Sec.  7.3  Citizenship.

    (a) No person shall be admitted to competitive examination unless 
such person is a citizen or national of the United States.
    (b) No person shall be given any appointment in the competitive 
service unless such person is a citizen or national of the United 
States.
    (c) OPM may, as an exception to this rule and to the extent 
permitted by law, authorize the appointment of aliens to positions in 
the competitive service when necessary to promote the efficiency of the 
service in specific cases or for temporary appointments.

[E.O. 11935, 41 FR 37301, Sept. 3, 1976. Redesignated by E.O. 13197, 66 
FR 7853, Jan. 25, 2001]



PART 8_APPOINTMENTS TO OVERSEAS POSITIONS (RULE VIII)--Table of Contents




Sec.
8.1 Additional authority of OPM.
8.2 Appointment of United States citizens.
8.3 Appointment of persons not citizens of the United States.
8.4 Positions excepted from the application of this part.

    Authority: 5 U.S.C. 3301, 3302.

    Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.



Sec.  8.1  Additional authority of OPM.

    In addition to authorizing the recruitment and appointment of 
persons to overseas positions under regulations issued under the 
preceding Rules, OPM may, by the regulations prescribed by it, authorize 
the recruitment and appointment of persons to such positions as provided 
in Sec.  8.2. As used in this part, overseas positions means positions 
in foreign countries and in other areas beyond the continental limits of 
the United States, except as provided in Sec.  8.4.

[[Page 15]]



Sec.  8.2  Appointment of United States citizens.

    United States citizens may be recruited overseas for appointment to 
overseas positions in the competitive service without regard to the 
competitive requirements of the Civil Service Act. Persons so recruited 
who meet the qualification standards and other requirements of OPM for 
overseas positions may be given appointments to be known as ``overseas 
limited appointments.'' Such appointments shall be of temporary or 
indefinite duration, and shall not confer the right to acquire a 
competitive status. OPM may authorize overseas limited appointments for 
United States citizens recruited within the continental limits of the 
United States whenever it determines that it is not feasible to appoint 
from a civil-service register. Persons serving under appointments made 
pursuant to this section are hereby excluded from the operation of the 
Civil Service Retirement Act of May 29, 1930, as amended, unless 
eligible for retirement benefits by continuity of service or otherwise.



Sec.  8.3  Appointment of persons not citizens of the United States.

    Persons who are not citizens of the United States may be recruited 
overseas and appointed to overseas positions without regard to the Civil 
Service Act.



Sec.  8.4  Positions excepted from the application of this part.

    This part shall not apply to positions in Hawaii, Puerto Rico, the 
Virgin Islands, and Alaska, and on the Isthmus of Panama.



PART 9_WORKFORCE INFORMATION (RULE IX)--Table of Contents




Sec.
9.1 Definition.
9.2 Reporting workforce information.

    Source: E.O. 13197, 66 FR 7853, Jan. 25, 2001, unless otherwise 
noted.



Sec.  9.1  Definition.

    As used in this rule, 'Executive agency' means an Executive 
department, a Government corporation, and an independent establishment, 
as those terms are defined in chapter 1 of title 5, United States Code, 
but does not include the Federal Bureau of Investigation, the Central 
Intelligence Agency, the Defense Intelligence Agency, the National 
Imagery and Mapping Agency, the National Security Agency, and, as 
determined by the President, any Executive agency or unit within an 
Executive agency which has as its principal function the conduct of 
foreign intelligence or counterintelligence activities.



Sec.  9.2  Reporting workforce information.

    The Director of the Office of Personnel Management may require all 
Executive agencies to report information relating to civilian employees, 
including positions and employees in the competitive, excepted, and 
Senior Executive services, in a manner and at times prescribed by the 
Director. The Director shall establish standards for workforce 
information submissions under this section, and agencies shall ensure 
that their submissions meet these standards consistent with the Privacy 
Act. The Director may exempt from this section a specific agency or 
group of employees when the Director determines that an exemption is 
appropriate because of special circumstances.



PART 10_AGENCY ACCOUNTABILITY SYSTEMS; OPM AUTHORITY TO REVIEW PERSONNEL MANAGEMENT PROGRAMS (RULE X)--Table of Contents




Sec.
10.1 Definitions.
10.2 Accountability systems.
10.3 OPM authority to review personnel management programs and 
          practices.

    Source: E.O. 13197, 66 FR 7853, Jan. 25, 2001, unless otherwise 
noted.



Sec.  10.1  Definitions.

    For purposes of this rule--
    (a) 'Agency' means an Executive agency as defined in Rule IX, but 
does not include a Government corporation or the General Accounting 
Office; and

(b) 'Merit system principles' means the principles for Federal personnel 
management that are set forth in section 2301(b) of title 5, United 
States Code.

[[Page 16]]



Sec.  10.2  Accountability systems.

    The Director of the Office of Personnel Management may require an 
agency to establish and maintain a system of accountability for merit 
system principles that
    (1) Sets standards for applying the merit system principles,
    (2) Measures the agency's effectiveness in meeting these standards, 
and
    (3) Corrects any deficiencies in meeting these standards.



Sec.  10.3  OPM authority to review personnel management programs and practices.

    The Office of Personnel Management may review the human resources 
management programs and practices of any agency and report to the head 
of the agency and the President on the effectiveness of these programs 
and practices, including whether they are consistent with the merit 
system principles.

[[Page 17]]



                 SUBCHAPTER B_CIVIL SERVICE REGULATIONS





PART 110_POSTING NOTICES OF NEW OPM REGULATIONS--Table of Contents




Sec.
110.101 What are OPM's Notice and Posting System responsibilities?
110.102 What are Agency responsibilities?

    Authority: 5 U.S.C. 1103.

    Source: 69 FR 33535, June 16, 2004, unless otherwise noted.



Sec.  110.101  What are OPM's Notice and Posting System responsibilities?

    OPM will issue a notice that will provide information for Federal 
agencies, employees, managers, and other stakeholders on each of its new 
proposed, interim, and final regulations. Each notice will transmit:
    (a) A posting notice that briefly explains the nature of the change, 
and provides a place for Federal agencies to indicate where the full 
text of the Federal Register notice will be available for review.
    (b) A copy of the notice of rulemaking that appears in the Federal 
Register or a link to a Web site where the notice of rulemaking appears.



Sec.  110.102  What are Agency responsibilities?

    (a) Agencies will make regulations available for review by 
employees, managers, and other interested parties. Federal agencies 
receiving the notices of rulemaking described in Sec.  110.101(b) will 
make those regulations available for review upon request. Each agency 
will complete the posting notice described in Sec.  110.101(a) 
indicating where and how requests to review these materials should be 
made.
    (b) Agencies will determine posting locations and, if desired, 
develop supplemental announcements. Agencies will display completed 
posting notices in a prominent place where the notices can be easily 
seen and read. Agencies will choose the posting location that best fits 
their physical layout. Agencies may supplement these postings with 
announcements in employee newsletters, agency Web sites, or other 
communication methods. The basic requirement to post the notice 
continues, however, even if supplemental announcement methods are used.
    (c) Agencies will post notices of the new regulations even if the 
Federal Register comment date has passed. The public comment period on 
proposed regulations begins when a notice of proposed rulemaking is 
published in the Federal Register, not with the posting of the notice 
described in Sec.  110.101(a). The purpose of posting notice is solely 
to inform agency personnel of changes. Agencies are required to post the 
posting notice even if the formal deadline for comments shown in the 
preamble of the Federal Register notice of rulemaking has passed. 
Agencies should make every reasonable effort to minimize delays in 
distributing the notice described in Sec.  110.101 to their field 
offices.
    (d) No fixed posting period. There are no minimum or maximum time 
limits on displaying the notice described in Sec.  110.101(a). Each 
office receiving a notice for posting should choose the posting period 
which provides the best opportunity to inform managers and employees of 
regulatory changes based upon office layout, geographic dispersion of 
employees, and other local factors.



PART 151_POLITICAL ACTIVITY OF STATE OR LOCAL OFFICERS OR EMPLOYEES--Table of Contents




                           General Provisions

Sec.
151.101 Definitions.

                         Permissible Activities

151.111 Permissible activities.

                          Prohibited Activities

151.121 Use of official authority; coercion; candidacy; prohibitions.
151.122 Candidacy; exceptions.

    Authority: 5 U.S.C. 1302, 1501-1508, as amended.

    Source: 35 FR 16783, Oct. 30, 1970, unless otherwise noted.

[[Page 18]]

                           General Provisions



Sec.  151.101  Definitions.

    In this part:
    (a) State means a State or territory or possession of the United 
States.
    (b) State or local agency means the executive branch of a State, 
municipality, or other political subdivision of a State, or an agency or 
department thereof.
    (c) Federal agency means an executive agency or other agency of the 
United States, but does not include a member bank of the Federal Reserve 
System;
    (d) State or local officer or employee means an individual employed 
by a State or local agency whose principal employment is in connection 
with an activity which is financed in whole or in part by loans or 
grants made by the United States or a Federal agency but does not 
include--
    (1) An individual who exercises no functions in connection with that 
activity.
    (2) An individual employed by an educational or research 
institution, establishment, agency, or system, which is supported in 
whole or in part by a State or political subdivision thereof, or by a 
recognized religious, philanthropic, or cultural organization.
    (e) Political party means a National political party, a State 
political party, and an affiliated organization.
    (f) Election includes a primary, special, and general election.
    (g) Nonpartisan election means an election at which none of the 
candidates is to be nominated or elected as representing a political 
party any of whose candidates for Presidential elector receives votes in 
the last preceding election at which Presidential electors were 
selected.
    (h) Partisan when used as an adjective refers to a political party.
    (i) Elective office means any office which is voted upon at an 
election as defined at Sec.  151.101(f), above, but does not include 
political party office.

[40 FR 42733, Sept. 16, 1975]

                         Permissible Activities



Sec.  151.111  Permissible activities.

    (a) All State or local officers or employees are free to engage in 
political activity to the widest extent consistent with the restrictions 
imposed by law and this part. A State or local officer or employee may 
participate in all political activity not specifically restricted by law 
and this part, including candidacy for office in a nonpartisan election 
and candidacy for political party office.

[40 FR 42733, Sept. 16, 1975]

                          Prohibited Activities



Sec.  151.121  Use of official authority; coercion; candidacy; prohibitions.

    A State or local officer or employee may not--
    (a) Use his official authority or influence for the purpose of 
interfering with or affecting the result of an election or a nomination 
for office; or
    (b) Directly or indirectly coerce, attempt to coerce, command, or 
advise a State or local officer or employee to pay, lend, or contribute 
anything of value to a political party, committee, organization, agency, 
or person for a political purpose.
    (c) Be a candidate for elective public office in a partisan 
election.

[40 FR 42733, Sept. 16, 1975]



Sec.  151.122  Candidacy; exceptions.

    Section 151.121(c) does not apply to--
    (a) The Governor or Lieutenant Governor of a State or an individual 
authorized by law to act as Governor;
    (b) The Mayor of a city;
    (c) A duly elected head of an executive department of a State or 
municipality who is not classified under a State or municipal merit or 
civil service system;
    (d) An individual holding elective office;
    (e) Activity in connection with a nonpartisan election; or
    (f) Candidacy for a position of officer of a political party, 
delegate to a political party convention, member of a National, State, 
or local committee of a political party, or any similar position.

[40 FR 42733, Sept. 16, 1975, as amended at 40 FR 47101, Oct. 8, 1975]

[[Page 19]]



PART 175_OPM MANDATORY REVIEW OF CLASSIFIED DOCUMENTS--Table of Contents




Sec.
175.101 Policy.
175.102 Requests for the declassification of documents.

    Authority: E.O. 12065, 43 FR 28949.



Sec.  175.101  Policy.

    The Office of Personnel Management bases its procedures for handling 
national security information on Executive Order 12065, ``National 
Security Information,'' and Information Security Oversight Office 
Directive No. 1 concerning national security information.

[45 FR 995, Jan. 4, 1980]



Sec.  175.102  Requests for the declassification of documents.

    Any Federal agency, Government employee or member of the public has 
the right to request a mandatory review of any classified document, held 
by the Office of Personnel Management, which was classified for national 
security purposes by the Civil Service Commission. The Office of 
Personnel Management does not have the authority to classify documents.
    (a) Requests for mandatory declassification review should be 
addressed to the Director, Office of Management, or the designee of the 
Director, who will act on requests within 60 days. Requests need not be 
made in any special form but shall, as specified in section 3-501 of the 
Executive order, reasonably describe the information.
    (b) Based upon the review, the document, or any reasonably 
segregable portion thereof that no longer requires protection under the 
Executive order, shall be declassified and released unless withholding 
is otherwise warranted under applicable law.
    (c) No OPM official will refuse to confirm the existence or non-
existence of any document requested under the Freedom of Information Act 
or the mandatory review provisions of the Executive order, unless the 
fact of its existence or non-existence would itself be classifiable 
under the Executive order. OPM Administrative Manual chapter 22, 
covering OPM policies and procedures relating to classified information 
or material is available for inspection by the public in the OPM 
Library, room 5H27, 1900 E. St., NW., Washington, DC, or in one of the 
10 OPM regional offices in the following cities: Atlanta, Boston, 
Chicago, Dallas, Denver, New York, Philadelphia, St. Louis, San 
Francisco and Seattle.

[45 FR 995, Jan. 4, 1980]



PART 177_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT--Table of Contents




Sec.
177.101 Scope of regulations.
177.102 Administrative claim; when presented; appropriate OPM office.
177.103 Administrative claim; who may file.
177.104 Investigations.
177.105 Administrative claim; evidence and information to be submitted.
177.106 Authority to adjust, determine, compromise, and settle.
177.107 Limitations on authority.
177.108 Referral to Department of Justice.
177.109 Final denial of claim.
177.110 Action on approved claim.

    Authority: 28 U.S.C. 2672; 28 CFR 14.11.

    Source: 65 FR 44945, July 20, 2000, unless otherwise noted.



Sec.  177.101  Scope of regulations.

    The regulations in this part apply only to claims presented or filed 
with the Office of Personnel Management (OPM) under the Federal Tort 
Claims Act, as amended, for money damages against the United States for 
injury to or loss of property or personal injury or death caused by the 
negligent or wrongful act or omission of an officer or employee of OPM 
while acting within the scope of his or her office or employment.



Sec.  177.102  Administrative claim; when presented; appropriate OPM office.

    (a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 
2675, a claim is deemed to have been presented when OPM receives from a 
claimant, his or her authorized agent or legal representative, an 
executed Standard Form 95 (Claim for Damage, Injury or Death), or other 
written notification of an incident, accompanied by a claim

[[Page 20]]

for money damages stating a sum certain (a specific dollar amount) for 
injury to or loss of property, personal injury, or death alleged to have 
occurred as a result of the incident.
    (b) All claims filed under the Federal Tort Claims Act as a result 
of the alleged negligence or wrongdoing of OPM or its employees will be 
mailed or delivered to the Office of the General Counsel, United States 
Office of Personnel Management, 1900 E Street NW, Washington, DC 20415-
1300.
    (c) A claim must be presented to the Federal agency whose activities 
gave rise to the claim. A claim that should have been presented to OPM, 
but was mistakenly addressed to or filed with another Federal agency, is 
presented to OPM, as required by 28 U.S.C. 2401(b), as of the date the 
claim is received by OPM. When a claim is mistakenly presented to OPM, 
OPM will transfer the claim to the appropriate Federal agency, if 
ascertainable, and advise the claimant of the transfer, or return the 
claim to the claimant.
    (d) A claimant whose claim arises from an incident involving OPM and 
one or more other Federal agencies, will identify each agency to which 
the claim has been submitted at the time the claim is presented to OPM. 
OPM will contact all other affected Federal agencies in order to 
designate the single agency that will investigate and decide the merits 
of the claim. In the event a designation cannot be agreed upon by the 
affected agencies, the Department of Justice will be consulted and will 
designate an agency to investigate and determine the merits of the 
claim. The designated agency will notify the claimant that all future 
correspondence concerning the claim must be directed to that Federal 
agency. All involved Federal agencies may agree to conduct their own 
administrative reviews and to coordinate the results, or to have the 
investigation conducted by the designated Federal agency. But, in either 
event, the designated agency will be responsible for the final 
determination of the claim.
    (e) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final agency 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a). Amendments must be in writing and signed by the claimant or his 
or her authorized agent or legal representative. Upon timely filing of 
an amendment to a pending claim, OPM will have 6 months in which to make 
a final disposition of the claim as amended and claimant's option under 
28 U.S.C. 2675 (a) will not accrue until 6 months after the filing of an 
amendment.



Sec.  177.103  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property, his or her authorized agent or legal 
representative.
    (b) A claim for personal injury may be presented by the injured 
person, his or her authorized agent or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate or by any other person legally 
entitled to assert a claim under the applicable State law.
    (d) A claim for loss totally compensated by an insurer with the 
rights to subrogate may be presented by the insurer. A claim for loss 
partially compensated by an insurer with the rights to subrogate may be 
presented by the insurer or the insured individually, as their 
respective interests appear, or jointly. When an insurer presents a 
claim asserting the rights to subrogate, he or she will present with the 
claim appropriate evidence that he or she has the rights to subrogate.
    (e) A claim presented by an agent or legal representative must be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title or legal capacity of the person signing, 
and be accompanied by evidence of his or her authority to present a 
claim on behalf of the claimant as agent, executor, administrator, 
parent, guardian, or other representative.



Sec.  177.104  Investigations.

    OPM may investigate, or may request any other Federal agency to 
investigate, a claim filed under this part.

[[Page 21]]



Sec.  177.105  Administrative claim; evidence and information to be submitted.

    (a) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his or her monthly or yearly salary or earnings (if any), and the 
duration of his or her last employment or occupation.
    (3) Full names, addresses, birth date, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support from the decedent at the time of death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent on him or her for support at the time of death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering before death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition in the interval between injuries and 
death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
amount of damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by the attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by OPM or another 
Federal agency. On written request, OPM will make available to the 
claimant a copy of the report of the examining physician employed by the 
United States, provided the claimant has furnished OPM with the report 
referred to in the first sentence of this subparagraph. In addition, the 
claimant must have made or agrees to make available to OPM all other 
physician's reports previously or thereafter made of the physical or 
mental condition that is the subject matter of his or her claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from his or her employer showing actual time lost from 
employment, whether he or she is a full-or part-time employee, and wages 
or salary actually lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the personal injury 
or the damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership of the property.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value, where repair is economical.
    (5) Any other evidence or information which may have a bearing on 
either the

[[Page 22]]

responsibility of the United States for the injury to or loss of 
property or the damages claimed.



Sec.  177.106  Authority to adjust, determine, compromise, and settle.

    (a) The General Counsel of OPM, or his or her designee, is delegated 
authority to consider, ascertain, adjust, determine, compromise, and 
settle claims under the provisions of 28 U.S.C. 2672, and this part. The 
General Counsel, in his or her discretion, has the authority to further 
delegate the responsibility for adjudicating, considering, adjusting, 
compromising, and settling any claim submitted under the provisions of 
28 U.S.C. 2672, and this part, that is based on the alleged negligence 
or wrongful act or omission of an OPM employee, with the exception of 
claims involving personal injury. All claims involving personal injury 
will be adjudicated, considered, adjusted, compromised and settled by 
the Office of the General Counsel.



Sec.  177.107  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under 28 U.S.C. 
2672, and this part, in excess of $25,000 can be effected only with the 
prior written approval of the Attorney General or his or her designee. 
For purposes of this paragraph, a principal claim and any derivative or 
subrogated claim will be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised, or settled under this part, only after consultation with 
the Department of Justice when, in the opinion of the General Counsel of 
OPM, or his or her designee:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party and OPM is unable to adjust the third 
party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, 
compromised, or settled under 28 U.S.C. 2672, and this part, only after 
consultation with the Department of Justice when, OPM is informed or is 
otherwise aware that the United States or an employee, agent, or cost-
type contractor of the United States is involved in litigation based on 
a claim arising out of the same incident or transaction.



Sec.  177.108  Referral to Department of Justice.

    When Department of Justice approval or consultation is required, or 
the advice of the Department of Justice is otherwise to be requested, 
under Sec.  177.107, the written referral or request will be transmitted 
to the Department of Justice by the General Counsel of OPM or his or her 
designee.



Sec.  177.109  Final denial of claim.

    Final denial of an administrative claim must be in writing and sent 
to the claimant, his or her attorney, or legal representative by 
certified or registered mail. The notification of final denial may 
include a statement of the reasons for the denial. But, it must include 
a statement that, if the claimant is dissatisfied with the OPM action, 
he or she may file suit in an appropriate United States district court 
not later than 6 months after the date of mailing of the notification.



Sec.  177.110  Action on approved claim.

    (a) Payment of a claim approved under this part is contingent on 
claimant's execution of a Standard Form 95 (Claim for Damage, Injury or 
Death); a claims settlement agreement; and a Standard Form 1145 (Voucher 
for Payment), as appropriate. When a claimant is represented by an 
attorney, the Voucher for Payment will designate both the claimant and 
his or her attorney as payees, and the check will be delivered to the 
attorney, whose address is to appear on the Voucher for Payment.
    (b) Acceptance by the claimant, his or her agent, or legal 
representative, of an award, compromise, or settlement made under 28 
U.S.C. 2672 or 28 U.S.C. 2677 is final and conclusive on the claimant, 
his or her agent or legal representative, and any other person on whose 
behalf or for whose benefit the

[[Page 23]]

claim has been presented, and constitutes a complete release of any 
claim against the United States and against any employee of the Federal 
Government whose act or omission gave rise to the claim, by reason of 
the same subject matter.



PART 178_PROCEDURES FOR SETTLING CLAIMS--Table of Contents




    Subpart A_Administrative Claims_Compensation and Leave, Deceased 
   Employees' Accounts and Proceeds of Canceled Checks for Veterans' 
               Benefits Payable to Deceased Beneficiaries

Sec.
178.101 Scope of subpart.
178.102 Procedures for submitting claims.
178.103 Claim filed by a claimant's representative.
178.104 Statutory limitations on claims.
178.105 Basis of claim settlements.
178.106 Form of claim settlements.
178.107 Finality of claim settlements.

  Subpart B_Settlement of Accounts for Deceased Civilian Officers and 
                                Employees

178.201 Scope of subpart.
178.202 Definitions.
178.203 Designation of beneficiary.
178.204 Order of payment precedence.
178.205 Procedures upon death of employee.
178.206 Return of unnegotiated Government checks.
178.207 Claims settlement jurisdiction.
178.208 Applicability of general procedures.

    Source: 62 FR 68139, Dec. 31, 1997, unless otherwise noted.



    Subpart A_Administrative Claims_Compensation and Leave, Deceased 
   Employees' Accounts and Proceeds of Canceled Checks for Veterans' 
               Benefits Payable to Deceased Beneficiaries

    Authority: 31 U.S.C. 3702; 5 U.S.C. 5583; 38 U.S.C. 5122; Pub. L. 
No. 104-53, 211, Nov. 19, 1995; E.O. 12107.



Sec.  178.101  Scope of subpart.

    (a) Claims covered. This subpart prescribes general procedures 
applicable to claims against the United States that may be settled by 
the Director of the Office of Personnel Management pursuant to 31 U.S.C. 
3702, 5 U.S.C. 5583 and 38 U.S.C. 5122. In general, these claims involve 
Federal employees' compensation and leave and claims for proceeds of 
canceled checks for veterans' benefits payable to deceased 
beneficiaries.
    (b) Claims not covered. This subpart does not apply to claims that 
are under the exclusive jurisdiction of administrative agencies pursuant 
to specific statutory authority or claims concerning matters that are 
subject to negotiated grievance procedures under collective bargaining 
agreements entered into pursuant to 5 U.S.C. 7121(a). Also, these 
procedures do not apply to claims under the Fair Labor Standards Act 
(FLSA). Procedures for FLSA claims are set out in part 551 of this 
chapter.



Sec.  178.102  Procedures for submitting claims.

    (a) Content of claims. Except as provided in paragraph (b) of this 
section, a claim shall be submitted by the claimant in writing and must 
be signed by the claimant or by the claimant's representative. While no 
specific form is required, the request should describe the basis for the 
claim and state the amount sought. The claim should also include:
    (1) The name, address, telephone number and facsimile machine 
number, if available, of the claimant;
    (2) The name, address, telephone number and facsimile machine 
number, if available, of the agency employee who denied the claim;
    (3) A copy of the denial of the claim; and,
    (4) Any other information which the claimant believes OPM should 
consider.
    (b) Agency submissions of claims. At the discretion of the agency, 
the agency may forward the claim to OPM on the claimant's behalf. The 
claimant is responsible for ensuring that OPM receives all the 
information requested in paragraph (a) of this section.
    (c) Administrative report. At OPM's discretion, OPM may request the 
agency to provide an administrative report. This report should include:
    (1) The agency's factual findings;
    (2) The agency's conclusions of law with relevant citations;

[[Page 24]]

    (3) The agency's recommendation for disposition of the claim;
    (4) A complete copy of any regulation, instruction, memorandum, or 
policy relied upon by the agency in making its determination;
    (5) A statement that the claimant is or is not a member of a 
collective bargaining unit, and if so, a statement that the claim is or 
is not covered by a negotiated grievance procedure that specifically 
excludes the claim from coverage; and
    (6) Any other information that the agency believes OPM should 
consider.
    (d) Canceled checks for veterans' benefits. Claims for the proceeds 
of canceled checks for veterans' benefits payable to deceased 
beneficiaries must be accompanied by evidence that the claimant is the 
duly appointed representative of the decedent's estate and that the 
estate will not escheat.
    (e) Where to submit claims. (1) All claims under this section should 
be sent to the Program Manager, Office of Merit Systems Oversight and 
Effectiveness, Room 7671, Office of Personnel Management, 1900 E Street 
NW., Washington, DC 20415. Telephone inquiries regarding these claims 
may be made to (202) 606-7948.
    (2) FLSA claims should be sent to the appropriate OPM Oversight 
Division as provided in part 551 of this chapter.

[62 FR 68139, Dec. 31, 1997, as amended at 65 FR 40967, July 3, 2000]



Sec.  178.103  Claim filed by a claimant's representative.

    A claim filed by a claimant's representative must be supported by a 
duly executed power of attorney or other documentary evidence of the 
representative's right to act for the claimant.



Sec.  178.104  Statutory limitations on claims.

    (a) Statutory limitations relating to claims generally. Except as 
provided in paragraphs (b) and (c) of this section or as otherwise 
provided by law, all claims against the United States Government are 
subject to the 6-year statute of limitations contained in 31 U.S.C. 
3702(b). To satisfy the statutory limitation, a claim must be received 
by the Office of Personnel Management, or by the department or agency 
out of whose activities the claim arose, within 6 years from the date 
the claim accrued. The claimant is responsible for proving that the 
claim was filed within the applicable statute of limitations.
    (b) Claims under the Fair Labor Standards Act. Claims arising under 
the FLSA, 29 U.S.C. 207, et seq., must be received by the Office of 
Personnel Management, or by the department or agency out of whose 
activity the claim arose, within the time limitations specified in the 
FLSA.
    (c) Other statutory limitations. Statutes of limitation other than 
that identified in paragraph (a) of this section may apply to certain 
claims. Claimants are responsible for informing themselves regarding 
other possible statutory limitations.



Sec.  178.105  Basis of claim settlements.

    The burden is upon the claimant to establish the timeliness of the 
claim, the liability of the United States, and the claimant's right to 
payment. The settlement of claims is based upon the written record only, 
which will include the submissions by the claimant and the agency. OPM 
will accept the facts asserted by the agency, absent clear and 
convincing evidence to the contrary.



Sec.  178.106  Form of claim settlements.

    OPM will send a settlement to the claimant advising whether the 
claim may be allowed in whole or in part. If OPM requested an agency 
report or if the agency forwarded the claim on behalf of the claimant, 
OPM also will send the agency a copy of the settlement.



Sec.  178.107  Finality of claim settlements.

    (a) The OPM settlement is final; no further administrative review is 
available within OPM.
    (b) Nothing is this subpart limits the right of a claimant to bring 
an action in an appropriate United States court.



  Subpart B_Settlement of Accounts for Deceased Civilian Officers and 
                                Employees

    Authority: 5 U.S.C. 5581, 5582, 5583.

[[Page 25]]



Sec.  178.201  Scope of subpart.

    (a) Accounts covered. This subpart prescribes forms and procedures 
for the prompt settlement of accounts of deceased civilian officers and 
employees of the Federal Government and of the government of the 
District of Columbia (including wholly owned and mixed-ownership 
Government corporations), as stated in 5 U.S.C. 5581, 5582, 5583.
    (b) Accounts not covered. This subpart does not apply to accounts of 
deceased officers and employees of the Federal land banks, Federal 
intermediate credit banks, or regional banks for cooperatives (see 5 
U.S.C. 5581(1)). Also, these procedures do not apply to payment of 
unpaid balance of salary or other sums due deceased Senators or Members 
of the House of Representatives or their officers or employees (see 2 
U.S.C. 36a, 38a).



Sec.  178.202  Definitions.

    (a) The term deceased employees as used in this part includes former 
civilian officers and employees who die subsequent to separation from 
the employing agency.
    (b) The term money due means the pay, salary, or allowances due on 
account of the services of the decedent for the Federal Government or 
the government of the District of Columbia. It includes, but is not 
limited to:
    (1) All per diem instead of subsistence, mileage, and amounts due in 
reimbursement of travel expenses, including incidental and miscellaneous 
expenses which are incurred in connection with the travel and for which 
reimbursement is due;
    (2) All allowances upon change of official station;
    (3) All quarters and cost-of-living allowances and overtime or 
premium pay;
    (4) Amounts due for payment of cash awards for employees' 
suggestions;
    (5) Amounts due as refund of salary deductions for United States 
Savings bonds;
    (6) Payment for all accumulated and current accrued annual or 
vacation leave equal to the pay the decedent would have received had he 
or she lived and remained in the service until the expiration of the 
period of such annual or vacation leave;
    (7) The amounts of all checks drawn in payment of such compensation 
which were not delivered by the Government to the officer or employee 
during his or her lifetime or of any unnegotiated checks returned to the 
Government because of the death of the officer or employee; and
    (8) Retroactive pay under 5 U.S.C. 5344(b)(2).



Sec.  178.203  Designation of beneficiary.

    (a) Agency notification. The employing agency shall notify each 
employee of his or her right to designate a beneficiary or beneficiaries 
to receive money due, and of the disposition of money due if a 
beneficiary is not designated. An employee may change or revoke a 
designation at any time under regulations promulgated by the Director of 
the Office of Personnel Management or his or her designee.
    (b) Designation Form. Standard Form 1152, Designation of 
Beneficiary, Unpaid Compensation of Deceased Civilian Employee, is 
prescribed for use by employees in designating a beneficiary and in 
changing or revoking a previous designation; each agency will furnish 
the employee a Standard Form 1152 upon request. In the absence of the 
prescribed form, however, any designation, change, or cancellation of 
beneficiary witnessed and filed in accordance with the general 
requirements of this part will be acceptable.
    (c) Who may be designated. An employee may designate any person or 
persons as beneficiary. The term person or persons as used in this part 
includes a legal entity or the estate of the deceased employee.
    (d) Executing and filing a designation of beneficiary form. The 
Standard Form 1152 must be executed in duplicate by the employee and 
filed with the employing agency where the proper officer will sign it 
and insert the date of receipt in the space provided on each part, file 
the original, and return the duplicate to the employee. When a 
designation of beneficiary is changed or revoked, the employing agency 
should return the earlier designation to the employee, keeping a copy of 
only the current designation on file.
    (e) Effective period of a designation. A properly executed and filed 
designation

[[Page 26]]

of beneficiary will be effective as long as employment by the same 
agency continues. If an employee resigns and is reemployed, or is 
transferred to another agency, the employee must execute another 
designation of beneficiary form in accordance with paragraph (d) of this 
section. A new designation of beneficiary is not required, however, when 
an employee's agency or site, function, records, equipment, and 
personnel are absorbed by another agency.



Sec.  178.204  Order of payment precedence.

    To facilitate the settlement of the accounts of the deceased 
employees, money due an employee at the time of the employee's death 
shall be paid to the person or persons surviving at the date of death, 
in the following order of precedence, and the payment bars recovery by 
another person of amounts so paid:
    (a) First, to the beneficiary or beneficiaries designated by the 
employee in a writing received in the employing agency prior to the 
employee's death;
    (b) Second, if there is no designated beneficiary, to the surviving 
spouse of the employee;
    (c) Third, if none of the above, to the child or children of the 
employee and descendants of deceased children by representation;
    (d) Fourth, if none of the above, to the parents of the deceased 
employee or the survivor of them;
    (e) Fifth, if none of the above, to the duly appointed legal 
representative of the estate of the deceased employee; and
    (f) Sixth, if none of the above, to the person or persons entitled 
under the laws of the domicile of the employee at the time of his or her 
death.



Sec.  178.205  Procedures upon death of employee.

    (a) Claim form. As soon as practicable after the death of an 
employee, the agency in which the employee was last employed will 
request, in the order of precedence outlined in Sec.  178.204, the 
appropriate person or persons to execute Standard Form 1153, Claim for 
Unpaid Compensation of Deceased Civilian Employee.
    (b) Claims involving minors or incompetents. If a guardian or 
committee has been appointed for a minor or incompetent appearing 
entitled to unpaid compensation, the claim should be supported by a 
certificate of the court showing the appointment and qualification of 
the claimant in such capacity. If no guardian or committee has been or 
will be appointed, the initial claim should be supported by a statement 
showing:
    (1) Claimant's relationship to the minor or incompetent, if any;
    (2) The name and address of the person having care and custody of 
the minor or incompetent;
    (3) That any moneys received will be applied to the use and benefit 
of the minor or incompetent; and
    (4) That the appointment of a guardian or committee is not 
contemplated.



Sec.  178.206  Return of unnegotiated Government checks.

    All unnegotiated United States Government checks drawn to the order 
of a decedent representing money due as defined in Sec.  178.202, and in 
the possession of the claimant, should be returned to the employing 
agency concerned. Claimants should be instructed to return any other 
United States Government checks drawn to the order of a decedent, such 
as veterans benefits, social security benefits, or Federal tax refunds, 
to the agency from which the checks were received, with a request for 
further instructions from that agency.



Sec.  178.207  Claims settlement jurisdiction.

    (a) District of Columbia and Government corporations. Claims for 
unpaid compensation due deceased employees of the government of the 
District of Columbia shall be paid by the District of Columbia, and 
those of Government corporations or mixed ownership Government 
corporations may be paid by the corporations.
    (b) Office of Personnel Management. Each agency shall pay undisputed 
claims for the compensation due a deceased employee. Except as provided 
in paragraph (a) of this section, disputed claims for money due deceased 
employees of the Federal Government will be

[[Page 27]]

submitted to the Office of Merit Systems Oversight and Effectiveness, in 
accordance with Sec.  178.102 of subpart A. For example:
    (1) When doubt exists as to the amount or validity of the claim;
    (2) When doubt exists as to the person(s) properly entitled to 
payment; or
    (3) When the claim involves uncurrent checks. Uncurrent checks are 
unnegotiated and/or undelivered checks for money due the decedent which 
have not been paid by the end of the fiscal year after the fiscal year 
in which the checks were issued. The checks, if available, should 
accompany the claims.
    (c) Payment of claim. Claims for money due will be paid by the 
appropriate agency only after settlement by the Office of Merit Systems 
Oversight and Effectiveness occurs.

[62 FR 68139, Dec. 31, 1997, as amended at 65 FR 40967, July 3, 2000]



Sec.  178.208  Applicability of general procedures.

    When not in conflict with this subpart, the provisions of subpart A 
of this part relating to procedures applicable to claims generally are 
also applicable to the settlement of account of deceased civilian 
officers and employees.



PART 179_CLAIMS COLLECTION STANDARDS--Table of Contents




             Subpart A_General Provisions and Administration

Sec.
179.101 General collection standards.
179.102 Delegation of authority.

                         Subpart B_Salary Offset

179.201 Purpose.
179.202 Scope.
179.203 Definitions.
179.204 Applicability of regulations.
179.205 Waiver requests and claims to the General Accounting Office.
179.206 Notice requirements before offset.
179.207 Hearing.
179.208 Certification.
179.209 Voluntary repayment agreement as alternative to salary offset.
179.210 Special review.
179.211 Notice of salary offset.
179.212 Procedures for salary offset.
179.213 Coordinating salary offset with other agencies.
179.214 Interest, penalties and administrative costs.
179.215 Refunds.
179.216 Request for the services of a hearing official when the creditor 
          agency is not OPM.
179.217 Non-waiver of rights by payments.
179.218 Additional administrative collection action.

                     Subpart C_Administrative Offset

179.301 Scope of regulations.
179.302 Definitions.
179.303 General.
179.304 Notification procedures.
179.305 Agency review.
179.306 Written agreement for repayment.
179.307 Administrative offset.
179.308 Accelerated procedures.
179.309 Additional administrative procedures.

    Authority: 31 U.S.C. 952; 5 U.S.C. 1103; Reorganization Plan No. 2 
of 1978; 5 U.S.C. 5514; 5 CFR part 550 subpart K; 31 U.S.C. 3701; 31 
U.S.C. 3711; 31 U.S.C. 3716; 31 U.S.C. 3720A.



             Subpart A_General Provisions and Administration



Sec.  179.101  General collection standards.

    The general standards and procedures governing the collection, 
compromise, termination, and referral to the Department of Justice of 
claims for money and property that are prescribed in the regulations 
issued jointly by the General Accounting Office and the Department of 
Justice pursuant to the Federal Claims Collection Act of 1966 (4 CFR 
part 101 et seq.), apply to the administrative claim collection 
activities of OPM.

[33 FR 12406, Sept. 4, 1968]



Sec.  179.102  Delegation of authority.

    (a) The Chief Financial Officer and his or her delegates are 
designated by the Director and authorized to perform all the duties for 
which the Director is responsible under the Debt Collection Act of 1982 
and Office of Personnel Management regulations with the exception of 
debts arising from the Civil Service Retirement and Disability Fund, the 
Employees' Life Insurance Fund, the Retired Federal Employees Health 
Benefits Act (74 Stat. 849), and the Employees Health Benefits Fund. 
However, the Chief Financial Officer and his or her delegates will 
request a

[[Page 28]]

review by the General Counsel or his or her designee for all claims 
processed (in amounts of $2500 or more) for compromise, suspension, and 
termination of collection action.
    (b) The Associate Director for Retirement and Insurance and his or 
her delegates are designated by the Director and authorized to perform 
all the duties for which the Director is responsible under the Debt 
Collection Act of 1982 and Office of Personnel Management regulations on 
debts caused by payments from the Civil Service Retirement and 
Disability Fund (subchapter III of chapter 83 or chapter 84), claims 
under the provisions of the Federal Employees' Life Insurance Fund 
(chapter 87), the Retired Federal Employees Health Benefits Act (74 
Stat. 849), the Employees Health Benefits Fund (chapter 89), the Panama 
Canal Construction Annuity Act (58 Stat. 257), and, the Lighthouse 
Service Widows' Annuity Act (64 Stat. 465).

[59 FR 35216, July 11, 1994]



                         Subpart B_Salary Offset

    Source: 59 FR 35216, July 11, 1994, unless otherwise noted.



Sec.  179.201  Purpose.

    The purpose of the Debt Collection Act of 1982 (Pub. L. 97-365), is 
to provide a comprehensive statutory approach to the collection of debts 
due the Federal Government. These regulations implement section 5 of the 
Act which authorizes the collection of debts owed by Federal employees 
to the Federal Government by means of salary offset, except that no 
claim may be collected by such means if outstanding for more than 10 
years after the agency's right to collect the debt first accrued, unless 
facts material to the Government's right to collect were not known, and 
could not reasonably have been known, by the official or officials who 
were charged with the responsibility for discovery and collection of 
such debts. These regulations are consistent with the regulations on 
salary offset published by the Office of Personnel Management (OPM) on 
July 3, 1984 (49 FR 27470) in 5 CFR part 550, subpart K.



Sec.  179.202  Scope.

    (a) These regulations provide procedures for the collection of 
monies from a Federal employee's pay by salary offset to satisfy certain 
debts owed the Government.
    (b) These regulations apply to all collections by the Director of 
OPM (except collections involving debts because of payments made from 
the Civil Service Retirement and Disability Fund, payments made under 
the Retired Federal Employees Health Benefits Act (74 Stat. 849), the 
Panama Canal Construction Annuity Act and the Lighthouse Service Widows' 
Annuity Act and payments or premiums relating to the Federal Employees' 
Life Insurance Fund or the Federal Employees Health Benefits Fund) from:
    (1) Federal employees who owe debts to OPM; and
    (2) OPM employees who owe debts to other agencies.
    (c) These regulations do not apply to debts or claims arising under 
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the 
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the 
United States; or to any case where collection of a debt by salary 
offset is explicitly provided for or prohibited by another statute 
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses 
in 5 U.S.C. 4108).
    (d) Section 179.207 does not apply to any adjustment to pay arising 
from an employee's election of coverage or a change in coverage under a 
Federal benefits program requiring periodic deductions from pay, if the 
amount to be recovered was accumulated over four pay periods or less.
    (e) Nothing in these regulations precludes the compromise, 
suspension, or termination of collection actions, where appropriate, 
under the standards implementing the Federal Claims Collection Act (31 
U.S.C. 3711 et seq., 4 CFR parts 101-105, 38 CFR 1.900 et seq.).
    (f) Nothing in these regulations precludes an employee from 
requesting a waiver of the debt under applicable statute; under the 
standards and procedures specified by the Federal Claims Collection 
Standards (FCCS); or waiver of salary overpayment under 5 U.S.C. 5584, 
10 U.S.C. 2774, or 32 U.S.C. 716, by

[[Page 29]]

submitting a subsequent claim to the General Accounting Office in 
accordance with procedures established by the General Accounting Office.



Sec.  179.203  Definitions.

    As used in this subpart the following definitions shall apply:
    Agency means:
    (1) An Executive Agency as defined by section 105 of title 5, United 
States Code;
    (2) A military department as defined by section 102 of title 5, 
United States Code;
    (3) An agency or court of the judicial branch including a court as 
defined in section 610 of title 28, United States Code, the District 
Court for the Northern Mariana Islands and the Judicial Panel and 
Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    Certification means a written debt claim, as prescribed by Sec.  
179.209, that is received from a creditor agency and which requests the 
paying agency to offset the salary of an employee.
    Claim See debt.
    Creditor agency means an agency of the Federal Government to which 
the debt is owed. For purposes of this part creditor agency includes 
OPM, unless otherwise noted.
    Debt means money owed by an employee of the Federal Government to an 
agency of the Federal Government, from sources which include loans 
insured or guaranteed by the United States and all other amounts due the 
Government from fees, leases, rents, royalties, services, sales of real 
or personal property, overpayments, penalties, damages, interests, fines 
and forfeitures (except those arising under the Uniform Code of Military 
Justice) and all other similar sources.
    Delinquent means the failure to pay an obligation or debt by the 
date specified in the initial notification or applicable contractual 
agreement, unless other payment arrangements have been agreed to by OPM 
and the debtor by that date, or if, at any time thereafter, the debtor 
fails to satisfy the obligations under a payment agreement with the 
creditor agency.
    Director means the Director of OPM or his or her designee.
    Disposable pay means that part of current basic pay, special pay, 
incentive pay, retired pay, retainer pay, or, in the case of an employee 
not entitled to basic pay, other authorized pay remaining after the 
deduction of any amount required by law to be withheld. OPM shall allow 
the following deductions, and any others required by law to be withheld, 
in determining disposable pay subject to salary offset;
    (1) Federal employment taxes;
    (2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's 
Home;
    (3) Fines and forfeitures ordered by a court martial or by a 
commanding officer;
    (4) Federal, state or local income taxes no greater than would be 
the case if the employee claimed all dependents to which he or she is 
entitled and such additional amounts for which the employee presents 
evidence of a tax obligation supporting the additional withholding;
    (5) Amounts withheld from benefits payable under title II of the 
Social Security Act where the withholding is required by law;
    (6) Amounts deducted for Medicare;
    (7) Health insurance premiums;
    (8) Normal retirement contributions as explained in 5 CFR 581.105(e) 
(e.g., Civil Service Retirement deductions, Survivor Benefit Plan or 
Retired Serviceman's Family Protection Plan); and
    (9) Normal life insurance premiums (e.g., Serviceman's Group Life 
Insurance and basic Federal Employee's Group Life Insurance premiums) 
exclusive of optional life insurance premiums.
    Employee means a current employee of OPM or other agency, including 
a current member of the Armed Forces or Reserve of the Armed Forces of 
the United States.
    FCCS means the Federal Claims Collection Standards jointly published 
by the Department of Justice and the General Accounting Office of 4 CFR 
101.1 et seq.
    Hearing official means an individual (including an administrative 
law judge)

[[Page 30]]

responsible for conducting any hearing with respect to the existence or 
amount of a debt claimed, and rendering a decision on the basis of such 
hearing. A hearing official may not be under the supervision or control 
of the Director of OPM when OPM is the creditor agency.
    Notice of intent to offset or notice of intent means a written 
notice from a creditor agency to an employee that states the creditor 
agency's determination that the employee owes a debt to the creditor 
agency and apprises the employee of certain administrative rights.
    Notice of salary offset means a written notice from the paying 
agency to an employee after a certification has been issued by the 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    Office means the central and regional offices of the Office of 
Personnel Management.
    Paying agency means the agency of the Federal Government which 
employs the individual who owes a debt to an agency of the Federal 
Government. In some cases, OPM may be both the creditor agency and the 
paying agency.
    Payroll office means the payroll office in the paying agency which 
is primarily responsible for the payroll records and the coordination of 
pay matters with the appropriate personnel office with respect to an 
employee. Payroll office, with respect to OPM, means the central payroll 
office.
    Salary offset means an administrative offset to collect a debt under 
5 U.S.C. 5514 by deduction(s) at one or more officially established pay 
intervals from the current pay account of an employee, without his or 
her consent.
    Salary Offset Coordinator means an official, designated by the 
Director of OPM, who is responsible for coordinating debt collection 
activities for OPM.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to OPM or another 
agency as permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, 32 
U.S.C. 716, or any other law.



Sec.  179.204  Applicability of regulations.

    These regulations are to be followed for all OPM collections (except 
those involving retirement, life, and health insurance debts for 
recovery by the Associate Director for Retirement and Insurance) in 
instances where:
    (a) OPM is owed a debt by an individual currently employed by 
another agency;
    (b) OPM is owed a debt by an individual who is a current employee of 
OPM; or
    (c) OPM currently employs an individual who owes a debt to another 
Federal agency. Upon receipt of proper certification from the creditor 
agency, OPM will offset the debtor-employee's salary in accordance with 
these regulations.



Sec.  179.205  Waiver requests and claims to the General Accounting Office.

    These regulations do not preclude an employee from requesting waiver 
of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C. 716, or 
in any way questioning the amount or validity of a debt by submitting a 
subsequent claim to the General Accounting Office in accordance with the 
procedures prescribed by the General Accounting Office. These 
regulations do not preclude an employee from requesting a waiver 
pursuant to other statutory provisions pertaining to the particular debt 
being collected.



Sec.  179.206  Notice requirements before offset.

    (a) Deductions under the authority of 5 U.S.C. 5514 shall not be 
made unless the creditor agency provides the employee with written 
notice that he/she owes a debt to the Federal government a minimum of 30 
calendar days before salary offset is initiated. When OPM is the 
creditor agency, this notice of intent to offset an employee's salary 
shall be hand-delivered at work, or sent by registered mail, return 
receipt requested, to the employee's most current address that is 
available to the Office and will state:
    (1) That the creditor agency has reviewed the records relating to 
the claim and has determined that a debt is owed, the amount of the 
debt, and the facts giving rise to the debt;

[[Page 31]]

    (2) The creditor agency's intention to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest are paid in full;
    (3) The amount, frequency, beginning date, and duration of the 
intended deductions;
    (4) An explanation of OPM's policy concerning interest, penalties 
and administrative costs including a statement that such assessments 
must be made unless excused in accordance with the FCCS, 4 CFR 101.1 et 
seq. (Sec.  179.214);
    (5) The employee's right to inspect and copy all records of the 
office pertaining to the debt claimed, or to request and to receive 
copies of such records if personal inspection is impractical;
    (6) If not previously provided, the opportunity to establish a 
schedule for the voluntary repayment of the debt through offset or to 
enter into an agreement to establish a schedule for repayment of the 
debt in lieu of offset (4 CFR 102.2(e)). The agreement must contain 
terms agreeable to the Office and must be in such form that it is 
legally enforceable. The agreement must:
    (i) Be in writing;
    (ii) Be signed by both the employee and the creditor agency;
    (iii) Specify all the terms of the arrangement for payment; and
    (iv) Contain a provision accelerating the debt in the event of a 
default by the debtor, but such an increase may not result in a 
deduction that exceeds 15 percent of the employee's disposable pay 
unless the employee has agreed in writing to the deduction of a greater 
amount (5 CFR 550.1104(i)).
    (7) The right to a hearing conducted by an impartial hearing 
official (an administrative law judge, or alternatively, a hearing 
official not under the supervision or control of the Director) with 
respect to the existence and amount of the debt claimed, or the 
repayment schedule (i.e., the percentage of disposable pay to be 
deducted each pay period), so long as a petition is filed by the 
employee as prescribed in Sec.  179.207;
    (8) The method and time period for requesting a hearing;
    (9) The name, address and phone number of an official or employee of 
the Office who may be contacted concerning procedures for requesting a 
hearing;
    (10) The name and address of the office to which the petition for a 
hearing should be sent;
    (11) That a timely and properly filed petition for hearing will stay 
the commencement of collection proceedings (a timely filing must be 
received in the office specified under paragraph (a)(10) of this section 
within 15 calendar days after receipt of such notice of intent to 
offset);
    (12) That the Office will initiate certification procedures to 
implement a salary offset (which may not exceed 15 percent of the 
employee's disposable pay) not less than 30 days from the date of 
receipt of the notice of debt, unless the employee files a timely 
petition for a hearing;
    (13) That a final decision on the hearing (if a hearing is 
requested) will be issued at the earliest practical date, but not later 
than 60 days after the filing of the petition requesting the hearing, 
unless the employee requests and the hearing official grants a delay in 
the proceedings;
    (14) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to;
    (i) Disciplinary procedures appropriate under chapter 75 of title 5, 
United States code; part 752 of title 5, Code of Federal Regulations; or 
any other applicable statute or regulations;
    (ii) Penalties under the False Claims Act, sections 3729 through 
3731 of title 31, United States Code, or any other applicable statutory 
authority; and
    (iii) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18, United States code, or any other applicable statutory 
authority;
    (15) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (16) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt, 
which are later waived or found not owed to the United

[[Page 32]]

States, will be promptly refunded to the employee; and
    (17) That proceedings with respect to such debt are governed by 
section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).
    (b) The Office is not required to comply with paragraph (a) of this 
section for any adjustment to pay arising from:
    (1) An employee's selection of coverage or a change in coverage 
under a Federal benefits program requiring periodic deductions from pay, 
if the amount to be recovered was accumulated over four pay periods or 
less; or
    (2) An employee's consent to make voluntary withholdings from his or 
her current pay account.



Sec.  179.207  Hearing.

    (a) Request for hearing. Except as provided in paragraph (b) of this 
section, an employee who desires a hearing concerning the existence or 
amount of the debt or the proposed offset schedule must send such a 
request to the office designated in the notice of intent (Sec.  
179.207(a)(10)). The request (or petition) for hearing must be received 
by the designated office not later than 15 calendar days following the 
employee's receipt of the notice. The employee's request (or petition) 
must:
    (1) Be signed by the employee;
    (2) Fully identify and explain with reasonable specificity all the 
facts, evidence and witnesses, if any, that the employee believes 
support his or her position; and
    (3) Specify whether an oral or paper hearing is requested. If an 
oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone (4 CFR 
102.3(c)).
    (b) Failure to timely submit. (1) If the employee files a petition 
for a hearing after the expiration of the 15 calendar day period 
provided for in paragraph (a) of this section, the Office may accept the 
request if the employee can show that the delay was the result of 
circumstances beyond his of her control or failure to receive actual 
notice of the filing deadline (unless the employee had actual notice of 
the filing deadline).
    (2) An employee waives the right to a hearing, and will have his or 
her disposable pay offset in accordance with the Office offset schedule, 
if the employee:
    (i) Fails to file a timely request for a hearing unless such failure 
is excused; or
    (ii) Fails to appear at an oral hearing of which he or she was 
notified unless the hearing official determines that failure to appear 
was due to circumstances beyond the employee's control.
    (c) Representation at the hearing. The creditor agency may be 
represented by legal counsel. The employee may represent himself or 
herself or may be represented by an individual of his or her choice and 
at his or her expense.
    (d) Review of Office records related to the debt. (1) An employee 
who intends to inspect or copy creditor agency records related to the 
debt, as provided by Sec.  179.207(a)(5), must send a letter to the 
official designated in the notice of intent to offset stating his or her 
intention. The letter must be received within 15 calendar days after the 
employee's receipt of the notice.
    (2) In response to a timely request submitted by the debtor, the 
designated official will notify the employee of the location and time 
when the employee may inspect and copy records related to the debt.
    (3) If personal inspection is impractical, arrangements shall be 
made to end copies of such records to the employee.
    (e) Hearing official. The Office may request an administrative law 
judge to conduct the hearing, or the Office may obtain a hearing 
official who is not under the supervision or control of the Director of 
OPM.
    (f) Obtaining the services of a hearing official when OPM is the 
creditor agency. (1) When the debtor is not an OPM employee and the 
Office cannot provide a prompt and appropriate hearing before a hearing 
official furnished pursuant to another lawful arrangement, the Office 
may contact an agent of the paying agency designated in 5 CFR part 581, 
appendix A, or other individual designated by the paying agency, and 
request a hearing official.

[[Page 33]]

    (2) When the debtor is an OPM employee, the Office may contact any 
agent of another agency designated in 5 CFR part 581, appendix A, or 
otherwise designated by that agency, to request a hearing official.
    (g) Procedure--(1) General. After the employee requests a hearing, 
the hearing official shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time and location of the hearing. If the hearing 
will be paper, the employee shall be notified that he or she should 
submit arguments in writing to the hearing official by a specified date 
after which the record shall be closed. This date shall give the 
employee reasonable time to submit documentation.
    (2) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing is 
not an adversarial adjudication and need not take the form of an 
evidentiary hearing. Oral hearings may take the form of, but are not 
limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses, and argument;
    (ii) Informal meetings with an interview of the employee; or
    (iii) Formal written submissions with an opportunity for oral 
presentation.
    (3) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, he or she will make a determination based upon 
a review of the available written record (4 CFR 102.3(c) (2) and (3)).
    (4) Record. The hearing official must maintain a summary record of 
any hearing provided by this subpart (4 CFR 102.3(c)(1)(ii)). Witnesses 
who testify in oral hearings will do so under oath or affirmation.
    (h) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 days after the date on which the petition 
was received by the creditor agency, unless the employee requests a 
delay in the proceedings. In such case the 60-day decision period shall 
be extended by the number of days by which the hearing was postponed.
    (i) Content of decision. The written decision shall include:
    (1) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (2) The hearing official's findings, analysis, and conclusions 
including a determination whether the debtor's petition for hearing was 
baseless and resulted from an intent to delay creditor agency collection 
activity and whether the Office should pursue other actions against the 
debtor as provided by 5 CFR 550.1104(d)(11); and
    (3) The terms of any repayment schedules, if applicable.
    (j) Failure to appear. In the absence of good cause shown (e.g., 
illness), an employee who fails to appear at a hearing shall be deemed, 
for the purpose of this subpart, to admit the existence and amount of 
the debt as described in the notice of intent. If the representative of 
the creditor agency fails to appear, the hearing official shall proceed 
with the hearing as scheduled and make his/her determination based upon 
the oral testimony presented and the documentary evidence submitted by 
both parties. With the agreement of both parties, the hearing official 
shall schedule a new hearing date. Both parties shall be given 
reasonable notice of the time and place of the new hearing.



Sec.  179.208  Certification.

    (a) OPM salary offset coordinator shall provide a certification to 
the paying agency in all cases where:
    (1) The hearing official determines that a debt exists;
    (2) The employee fails to contest the existence and amount of the 
debt by failing to request a hearing; or
    (3) The employee fails to contest the existence of the debt by 
failing to appear at a hearing.
    (b) The certification must be in writing and must state:
    (1) That the employee owes the debt;
    (2) The amount and basis of the debt;

[[Page 34]]

    (3) The date the Government's right to collect the debt first 
accrued;
    (4) That the Office's regulations have been approved by OPM pursuant 
to 5 CFR part 550, subpart K;
    (5) The date on which payment(s) is due;
    (6) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment or 
percentage of disposable pay, and the commencement date of the first 
installment, if a date other than the next officially established pay 
period is required; and
    (7) The date(s) of any action(s) taken under 5 U.S.C. 5514(b).



Sec.  179.209  Voluntary repayment agreement as alternative to salary offset.

    (a)(1) In response to a notice of intent, an employee may propose to 
repay the debt by making voluntary installment payments as an 
alternative to salary offset. An employee who wishes to repay a debt 
without salary offset shall submit in writing a proposed agreement to 
repay the debt. The proposal shall admit the existence of the debt, and 
the agreement must be in such form that it is legally enforceable. The 
agreement must:
    (i) Be in writing;
    (ii) Be signed by both the employee and the creditor agency;
    (iii) Specify all the terms of the arrangement for payment; and
    (iv) Contain a provision accelerating the debt in the event of 
default by the debtor, but such an increase may not result in a 
deduction that exceeds 15 percent of the employee's disposable pay 
unless the employee has agreed in writing to deduction of a greater 
amount (5 CFR 550.1104(i)).
    (2) Any proposal under paragraph (a) of this section must be 
received by the official designated in the notice of intent within 30 
calendar days after receipt of the notice.
    (b) The creditor agency will review a timely and properly submitted 
repayment proposal by the employee debtor and notify the employee 
whether the proposed written agreement for repayment is acceptable. It 
is within the creditor agency's discretion to accept a repayment 
agreement instead of proceeding by offset.
    (c) If the creditor agency decides that the proposed repayment 
agreement is unacceptable, the employee will have 15 days from the date 
he or she received notice of that decision to file a petition for a 
hearing or a special review as provided by Sec.  179.210.
    (d) If the creditor agency decides that the proposed repayment 
agreement is acceptable, the alternative arrangement must be in writing, 
signed by both the employee and the creditor agency designee and meet 
the other requirements of this section for a voluntary repayment 
agreement.



Sec.  179.210  Special review.

    (a) An OPM employee subject to salary offset or a voluntary 
repayment agreement, may, at any time, request a special review by the 
Office of the amount of the salary offset or voluntary payment, based on 
materially changed circumstances such as, but not limited to, 
catastrophic illness, divorce, death, or disability.
    (b) In determining whether an offset would prevent the employee from 
meeting essential subsistence expenses (food, housing, clothing, 
transportation and medical care), the employee shall submit a detailed 
statement and supporting documents for the employee, his or her spouse, 
and dependents indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing and transportation;
    (6) Medical expenses; and
    (7) Exceptional expenses, if any.

If an OPM employee requests a special review under this section, the 
employee shall file an alternative proposed offset or payment schedule 
and a statement, with supporting documents (Sec.  179.210(b)), stating 
why the current salary offset or payments result in an extreme financial 
hardship to the employee.
    (c) The Director shall evaluate the statement and supporting 
documents, and determine whether the original offset or repayment 
schedule imposes an extreme financial hardship on the employee. The 
Director shall notify the

[[Page 35]]

employee in writing of such determination, including, if appropriate, a 
revised offset or repayment schedule.
    (d) If the special review results in a revised offset or repayment 
schedule, the OPM salary offset coordinator shall provide a new 
certification to the payroll office.



Sec.  179.211  Notice of salary offset.

    (a) Upon receipt of proper certification from a creditor agency, the 
OPM payroll office will send the OPM employee, identified in the 
certification as the debtor, a written notice of salary offset. Such 
notice shall, at a minimum:
    (1) State that OPM has received a properly certified debt claim from 
a creditor agency;
    (2) Contain a copy of the certification received from the creditor 
agency;
    (3) Advise the employee that salary offset will be initiated at the 
next officially established pay interval; and
    (4) State the amount of the claim and amount of deductions.
    (b) The payroll office shall provide a copy of the notice to the 
creditor agency and advise such agency of the dollar amount to be offset 
and the pay period when the offset will begin.



Sec.  179.212  Procedures for salary offset.

    (a) The Director or his or her designee shall coordinate salary 
deductions under this subpart.
    (b) OPM payroll office shall determine the amount of an employee's 
disposable pay and implement the salary offset.
    (c) Deductions shall begin effective the pay period following 
receipt by OPM's payroll office of proper certification of the debt 
(Sec.  179.208).
    (d) Types of collection--(1) Lump-sum payment. A debt will be 
collected in a lump sum if possible. If an employee is financially 
unable to pay in one lump sum or the amount of the debt exceeds 15 
percent of disposable pay for an officially established pay interval, 
collection must be made in installments.
    (2) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment and, 
except in rare circumstances, not to exceed 3 years. The size and 
frequency of installment deductions will bear a reasonable relation to 
the size of the debt and the employee's ability to pay. The amount 
deducted for any period will not exceed 15 percent of the disposable pay 
from which the deduction is made unless the employee has agreed in 
writing to the deduction of a greater amount.
    (3) Lump-sum deductions from final check. A lump-sum deduction 
exceeding the 15 percent disposable pay limitation may be made from any 
final salary payment pursuant to 31 U.S.C. 3716 in order to liquidate 
the debt, whether the employee is being separated voluntarily or 
involuntarily.
    (4) Lump-sum deductions from other sources. When an employee subject 
to salary offset is separated from OPM and the balance of the debt 
cannot be liquidated by offset of the final salary check, the Office, 
pursuant to 31 U.S.C. 3716, the FCCS and OPM's implementing regulations, 
may offset the balance of the debt against any financial payment due the 
employee from the U.S. Government.
    (e) Multiple debts. In instances where two or more creditor agencies 
are seeking salary offset, or where two or more debts are owed to a 
single creditor agency, OPM payroll office may, at its discretion, 
determine whether one or more debts should be offset simultaneously 
within the 15 percent limitation.
    (f) Precedence of debts owed to OPM. For OPM employees, debts owed 
to the Office generally take precedence over debts owed to other 
agencies. In the event that a debt to the Office is certified while an 
employee is subject to a salary offset to repay another agency, the OPM 
payroll office may decide whether to have that debt repaid in full 
before collecting its claim or whether changes should be made in the 
salary deduction being sent to the other agency. If debts owed the 
Office can be collected in one pay period, the payroll office may 
suspend the salary offset to the other agency for that pay period in 
order to liquidate the office debt.
    (g) When an employee owes two or more debts, the best interests of 
the Government shall be the primary consideration in determining the 
order of debt collection. The OPM payroll office, in making this 
determination,

[[Page 36]]

will be guided primarily by the statute of limitations that affects the 
collection of the debt(s).



Sec.  179.213  Coordinating salary offset with other agencies.

    (a) Responsibility of OPM as the creditor agency. (1) The Director 
or his or her designee shall coordinate debt collections with other 
agencies and shall, as appropriate:
    (i) Arrange for a hearing or special review upon proper petitioning 
by a Federal employee; and
    (ii) Prescribe, upon consultation with the General Counsel, such 
additional practices and procedures as may be necessary to carry out the 
intent of this regulation.
    (2) The designated salary offset coordinator will be responsible 
for:
    (i) Ensuring that each notice of intent to offset is consistent with 
the requirements of Sec.  179.206;
    (ii) Ensuring that each certification of debt that is sent to a 
paying agency is consistent with the requirements of Sec.  179.208;
    (iii) Obtaining hearing officials from other agencies pursuant to 
Sec.  179.207(f); and
    (iv) Ensuring that hearings are properly scheduled.
    (3) Requesting recovery from current paying agency. Upon completion 
of the procedures established in these regulations and pursuant to 5 
U.S.C. 5514, the Office must:
    (i) Certify, in writing, to the paying agency that the employee owes 
the debt, the amount and basis of the debt, the date on which payment(s) 
is due, the date the Government's right to collect the debt first 
accrued, and that the Office's regulations implementing 5 U.S.C. 5514 
have been approved by the Office of Personnel Management;
    (ii) Advise the paying agency of the amount or percentage of 
disposable pay to be collected in each installment and the number and 
commencing date of the installments (if a date other than the next 
officially established pay period is required);
    (iii) Advise the paying agency of the action(s) taken under 5 U.S.C. 
5514(b) and give the date(s) and action(s) was taken (unless the 
employee has consented to the salary offset in writing or signed a 
statement acknowledging receipt of the required procedures and the 
written consent or statement is forwarded to the paying agency);
    (iv) Submit a debt claim certification containing the information 
specified in paragraphs (a)(3)(i), (a)(3)(ii) and (a)(3)(iii) of this 
section and an installment agreement (or other instruction on the 
payment schedule), if applicable, to the employee's paying agency; and
    (v) Submit the debt claim, as provided in Sec.  179.208, to the 
employee's paying agency for collection if the employee is in the 
process of separating, and has not received a final salary check, or 
other final payment(s) from the paying agency. The paying agency must 
certify the total amount of its collection on the debt and send a copy 
of the certification to the employee and another copy to the creditor 
agency. If the paying agency's collection does not fully satisfy the 
debt, and the paying agency is aware that the debtor is entitled to 
payments from the Civil Service Retirement and Disability Fund or other 
similar payments that may be due the debtor employee from other Federal 
Government sources, the paying agency will provide written notification 
of the outstanding debt to the agency responsible for making such other 
payments to the debtor employee. The written notification shall state 
that the employee owes a debt (including the amount) and that the 
provisions of this section have been fully complied with. The Office 
must submit a properly certified claim to the agency responsible for 
making such payments before the collection can be made.
    (4) Separated employee. If the employee is already separated and all 
payments due from his or her former paying agency have been paid, the 
Office may request, unless otherwise prohibited, that money due and 
payable to the employee from the Civil Service Retirement and Disability 
Fund (5 CFR 831.1801 et seq. or 5 CFR 845.401 et seq.) or other similar 
funds, be administratively offset to collect the debt (31 U.S.C. 3716 
and the FCCS).
    (5) Employee transfer. When an employee transfers from one paying 
agency to another paying agency, the Office

[[Page 37]]

is not required to repeat the due process procedures described in 5 
U.S.C. 5514 and this subpart to resume the collection. The Office will 
submit a properly certified claim to the new paying agency and will 
subsequently review the debt to make sure the collection is resumed by 
the new paying agency.
    (b) Responsibility of the Office as the paying agency--(1) Complete 
claim. When the Office receives a certified claim from a creditor 
agency, deductions should be scheduled to begin at the next officially 
established pay interval. Before deductions can begin, the employee must 
receive written notice from the Office including:
    (i) A statement that the Office has received a certified debt claim 
from the creditor agency;
    (ii) The amount of the debt claim;
    (iii) The date salary offset deductions will begin, and
    (iv) The amount of such deductions.
    (2) Incomplete claim. When the Office receives an incomplete 
certification of debt from a creditor agency, the Office must return the 
debt claim with notice that procedures under 5 U.S.C. 5514 and 5 CFR 
550.1101 et seq. must be followed and a properly certified debt claim 
received before action will be taken to collect from the employee's 
current pay account.
    (3) Review. The Office is not authorized to review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt certified by the creditor agency.
    (4) Employees who transfer from one paying agency to another. If, 
after the creditor agency has submitted the debt claim to the Office, 
the employee transfers from OPM to a different paying agency before the 
debt is collected in full, the Office will certify the total amount 
collected on the debt. One copy of the certification will be furnished 
to the employee and one copy to the creditor agency along with notice of 
the employee's transfer.



Sec.  179.214  Interest, penalties and administrative costs.

    The office shall assess interest, penalties and administrative costs 
on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR part 101.1 et seq. 
Penalties and administrative costs will be assessed on all delinquent 
debts.
    (a) In cases of default on a previous repayment agreement, the 
Office reserves the right to set a new interest rate which reflects the 
current value of funds to the Treasury at the time a new repayment 
agreement is executed.
    (b) The Office, on a case-by-case basis, may waive all interest 
accrued on debts paid in full within 60 days of the due date if there is 
no indication of fault or lack of good faith on the part of the debtor.
    (c) The Office may waive, in whole or in part, the collection of 
interest, penalties, and/or administrative costs assessed under this 
section under the criteria specified in part 103 of 4 CFR, chapter II, 
relating to the compromise of claims (without regard to the amount of 
the debt).
    (d) The Office may waive, in whole or in part, the collection of 
interest, penalties, and/or administrative costs assessed under this 
section if the Office determines that collection of these charges would 
be against equity and good conscience or not in the best interests of 
the United States.
    (e) The Office shall waive the accrual of interest pending 
consideration of a request for reconsideration, administrative review, 
or waiver of the underlying debt under provisions of a permissive 
statute providing for such review related to the debt.
    (f) The Office shall waive interest on repayment agreements when the 
amount of interest accruing equals or exceeds the amount of installments 
the debtor can reasonably afford and there is no indication of fault or 
lack of good faith on the part of the debtor.



Sec.  179.215  Refunds.

    (a) The Office shall promptly refund any amounts deducted under the 
authority of 5 U.S.C. 5514 when:
    (1) The debt is waived or otherwise found not to be owing the United 
States (unless expressly prohibited by statute or regulation); or
    (2) An administrative or judicial order directs the Office to make a 
refund.
    (b) Unless required or permitted by law or contract, refunds under 
this subsection shall not bear interest.

[[Page 38]]



Sec.  179.216  Request for the services of a hearing official when the creditor agency is not OPM.

    (a) The Office will provide a hearing official upon request of the 
creditor agency when the debtor is employed by the Office and the 
creditor agency cannot provide a prompt and appropriate hearing before a 
hearing official furnished pursuant to another lawful arrangement.
    (b) The salary offset coordinator will secure qualified personnel to 
serve as hearing officials.
    (c) Services rendered under this section will be provided on a fully 
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31 
U.S.C. 1535.



Sec.  179.217  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any portion of a debt 
collected under this subpart must not be construed as a waiver of any 
rights which the employee may have under 5 U.S.C. 5514 or any other 
provision of contract or law unless there are statutory or contractual 
provisions to the contrary.



Sec.  179.218  Additional administrative collection action.

    Nothing contained in this subpart is intended to preclude the use of 
any other administrative remedy which may be appropriate.



                     Subpart C_Administrative Offset

    Source: 59 FR 35214, July 11, 1994, unless otherwise noted.



Sec.  179.301  Scope of regulations.

    These regulations apply to the collection of debts owed to the 
United States arising from transactions with OPM other than those 
involving payments made from the Civil Service Retirement and Disability 
Fund (the Fund), or where a request for an offset from OPM's 
administrative accounts--other than the Fund--is received by OPM from 
another Federal agency. Regulations for other agencies to request OPM's 
Retirement and Insurance Group to recover a debt from the Fund are 
provided at subpart R of part 831 and subpart D of part 845 of title 5, 
Code of Federal Regulations. These regulations are consistent with the 
Federal Claims Collection Standards on Administrative Offset issued 
jointly by the Department of Justice and the General Accounting Office 
as set forth in 4 CFR 102.3.



Sec.  179.302  Definitions.

    Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding money payable by the United States Government to, or held by 
the Government for, a person to satisfy a debt the person owes the 
Government.
    Person, includes a natural person or persons, profit or non-profit 
corporation, partnership, association, trust, estate, consortium, or 
other entity which is capable of owing a debt to the United States 
Government except that agencies of the United States, or of any State or 
local government, shall be excluded.



Sec.  179.303  General.

    (a) The Director or his or her designee, after attempting to collect 
a debt from a person under section 3(a) of the Federal Claims Collection 
Act of 1966, as amended (31 U.S.C. 3711(a)), may collect the debt by 
administrative offset subject to the following:
    (1) The debt is certain in amount; and
    (2) It is in the best interest of the United States to collect the 
debt by administrative offset because it is less costly and speeds 
payment of the debt;
    (b) The Director, or his or her designee, may initiate 
administrative offset with regard to debts owed by a person to another 
agency of the United States Government, upon receipt of a request from 
the head of another agency, or his or her designee, and a certification 
that the debt exists and that the person has been afforded the necessary 
due process rights.
    (c) The Director, or his or her designee, may request another agency 
that holds funds payable to an OPM debtor to offset the debt against the 
funds held and will provide certification that:
    (1) The debt exists; and
    (2) The person has been afforded the necessary due process rights.
    (d) If the 6-year period for bringing action on a debt provided in 
28 U.S.C.

[[Page 39]]

2415 has expired, then administrative offset may be used to collect the 
debt only if the costs of bringing such action are likely to be less 
than the amount of the debt.
    (e) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering and collecting such debt.
    (f) These regulations do not apply to:
    (1) A case in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by another statute.
    (2) Debts owed to OPM by other agencies of the United States or by 
any State or local government.



Sec.  179.304  Notification procedures.

    Before collecting any debt through administrative offset, a notice 
of intent to offset shall be sent to the debtor by certified mail, 
return receipt requested, at the most current address that is available 
to OPM. The notice shall provide:
    (a) A description of the nature and amount of the debt and the 
intention of OPM to collect the debt through administrative offset;
    (b) An opportunity to inspect and copy the records of OPM with 
respect to the debt;
    (c) An opportunity for review within OPM concerning OPM's 
determinations with respect to the debt; and
    (d) An opportunity to enter into a written agreement for the 
repayment of the amount of the debt.



Sec.  179.305  Agency review.

    (a) A debtor may dispute the existence of the debt, the amount of 
the debt, or the terms of repayment. The request to review a disputed 
debt must be received by the OPM official identified in the notification 
within 30 calendar days of the debtor's receipt of the written notice 
described in Sec.  179.304.
    (b) If the debtor requests an opportunity to inspect or copy OPM's 
records concerning the disputed claim, 10 business days will be granted 
for the review. The time period will be measured from the time the 
request for inspection is granted or from the time the copy of the 
records is received by the debtor.
    (c) Pending the resolution of a dispute initiated by the debtor, 
transactions in any of the debtor's account(s) maintained in OPM may be 
temporarily suspended to the extent of the debt that is owed. Depending 
on the type of transaction, the suspension could preclude payment, 
removal, or transfer, as well as prevent the payment of interest or 
discount due thereon. Should the dispute be resolved in the debtor's 
favor, the suspension will be lifted immediately.
    (d) During the review period, interest, penalties, and 
administrative costs authorized under the Federal Claims Collection Act 
of 1966, as amended, will continue to accrue.



Sec.  179.306  Written agreement for repayment.

    A debtor who admits liability but elects not to have the debt 
collected by administrative offset will be afforded an opportunity to 
negotiate a written agreement for the repayment of the debt. If the 
financial condition of the debtor does not support the ability to pay in 
one lump-sum, reasonable installments may be considered. No installment 
arrangement will be considered unless the debtor submits a financial 
statement, executed under penalty of perjury, reflecting the debtor's 
assets, liabilities, income, and expenses. The financial statement must 
be submitted within 10 business days of OPM's request for the statement. 
At OPM's option, a confess-judgment note or bond of indemnity with 
surety may be required for the installment agreement. Notwithstanding 
the provisions of this section, any reduction or compromise of a claim 
will be governed by 4 CFR part 103 and 31 U.S.C. 3711.



Sec.  179.307  Administrative offset.

    (a) If the debtor does not exercise the right to request a review 
within the time specified in Sec.  179.305 or, if as a result of the 
review, it is determined that the debt is due and no written agreement 
is executed, then administrative offset shall be ordered in accordance

[[Page 40]]

with these regulations without further notice.
    (b) Request for offset to a Federal agency: The Director or his or 
her designee may request that funds due and payable to a debtor by a 
Federal agency be administratively offset in order to collect a debt 
owned to OPM by that debtor. In requesting administrative offset OPM, as 
creditor, will certify in writing to the Federal agency holding funds of 
the debtor:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt; and
    (3) That OPM has complied with the requirements of 31 U.S.C. 3716, 
its own administrative offset regulations, and the applicable provisions 
of 4 CFR part 102 with respect to providing the debtor with due process.
    (c) Request for offset from a Federal agency: When administrative 
offset is authorized, any Federal creditor agency may request OPM to 
make an administrative offset from any OPM funds that are due and 
payable to a creditor agency's debtor. OPM shall initiate the requested 
administrative offset only upon:
    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 4 CFR part 102, 
including providing any required hearing or review.
    (2) A determination by OPM that collection by offset against funds 
payable by OPM would not otherwise be contrary to law.



Sec.  179.308  Accelerated procedures.

    OPM may make an administrative offset against a payment to be made 
to the debtor prior to the completion of the procedures required by 
Sec.  Sec.  179.304 and 179.305 if failure to take the offset would 
substantially jeopardize OPM's ability to collect the debt, and the time 
before the payment is to be made does not reasonably permit the 
completion of those procedures. Such prior offset shall be promptly 
followed by the completion of those procedures. Amounts recovered by 
offset but later found not to be owed to OPM shall be promptly refunded.



Sec.  179.309  Additional administrative procedures.

    Nothing contained in this chapter is intended to preclude the use of 
any other administrative remedy which may be available.



PART 180_EMPLOYEES' PERSONAL PROPERTY CLAIMS--Table of Contents




Sec.
180.101 Scope and purpose.
180.102 Claimants.
180.103 Time limitations.
180.104 Allowable claims.
180.105 Claims not allowed.
180.106 Claims involving carriers and insurers.
180.107 Claims procedure.
180.108 Settlement of claims.

    Authority: Sec. 3, 78 Stat. 767, as amended; 31 U.S.C. 241.

    Source: 43 FR 47163, Oct. 13, 1978, unless otherwise noted.



Sec.  180.101  Scope and purpose.

    (a) The Military Personnel and Civilian Employees' Claims Act of 
1964, 31 U.S.C. 240 to 243, authorizes the Director, Office of Personnel 
Management to settle and pay (including replacement in kind) claims of 
officers and employees of OPM, amounting to not more than $15,000, for 
damage to or loss of personal property incident to their service. Claims 
are payable only for such types, quantities, or amounts of tangible 
personal property (including money) as the approving authority shall 
determine to be reasonable, useful, or proper under the circumstances 
existing at the time and place of the loss. In determining what is 
reasonable, useful, or proper, the approving authority will consider the 
type and quantity of property involved, circumstances attending 
acquistion and use of the property, and whether possession or use by the 
claimant at the time of damage or loss was incident to service.
    (b) The Government does not underwrite all personal property losses 
that a claimant may sustain and it does not

[[Page 41]]

underwrite individual tastes. While the Government does not attempt to 
limit possession of property by an individual, payment for damage or 
loss is made only to the extent that the possession of the property is 
determined to be reasonable, useful, or proper. If individuals possess 
excessive quantities of items, or expensive items, they should have such 
property privately insured.



Sec.  180.102  Claimants.

    (a) The following are proper claimants:
    (1) Officers and employees of OPM;
    (2) Former officers and employees of OPM whose claims arose out of 
incidents which occurred before their separation;
    (3) The authorized agent or legal representative of persons in 
Sec. Sec.  180.102(a)(1) and 180.102(a)(2);
    (4) Survivors of persons in Sec. Sec.  180.102(a)(1) and 
180.102(a)(2) in the following order of precedence:
    (i) Spouse,
    (ii) Children,
    (iii) Father or mother, or both,
    (iv) Brothers or sisters, or both.
    (b) A claim may not be presented by or for the benefit of a 
subrogee, assignee, conditional vendor, or other third party.



Sec.  180.103  Time limitations.

    A claim must be presented in writing within 2 years after it 
accrues, except during war or armed conflict. If war or armed conflict 
occurs within the 2-year period following accrual, when claimant shows 
good cause, the claim may be presented within 2 years after the cause 
ceases to exist but not more than 2 years after termination of the war 
or armed conflict. A claim accrues when loss or damage is or should have 
been discovered by claimant even though such loss or damage occurred at 
a prior time.



Sec.  180.104  Allowable claims.

    (a) A claim may be allowed only if:
    (1) The damage or loss was not caused wholly or partly by the 
negligent or wrongful act of the claimant, claimant's agent, a member of 
claimant's family, or claimant's private employee (the standard to be 
applied is that of reasonable care under the circumstances);
    (2) The possession of the property damaged or lost and the quantity 
possessed is determined to have been reasonable, useful, or proper under 
the circumstances; and
    (3) The claim is substantiated by proper and convincing evidence.
    (b) Claims which are otherwise allowable under this part shall not 
be disallowed solely because the property was not in the possession of 
the claimant at the time of the damage or loss or solely because the 
claimant was not legal owner of the property for which the claim is 
made. For example, borrowed property may be the subject of a claim.
    (c) Subject to the conditions in Sec.  180.104(a) and the other 
provisions of this part, any claim for damage to or loss of personal 
property incident to service with OPM may be considered and allowed. The 
following are examples of the principal types of claims which may be 
allowed. These examples are not exclusive and other types of claims may 
be allowed unless excluded by Sec.  180.106:
    (1) Property damaged or lost in quarters. Claims may be allowed for 
damage to or loss of property located at:
    (i) Quarters within the 50 States and the District of Columbia that 
were assigned to the claimant or otherwise provided in kind by the 
United States;
    (ii) Quarters outside the 50 States and the District of Columbia 
that were occupied by the claimant, whether or not they were assigned or 
otherwise provided in kind by the United States, except when the 
claimant is a local inhabitant; or
    (iii) Any warehouse, office, working area, or other place (except 
quarters) authorized or apparently authorized for the reception or 
storage of property.
    (2) Transportation or travel losses. Claims may be allowed for 
damage to or loss of property incident to transportation or storage 
pursuant to orders, or in connection with travel under orders, including 
property in custody of a carrier, an agent or agency of the Government, 
or the claimant.
    (3) Motor vehicles. Claims may be allowed for automobiles and other 
motor vehicles damaged or lost in oversea

[[Page 42]]

shipments provided by the Government. ``Shipments provided by the 
Government'' means via Government vessels, charter of commercial 
vessels, or by Government bills of lading on commercial vessels, and 
includes storage, unloading, and off-loading incident thereto. Other 
claims for damage to or loss of automobiles and other motor vehicles may 
be allowed only when use of the vehicle on a non-reimbursable basis was 
required by the claimant's supervisor.
    (4) Mobile homes. Claims may be allowed for damage to or loss of 
mobile homes and their contents under the provisions of Sec.  
180.104(c)(2). Claims for structural damage to mobile homes, other than 
that caused by collision, and damage to contents of mobile homes 
resulting from such structural damage must contain conclusive evidence 
that the damage was not caused by structural deficiency of the mobile 
home and that it was not overloaded. Claims for damage to or loss of 
tires mounted on mobile homes may be allowed only in cases of collision, 
theft, or vandalism.
    (5) Money. Claims for money in an amount that is determined to be 
reasonable for the claimant to possess at the time of the loss are 
payable:
    (i) Where personal funds were accepted by responsible Government 
personnel with apparent authority to receive them for safekeeping 
deposit, transmittal, or other authorized disposition, but were neither 
applied as directed by the owner nor returned;
    (ii) When lost incident to a marine or aircraft disaster;
    (iii) When lost by fire, flood, hurricane, or other natural 
disaster;
    (iv) When stolen from the quarters of the claimant where it is 
conclusively shown that the money was in a locked container and that the 
quarters themselves were locked;
    (v) When taken by force from the claimant's person.
    (6) Clothing. Claims may be allowed for clothing and accessories 
worn on the person which are damaged or lost:
    (i) During the performance of official duties in an unusual or 
extraordinary-risk situation;
    (ii) In cases involving emergency action required by natural 
disaster such as fire, flood, hurricane, or by enemy or other 
belligerent action;
    (iii) In cases involving faulty equipment or defective furniture 
maintained by the Government and used by the claimant as required by the 
job situation; or
    (iv) When using a motor vehicle.
    (7) Property used for benefit of the Government. Claims may be 
allowed for damage to or loss of property (except motor vehicles) used 
for the benefit of the Government at the request of, or with the 
knowledge and consent of, superior authority or by reason of necessity.
    (8) Enemy action or public service. Claims may be allowed for damage 
to or loss of property as a direct consequence of:
    (i) Enemy action or threat thereof, or combat, guerilla, brigandage, 
or other belligerent activity, or unjust confiscation by a foreign power 
or its nationals;
    (ii) Action by the claimant to quiet a civil disturbance or to 
alleviate a public disaster; or
    (iii) Efforts by the claimant to save human life or Government 
property.
    (9) Marine or aircraft disaster. Claims may be allowed for personal 
property damaged or lost as a result of marine or aircraft disaster or 
accident.
    (10) Government property. Claims may be allowed for property owned 
by the United States only when the claimant is financially responsible 
to an agency of the Government other than OPM.
    (11) Borrowed property. Claims may be allowed for borrowed property 
that has been damaged or lost.



Sec.  180.105  Claims not allowed.

    (a) A claim is not allowable if:
    (1) The damage or loss was caused wholly or partly by the negligent 
or wrongful act of the claimant, claimant's agent, claimant's employee, 
or a member of claimant's family;
    (2) The damage or loss occurred in quarters occupied by the claimant 
within the 50 States and the District of Columbia that were not assigned 
to the claimant or otherwise provided in kind by the United States;
    (3) Possession of the property lost or damaged was not incident to 
service or

[[Page 43]]

not reasonable or proper under the circumstances.
    (b) In addition to claims falling within the categories of Sec.  
180.105(a), the following are examples of claims which are not payable:
    (1) Claims not incident to service. Claims which arose during the 
conduct of personal business are not payable.
    (2) Subrogation claims. Claims based upon payment or other 
consideration to a proper claimant are not payable.
    (3) Assigned claims. Claims based upon assignment of a claim by a 
proper claimant are not payable.
    (4) Conditional vendor claims. Claims asserted by or on behalf of a 
conditional vendor are not payable.
    (5) Claims by improper claimants. Claims by persons not designated 
in Sec.  180.102(a) are not payable.
    (6) Small items of substantial value. Claims are not payable for 
money or for small articles of substantial value, such as watches or 
expensive jewelry, when shipped with household goods or as unaccompanied 
baggage.
    (7) Articles of extraordinary value. Claims are not payable for 
expensive articles of gold, silver, other precious metals, paintings, 
antiques other than bulky furnishings, relics, and other articles of 
extraordinary value when shipped with household goods by ordinary means 
or as unaccompanied baggage at normal released valuation. Claims for 
such articles are payable when their loss is incident to shipment by 
expedited mode in accordance with current joint travel regulations. This 
prohibition does not apply to articles in the personal custody of the 
claimant or articles properly checked, provided that reasonable 
protection or security measures have been taken by the claimant.
    (8) Articles acquired for other persons. Claims are not payable for 
articles intended directly or indirectly for persons other than the 
claimant or members of the claimant's immediate household. This 
prohibition includes articles acquired at the request of others and 
articles for sale.
    (9) Property used for business. Claims are not payable for property 
normally used for business or profit.
    (10) Unserviceable property. Claims are not payable for wornout or 
unserviceable property.
    (11) Violation of law or directive. Claims are not payable for 
property acquired, possessed, or transported in violation of law, 
regulation, or other directive. This does not apply to limitations 
imposed on the weight of shipments of household goods.
    (12) Intangible property. Claims are not payable for intangible 
property such as bank books, checks, promissory notes, stock 
certificates, bonds, bills of lading, warehouse receipts, baggage 
checks, insurance policies, money order, and traveler's checks.
    (13) Government property. Claims are not payable for property owned 
by the United States unless the claimant is financially responsible for 
the property to an agency of the Government other than OPM.
    (14) Motor vehicles. Claims for motor vehicles, except as provided 
for by Sec.  180.104(c)(3), will ordinarily not be paid. However, in 
exceptional cases, meritorius claims for damage to or loss of motor 
vehicles may be recommended to the Office of the General Counsel for 
consideration and approval for payment.
    (15) Enemy property. Claims are not payable for enemy property, 
including war trophies.
    (16) Losses recoverable from carrier. Claims are not payable for 
losses, or any portion thereof, which have been recovered or are 
recoverable from a carrier, except as permitted under Sec.  180.106.
    (17) Losses recoverable from insurer. Claims are not payable for 
losses, or any portion thereof, which have been recovered or are 
recoverable from an insurer, except as permitted under Sec.  180.106.
    (18) Losses recoverable from contractor. Claims are not payable for 
losses, or any portion thereof, which have been recovered or are 
recoverable under contract, except as permitted under Sec.  180.106.
    (19) Fees for estimates. Claims are not normally payable for fees 
paid to obtain estimates of repair in conjuction with submitting a claim 
under this part. However, where, in the opinion of the approving 
authority, the claimant

[[Page 44]]

could not obtain an estimate without paying a fee, such a claim may be 
considered in an amount reasonable in relation to the value or the cost 
of repairs of the articles involved, provided that the evidence 
furnished clearly indicates that the amount of the fee paid will not be 
deducted from the cost of repairs if the work is accomplished by the 
estimator.
    (20) Items fraudulently claimed. Claims are not payable for items 
fraudulently claimed. When investigation discloses that a claimant, 
claimant's agent, claimant's employee, or member of claimant's family 
has intentionally misrepresented an item claimed as to cost, condition, 
cost to repair, etc., the item will be disallowed in its entirety even 
though some actual damage has been sustained. However, if the remainder 
of the claim is proper it will be paid. This does not preclude 
appropriate disciplinary action if warranted.



Sec.  180.106  Claims involving carriers and insurers.

    (a) Claimants must comply with the following before presenting 
claims involving a carrier or insurer:
    (1) Whenever property is damaged or lost while being shipped 
pursuant to authorized travel orders, the owner must file a written 
claim for reimbursement with the carrier according to the terms of its 
bill of lading or contract before submitting a claim against the 
Government. The claimant may present a claim to the Government 
immediately after making demand on the carrier.
    (2) Whenever property which is damaged or lost incident to the 
claimant's service is insured in whole or in part, the claimant must 
make a written demand against the insurer for reimbursement under the 
terms and conditions of the insurance coverage. Such demand should be 
made within the time limit provided in the policy and prior to the 
filing of a claim against the Government. The claimant may present a 
claim to the Government immediately after making demand on the insurer.
    (b) If the claimant fails to make the required demand on the carrier 
or insurer or make reasonable efforts to collect the amount recoverable, 
the amount payable under the provisions of these regulations shall be 
reduced by the maximum amount recoverable. However, no deduction will be 
made if the circumstances of the claimant's service were such as to 
preclude timely filing of the claim with the carrier or insurer and it 
is determined that a demand would have been impracticable or unavailing 
in any event.
    (c) When a claim is paid by OPM, the claimant will assign to the 
United States, to the extent of any payment on the claim accepted by 
claimant, all rights, title, and interest in any claim against any 
carrier, insurer, or other party arising out of the incident on which 
the claim against the United States is based. On request, the claimant 
also will furnish such evidence as may be required to enable the United 
States to enforce the claim.
    (d) After payment of a claim by the United States, if the claimant 
receives any payment from a carrier, contractor, insurer, or other third 
party, the claimant will pay the proceeds to the United States to the 
extent of the payment received by the claimant from the United States.



Sec.  180.107  Claims procedure.

    (a) Filing a claim. Claims not exceeding $500 shall be filed with 
the appropriate bureau or regional director. Claims in excess of $500 
shall be filed with the Office of the General Counsel, Office of 
Personnel Management, 1900 E Street NW., Washington, DC 20415. Claims 
shall be in writing, using G.C. Form 33 when available, and shall 
contain as a minimum:
    (1) Name, address, and place of employment of the claimant;
    (2) Place and date of the damage or loss;
    (3) A brief statement of the facts and circumstances surrounding the 
damage or loss;
    (4) Cost, date, and place of acquisition of each piece of property 
damaged or lost;
    (5) Two itemized repair estimates, or value estimates, whichever is 
applicable;
    (6) Copies of police reports, if applicable;

[[Page 45]]

    (7) A statement from the claimant's supervisor that the loss was 
incident to service;
    (8) A statement that the property was or was not insured;
    (9) With respect to claims involving thefts or losses in quarters or 
other places where the property was reasonably kept, a statement as to 
what security precautions were taken to protect the property involved;
    (10) With respect to claims involving property being used for the 
benefit of the Government, a statement by the claimant's supervisor that 
the claimant was required to provide such property or that the 
claimant's providing it was in the interest of the Government; and
    (11) Other evidence as may be required.
    (b) Single claim. A single claim shall be presented for all lost or 
damaged property resulting from the same incident. If this procedure 
causes a hardship, the claimant may present an initial claim with notice 
that it is a partial claim, an explanation of the circumstances causing 
the hardship, and an estimate of the balance of the claim and the date 
it will be submitted. Payment may be made on a partial claim if the 
approving authority determines that a genuine hardship exists.
    (c) Claims investigator. When a claim is filed, the appropriate 
associate or regional director, or the General Counsel, shall appoint a 
claims investigator to evaluate the claim and make a recommendation as 
to its disposition. Where the cost to repair damaged property does not 
exceed $100 per item and the claims investigator has inspected the 
damaged property, the claimant and the approving authority may agree 
upon a reasonable amount to be claimed for repair of an individual item 
in lieu of an independent estimate by a qualified repairman. In such a 
case, the claims investigator and the approving authority will certify 
that the property has been examined and that the amount claimed is a 
reasonable allowance for the cost of the repairs.
    (d) Loss in quarters. Claims for property loss in quarters or other 
authorized places should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Whether the quarters were assigned or provided in kind by the 
Government;
    (3) Whether the quarters are regularly occupied by the claimant;
    (4) Name of the authority, if any, who designated the place of 
storage of the property if other than quarters;
    (5) Measures taken to protect the property; and
    (6) Whether the claimant is a local inhabitant.
    (e) Loss by theft or robbery. Claims for property loss by theft or 
robbery should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Facts and circumstances surrounding the loss, including evidence 
of the crime such as breaking and entering, capture of the thief or 
robber, or recovery of part of the stolen goods; and
    (3) Evidence that the claimant exercised due care in protecting the 
property prior to the loss, including information as to the degree of 
care normally exercised in the locale of the loss due to any unusual 
risks involved.
    (f) Transportation losses. Claims for transportation losses should 
be accompanied by the following:
    (1) Copies of orders authorizing the travel, transportation, or 
shipment or a certificate explaining the absence of orders and stating 
their substance;
    (2) Statement in cases where property was turned over to a shipping 
officer, supply officer, or contract packer indicating:
    (i) Name (or designation) and address of the shipping officer, 
supply officer, or contract packer;
    (ii) Date the property was turned over;
    (iii) Inventoried condition when the property was turned over;
    (iv) When and where the property was packed and by whom;
    (v) Date of shipment;
    (vi) Copies of all bills of lading, inventories, and other 
applicable shipping documents;
    (vii) Date and place of delivery to the claimant;
    (viii) Date the property was unpacked by the carrier, claimant, or 
Government;

[[Page 46]]

    (ix) Statements of disinterested witnesses as to the condition of 
the property when received and delivered, or as to handling or storage;
    (x) Whether the negligence of any Government employee acting within 
the scope of his employment caused the damage or loss;
    (xi) Whether the last common carrier or local carrier was given a 
clear receipt, except for concealed damages;
    (xii) Total gross, tare, and net weight of shipment;
    (xiii) Insurance certificate or policy if losses are privately 
insured;
    (xiv) Copy of the demand on carrier or insured, or both, when 
required, and the reply, if any;
    (xv) Action taken by the claimant to locate missing baggage or 
household effects, including related correspondence.
    (g) Marine or aircraft disaster. Claims for property losses due to 
marine or aircraft disaster should be accompanied by a copy of orders or 
other evidence to establish the claimant's right to be, or to have 
property, on board.
    (h) Enemy action, public disaster, or public service. Claims for 
property losses due to enemy action, public disaster, or public service 
should be accompanied by:
    (1) Copies of orders or other evidence establishing the claimant's 
required presence in the area involved, and
    (2) A detailed statement of facts and circumstances showing an 
applicable case enumerated in Sec.  180.104(c)(8).
    (i) Property used for benefit of Government. Claims for property 
loss when the property was used for the benefit of the Government should 
be accompanied by:
    (1) A statement from the proper authority that the property was 
supplied by the claimant in the performance of official business at the 
request of, or with the knowledge and consent of, superior authority or 
by reason of necessity; and
    (2) If the property being used for the benefit of the Government was 
damaged or lost while not in use, evidence that the loss occurred in an 
authorized storage area.
    (j) Money. Claims for loss of money deposited for safekeeping, 
transmittal, or other authorized disposition, should be accompanied by:
    (1) Name, grade, and address of the person or persons who received 
the money and any others involved;
    (2) Name and designation of the authority who authorized such person 
or persons to accept personal funds, and the disposition required; and
    (3) Receipts and written sworn statements explaining the failure to 
account for funds or return them to the claimant.
    (k) Motor vehicles in transit. Claims for damage to motor vehicles 
in transit should be accompanied by a copy of orders or other available 
evidence to establish the claimant's lawful right to have the property 
shipped and evidence to establish damage in transit.

[43 FR 47163, Oct. 13, 1978, as amended at 44 FR 76747, Dec. 28, 1979]



Sec.  180.108  Settlement of claims.

    (a) Authority. Associate Directors and Regional Directors are 
authorized to settle and pay any claim not exceeding $500 and arising 
under this part. The General Counsel is authorized to settle and pay any 
claim not exceeding $15,000 and arising under this part. Unless 
cognizable under Sec.  180.104(c)(3), claims for damage to or loss of 
motor vehicles may be settled and paid only by the General Counsel.
    (b) Redelegation. The approving authorities may establish such 
procedures and make such redelegations as may be required to fulfill the 
objectives of this part.
    (c) Cost or value. The amount awarded on any item of property will 
not exceed the cost of the item (either the price paid in cash or 
property) or the value at the time of acquisition if not acquired by 
purchase or exchange. The amount payable will be determined by applying 
the principles of depreciation to the adjusted dollar value or other 
base price of property lost or damaged beyond economical repair; by 
allowing the cost of repairs when an item is economically repairable, 
provided the cost of repairs does not exceed the depreciated value of 
the item; and by deducting salvage value, if appropriate.
    (d) Depreciation. Depreciation in value of an item is determined by 
considering the type of article involved, its cost, condition when 
damaged beyond economical repair or lost, and the

[[Page 47]]

time elapsed between the date of acquisition and the date of damage or 
loss.
    (e) Appreciation. There will be no allowance for appreciation in the 
value of the property except that the cost of the item may be adjusted 
to reflect changes in the purchasing power of the dollar before 
depreciation is computed. Appreciation will not be allowed solely 
because the loss occurred or the claimant now resides in an area remote 
from the place of purchase of the property.
    (f) Expensive articles. Allowance for expensive items (including 
heirlooms and antiques) or for items purchased at unreasonably high 
prices will be based on the fair and reasonable purchase price for 
substitute articles of a similar nature.
    (g) Acquisition. Allowance for articles acquired by barter will not 
exceed the cost of the articles tendered in barter. No reimbursement 
will be made for articles acquired in black market or other prohibited 
activities.
    (h) Replacement. Replacement of damaged or lost property may be made 
in kind whenever appropriate.
    (i) Amount allowable. Subject to the limitations of Sec. Sec.  
180.108(c) through 180.108(h), the amount allowable in settlement of a 
claim is either:
    (1) The depreciated value immediately prior to damage or loss of 
property damaged beyond economical repair or lost, less any salvage 
value; or
    (2) The reasonable cost of repairs when property is economically 
repairable, provided that the cost of repairs does not exceed the 
depreciated value.
    (j) Notification. The approving authority shall notify the claimant 
in writing of the action taken on the claim and, if the claim is 
disapproved or only partially approved, the reasons therefor.
    (k) Carrier or insurer. In the event a claim submitted against a 
carrier or insurer under Sec.  180.106 had not been settled before 
settlement of a claim against the Government under this part, the 
approving authority shall notify such carrier or insurer to pay the 
proceeds of the claim to OPM to the extent OPM has made payment to the 
claimant.
    (l) Review. The action of the approving authority is final; however, 
the decision may be reconsidered if the claimant so requests and submits 
a written explanation why reconsideration is appropriate.
    (m) Attorney's fees. No more than 10 per centum of the amount paid 
in settlement of each individual claim submitted and settled under this 
subpart shall be paid or delivered to or received by any agent or 
attorney on account of services rendered in connection with that claim 
and the same shall be unlawful, any contract to the contrary 
notwithstanding. Any person violating this or any other provision of 
sections 240 to 243 of title 31, United States Code, shall be deemed 
guilty of a misdemeanor and upon conviction thereof shall be fined in 
any sum not exceeding $1000.

[43 FR 47163, Oct. 13, 1978, as amended at 44 FR 76747, Dec. 28, 1979]



PART 185_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
185.101 Purpose.
185.102 Definitions.
185.103 Basis for civil penalties and assessments.
185.104 Investigation.
185.105 Review by the reviewing official.
185.106 Prerequisites for issuing a complaint.
185.107 Complaint.
185.108 Service of complaint.
185.109 Answer.
185.110 Default upon failure to file an answer.
185.111 Referral of complaint and answer to the ALJ.
185.112 Notice of hearing.
185.113 Location of hearing.
185.114 Parties to the hearing.
185.115 Separation of functions.
185.116 Ex parte contacts.
185.117 Disqualification of reviewing official or ALJ.
185.118 Rights of parties.
185.119 Authority of the ALJ.
185.120 Prehearing conferences.
185.121 Disclosure of documents.
185.122 Discovery.
185.123 Exchange of witness lists, statements and exhibits.
185.124 Subpoenas for attendance at hearing.
185.125 Protective order.
185.126 Evidence.
185.127 Fees.
185.128 Form, filing and service of papers.
185.129 Computation of time.
185.130 Motions.
185.131 Sanctions.

[[Page 48]]

185.132 The hearing and burden of proof.
185.133 Determining the amount of penalties and assessments.
185.134 Witnesses.
185.135 The record.
185.136 Post-hearing briefs.
185.137 Initial decision.
185.138 Reconsideration of initial decision.
185.139 Appeal to authority head.
185.140 Stays ordered by the Department of Justice.
185.141 Stay pending appeal.
185.142 Judicial review.
185.143 Collection of civil penalties and assessments.
185.144 Right to administrative offset.
185.145 Deposit in Treasury of the United States.
185.146 Compromise or settlement.
185.147 Limitations.

    Authority: 31 U.S.C. 3801-3812.

    Source: 60 FR 7891, Feb. 10, 1995, unless otherwise noted.



Sec.  185.101  Purpose.

    This subpart implements the Program Fraud Civil Remedies Act of 
1986, Public Law 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986), 
codified at 31 U.S.C. 3801-3812. Section 3809 requires each authority 
head to promulgate regulations necessary to implement the provisions of 
the statute. The subpart establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents, and specifies the hearing and appeal rights of persons 
subject to allegations of liability for such penalties and assessments. 
The moneys collected as a result of these procedures are deposited as 
miscellaneous receipts in the Treasury of the United States.



Sec.  185.102  Definitions.

    For the purposes of this part--
    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Office of Personnel Management (OPM).
    Authority head means the Director of the Office of Personnel 
Management or the Director's designee.
    Benefit is very broad, and is intended to cover anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing benefits, grants, loans or insurance);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority:
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States:
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec.  185.107.
    Defendant means any person alleged in a complaint under Sec.  
185.107 to be liable for a civil penalty or assessment under Sec.  
185.103.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec.  185.110 or Sec.  185.137, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating Official means the Inspector General or the Inspector 
General's designee.
    Knows or has reason to know means that a person, with respect to a 
claim or statement:

[[Page 49]]

    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes shall include the terms presents, submits, and causes to be 
made, presented, or submitted. As the context requires, making or made, 
shall likewise include the corresponding forms of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is in good standing of the bar 
of any State, Territory, or possession of the United States or of the 
District of Columbia or the Commonwealth of Puerto Rico or other 
individual designated in writing by the defendant.
    Reviewing Official means the General Counsel of OPM or the General 
Counsel's designee. For the purposes of Sec.  185.105 of these rules, 
the General Counsel personally, or members of the General Counsel's 
immediate staff, shall perform the functions of the reviewing official 
provided that such person or persons serve in a position for which the 
rate of basic pay is not less than the minimum rate payable under 
section 5376 of title 5 of the United States Code. All other functions 
of the reviewing official, including administrative prosecution under 
these rules, shall be performed on behalf of the General Counsel by 
members of the Office of the General Counsel.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made:
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for):
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from, the authority, or any State, 
political subdivision of a State, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or benefit, or if the Government will 
reimburse such State, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
benefit.



Sec.  185.103  Basis for civil penalties and assessments.

    (a) In addition to any other remedy that may be prescribed by law, 
any person shall be subject to a civil penalty of not more than $5,000, 
where the person makes a claim and knows or has reason to know that the 
claim:
    (1) In false, fictitious, or fraudulent;
    (2) Includes, or is supported by, any written statement which 
asserts a material fact which is false, fictitious, or fraudulent;
    (3) Includes, or is supported by, any written statement that:
    (i) Omits a material fact;
    (ii) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (iii) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (4) Is for payment for the provision of property or services which 
the person has not provided as claimed.
    (b) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (c) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (d) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (e) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section may also be subject to an 
assessment of not more than twice the amount of such claim or that 
portion thereof that is

[[Page 50]]

determined to be in violation of paragraph (a)(1) of this section. Such 
assessment shall be in lieu of damages sustained by the Government 
because of such claim.
    (f) Any person who makes a written statement that:
    (1) The person knows or has reason to know:
    (i) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (ii) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (2) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement may be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (g) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (h) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (i) No proof of specific intent to defraud is required to establish 
liability under this section.
    (j) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (k) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec.  185.104  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted, he or she 
may issue a subpoena.
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official, or the person designated to receive the 
documents, a certification that
    (i) The documents sought have been produced;
    (ii) Such documents are not available and the reasons therefor; or
    (iii) Such documents, suitably identified, have been withheld based 
upon the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the reviewing official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec.  185.105  Review by the reviewing official.

    If, based on the report of the investigating official under Sec.  
185.104(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec.  185.103, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to have a complaint issued 
under Sec.  185.107. Such notice shall include:
    (a) A statement of the reviewing official's reasons for issuing a 
complaint;
    (b) A statement specifying the evidence that supports the 
allegations of liability;

[[Page 51]]

    (c) A description of the claims or statements upon which the 
allegations of liability are based;
    (d) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of Sec.  
185.103;
    (e) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (f) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec.  185.106  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec.  185.107 
only if:
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in section 3803(b)(1) of title 31 of 
the United States Code, and
    (2) In the case of allegations of liability under Sec.  185.103(a) 
with respect to a claim, the reviewing official determines that, with 
respect to such claim or a group of related claims submitted at the same 
time such claim is submitted (as defined in paragraph (b) of this 
section), the amount of money, or the value of property or services, 
demanded or requested in violation of Sec.  185.103(a) does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person, claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  185.107  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with section 3803(b)(1) of title 
31 of the United States Code, the reviewing official may serve a 
complaint on the defendant, as provided in Sec.  185.108.
    (b) The complaint shall state the following:
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer, including a specific 
statement of the defendant's right to request a hearing and to be 
represented by a representative; and
    (4) The fact that failure to file an answer within 30 days of 
service of the complaint will result in the imposition of the maximum 
amount of penalties and assessments without right to appeal, as provided 
in Sec.  185.110.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec.  185.108  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4 of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by:
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec.  185.109  Answer.

    (a) The defendant may request a hearing in the answer filed with the 
reviewing official within 30 days of service of the complaint.
    (b) In the answer, the defendant:

[[Page 52]]

    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec.  
185.110. For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section. The ALJ shall decide expeditiously 
whether the dependent shall be granted an additional period of time to 
file such answer.



Sec.  185.110  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec.  185.109(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on the defendant in the manner prescribed in Sec.  185.108, a notice 
that an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec.  185.103, the ALJ 
shall issue an initial decision imposing the maximum amount of penalties 
and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  185.138.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision

[[Page 53]]

of the ALJ, which shall become final and binding upon the parties 30 
days after the authority head issues such decision.



Sec.  185.111  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec.  185.112  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec.  185.108. At the same time, the ALJ shall send a copy 
of such notice to the reviewing official or his or her designee.
    (b) Such notice shall include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  185.113  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the parties and the 
ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec.  185.114  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and OPM.
    (b) Except where the authority head designates another, OPM shall be 
represented by the members of the Office of the General Counsel.
    (c) Pursuant to section 3730(c)(5) of title 31, United States Code, 
a private plaintiff under the False Claims Act may participate in these 
proceedings to the extent authorized by the provisions of that Act.



Sec.  185.115  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under section 
3806 of title 31, United States Code.
    (b) The ALJ shall not be responsible to or subject to the 
supervision or direction of the investigating official or the reviewing 
official.



Sec.  185.116  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec.  185.117  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.

[[Page 54]]

    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with this section.
    (1) If the ALJ determines that a reviewing official is disqualified, 
the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec.  185.118  Rights of parties.

    Except as otherwise limited by this part, all parties may:
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery as provided under Sec.  185.122;
    (d) Agree to stipulations of fact or law, which shall be made a part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec.  185.119  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec.  185.120  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;

[[Page 55]]

    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec.  185.121  Disclosure of documents.

    (a) Upon written request to the reviewing official, generally prior 
to the filing of an answer, the defendant may review any relevant and 
material documents, transcripts, records, and other materials that 
relate to the allegations set out in the complaint and upon which the 
findings and conclusions of the investigating official under Sec.  
185.104(b) are based, unless such documents are subject to a privilege 
under Federal law. Upon payment of fees for duplication, the defendant 
may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant, 
may also obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  185.105 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec.  185.109.



Sec.  185.122  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec.  185.123, the term 
documents includes information, documents, reports, answers, records, 
accounts, papers, and other data and documentary evidence. Nothing 
contained herein shall be interpreted to require the creation of a 
document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery are to be handled according to the 
following procedures:
    (1) A party seeking discovery may file a motion with the ALJ. Such a 
motion shall be accompanied by a copy of the requested discovery, or in 
the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within 10 days of service, a party may file an opposition to the 
motion and/or a motion for protective order as provided in Sec.  
185.125.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.

[[Page 56]]

    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  185.125.
    (e) Depositions are to be handled in the following manner:
    (1) If a motion for deposition is granted, the ALJ shall issue a 
subpoena for the deponent, which may require the deponent to produce 
documents. The subpoena shall specify the time and place at which the 
deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec.  185.108.
    (3) The deponent may file with the ALJ within 10 days of service a 
motion to quash the subpoena or a motion for a protective order.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec.  185.123  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec.  185.133(b). At the time the above documents are exchanged, any 
party that intends to rely on the transcript or deposition testimony in 
lieu of live testimony at the hearing, if permitted by the ALJ, shall 
provide each party with a copy of the specific pages of the transcript 
it intends to introduce into evidence.
    (b) If a party objects, the ALJ may not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec.  185.124  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ upon a showing of good cause. Such request 
shall specify any documents to be produced and shall designate the 
witnesses and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec.  185.108. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within 10 days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than 10 days after service.



Sec.  185.125  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions,

[[Page 57]]

including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be the subject of inquiry, or that the 
scope of discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a sealed deposition be opened only by order of the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec.  185.126  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g. to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  185.125.



Sec.  185.127  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec.  185.128  Form, filing and service of papers.

    (a) Form. Documents filed with the ALJ shall include an original and 
two copies. Every pleading and paper filed in the proceeding shall 
contain a caption setting forth the title of the action, the case number 
assigned by the ALJ, and a designation of the paper (e.g., motion to 
quash subpoena). Every pleading and paper shall be signed by, and shall 
contain the address and telephone number of the party or the person on 
whose behalf the paper was filed, or his or her representative.
    (b) Filing. Papers are considered filed when they are mailed. Date 
of mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (c) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec.  185.108 shall be made by delivering a copy 
or by placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (d) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.

[[Page 58]]



Sec.  185.129  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than 7 days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional 5 days will be added to the time permitted for any 
response.



Sec.  185.130  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose or all 
outstanding motions prior to the beginning of the hearing.



Sec.  185.131  Sanctions.

    (a) The ALJ may sanction a person including any party or 
representative for the following reasons:
    (1) Failure to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failure to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the proceeding.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec.  185.132  The hearing and burden of proof.

    (a) Where requested in accordance with Sec.  185.109 the ALJ shall 
conduct a hearing on the record in order to determine whether the 
defendant is liable for a civil penalty or assessment under Sec.  
185.103 and, if so, the appropriate amount of any such civil penalty or 
assessment considering any aggravating or mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.

[[Page 59]]

    (d) The hearing shall be open to the public unless otherwise closed 
by the ALJ for good cause shown.



Sec.  185.133  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, double damages and a 
significant civil penalty ordinarily should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint;
    (1) The number of false, fictitious or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon public 
confidence in the management of Government programs and operations;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly;
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct; and
    (17) The potential impact of the misconduct on the rights of others.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec.  185.134  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all others parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec.  
185.123(a).

[[Page 60]]

    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to--
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceedings without regard to the scope of his 
or her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of the following:
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec.  185.135  The record.

    (a) The hearing shall be recorded and transcribed. Transcripts may 
be obtained following the hearing from the ALJ at a cost not to exceed 
the actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  185.125.



Sec.  185.136  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec.  185.137  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec.  185.103.
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec.  185.133.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
authority head. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding

[[Page 61]]

on the parties 30 days after it is issued by the ALJ.



Sec.  185.138  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be 5 days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on all parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec.  185.139.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec.  
185.139.



Sec.  185.139  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (1) A notice of appeal may be filed at any time within 30 days after 
the ALJ issues an initial decision. However, if another party files a 
motion for reconsideration under Sec.  185.138, consideration of the 
appeal shall be stayed automatically pending resolution of the motion 
for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal shall be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (b) If the defendant files a timely notice of appeal with the 
authority head and the time for filing motions for reconsideration under 
Sec.  185.138 has expired, the ALJ shall forward the record of the 
proceeding to the authority head.
    (c) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (d) The representative for OPM may file a brief in opposition to 
exceptions within 30 days of receiving the notice of appeal and 
accompanying brief.
    (e) There is no right to appear personally before the authority 
head.
    (f) There is no right to appeal an interlocutory ruling by the ALJ.
    (g) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless the 
objecting party can demonstrate extraordinary circumstances causing the 
failure to raise the objection.
    (h) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (i) The authority head may affirm, reduce, reverse, compromise, 
remand or settle any penalty or assessment determined by the ALJ in any 
initial decision.

[[Page 62]]

    (j) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (k) Unless a petition for review is filed as provided in section 
3805 of title 31, United States Code, after a defendant has exhausted 
all administrative remedies under this part and within 60 days after the 
date on which the authority head serves the defendant with a copy of the 
authority head's decision, a determination that a defendant is liable 
under Sec.  185.103 is final and not subject to judicial review.

[60 FR 7891, Feb. 10, 1995; 60 FR 22249, May 5, 1995]



Sec.  185.140  Stays ordered by the Department of Justice.

    If, at any time, the Attorney General or an Assistant Attorney 
General designated by the Attorney General transmits to the authority 
head a written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General 
or of the Assistant Attorney General who ordered the stay.



Sec.  185.141  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec.  185.142  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties and/or assessments 
under this part and specifies the procedures for such review.



Sec.  185.143  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec.  185.144  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec.  185.142 or Sec.  
185.143, or any amount agreed upon in a compromise or settlement under 
Sec.  185.146, may be collected by administrative offset under section 
3716 of title 31, United States Code, except that an administrative 
offset may not be made under section 3716 against a refund of an 
overpayment of Federal taxes, then or later owing by the United States 
to the defendant.



Sec.  185.145  Deposit in Treasury of the United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in section 3806(g) of title 31, United States Code.



Sec.  185.146  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec.  185.142 or during the pendency of any action to collect 
penalties and assessments under Sec.  185.143.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  185.142 or of

[[Page 63]]

any action to recover penalties and assessments under section 3806 to 
title 31, United States Code.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec.  185.147  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec.  185.108 within 6 years after 
the date on which such a claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec.  185.110(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) the statute of limitations may be executed by written agreement 
of the parties.



PART 210_BASIC CONCEPTS AND DEFINITIONS (GENERAL)--Table of Contents




           Subpart A_Applicability of Regulations; Definitions

Sec.
210.101 Applicability of various parts of regulations.
210.102 Definitions.

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp. p. 218.



           Subpart A_Applicability of Regulations; Definitions



Sec.  210.101  Applicability of various parts of regulations.

    (a) General. In most parts, the applicability of the part is stated 
specifically in the part or is otherwise apparent from the substance of 
the part.
    (b) Parts 315 through 339. Parts 315 through 339 of this chapter 
apply to all positions in the competitive service and to all incumbents 
of those positions; and, except as specified by or in an individual 
part, these parts do not apply to positions in the excepted service or 
to incumbents of those positions.

[33 FR 12407, Sept. 4, 1968, as amended at 44 FR 45587, Aug. 3, 1979]



Sec.  210.102  Definitions.

    (a) The definitions in paragraph (b) of this section apply 
throughout this chapter, except when a defined term is specifically 
modified in or specifically defined for the purpose of a particular 
part.
    (b) In this chapter:
    (1) Appointing officer means a person having power by law, or by 
lawfully delegated authority, to make appointments to positions in the 
service of the Federal Government or the government of the District of 
Columbia.
    (2) OPM means the Office of Personnel Management.
    (3) Days, unless otherwise defined or limited, means calendar days 
and not workdays. In computing a period of time prescribed in this 
chapter, the day of the action or event after which the designated 
period of time begins to run is not to be included. The last day of the 
period so computed is to be included unless it is a Saturday, a Sunday, 
or a legal holiday in which event the period runs until the end of the 
next day which is neither a Saturday, a Sunday, nor a legal holiday.
    (4) Demotion means a change of an employee, while serving 
continuously within the same agency:
    (i) To a lower grade when both the old and the new positions are 
under the General Schedule or under the same type graded wage schedule; 
or
    (ii) To a position with a lower rate of pay when both the old and 
the new positions are under the same type ungraded wage schedule, or are 
in different pay method categories.
    (5) Eligible means an applicant who meets the minimum requirements 
for entrance to an examination and is rated 70 or more in the 
examination by OPM.
    (6) Employee means a civilian officer or employee.
    (7) Metropolitan area of Washington, DC., means the District of 
Columbia; Alexandria, Fairfax, and Falls Church Cities, Va.; Arlington, 
Fairfax, Loudoun, and Prince William Counties,

[[Page 64]]

Va.; and Charles, Montgomery, and Prince Georges Counties, Md.
    (8) Noncompetitive action means a promotion, demotion, reassignment, 
transfer, reinstatement, or an appointment based on prior service.
    (9) Overseas means outside the continental United States, but does 
not include Alaska, Guam, Hawaii, the Isthmus of Panama, Puerto Rico, or 
the Virgin Islands.
    (10) Position change means a promotion, demotion, or reassignment.
    (11) Promotion means a change of an employee, while serving 
continuously within the same agency:
    (i) To a higher grade when both the old and the new positions are 
under the General Schedule or under the same type graded wage schedule; 
or
    (ii) To a position with a higher rate of pay when both the old and 
the new positions are under the same type ungraded wage schedule, or are 
in different pay method categories.
    (12) Reassignment means a change of an employee, while serving 
continuously within the same agency, from one position to another 
without promotion or demotion.
    (13) Reemployed annuitant means an employee whose annuity under 
subchapter III of chapter 83 of title 5, United States Code, was 
continued on reemployment in an appointive position on or after October 
1, 1956.
    (14) Register means a list of qualified applicants compiled in order 
of relative standing for certification.
    (15) Reinstatement means the noncompetitive reemployment for service 
as a career or career-conditional employee of a person formerly employed 
in the competitive service who had a competitive status or was serving 
probation when he was separated from the service.
    (16) Status quo employee means an employee who failed to acquire a 
competitive status when the position in which he was serving was placed 
in the competitive service by a statute, Executive order, or Civil 
Service rule, which permitted his retention without the acquisition of 
status.
    (17) Tenure means the period of time an employee may reasonably 
expect to serve under his current appointment. It is granted and 
governed by the type of appointment under which an employee is currently 
serving without regard to whether he has a competitive status or whether 
his appointment is in a competitive position or in an excepted position.
    (18) Transfer means a change of an employee, without a break in 
service of 1 full workday, from a position in one agency to a position 
in another agency.

[33 FR 12407, Sept. 4, 1968, as amended at 34 FR 19495, Dec. 10, 1969; 
38 FR 22535, Aug. 22, 1973]



PART 211_VETERAN PREFERENCE--Table of Contents




Sec.
211.101 Purpose.
211.102 Definitions.
211.103 Administration of preference.

    Authority: 5 U.S.C. 1302.

    Source: 60 FR 3056, Jan. 13, 1995, unless otherwise noted.



Sec.  211.101  Purpose.

    The purpose of this part is to define veterans' preference and the 
administration of preference in Federal employment. (5 U.S.C. 2108)



Sec.  211.102  Definitions.

    For purposes of preference in Federal employment the following 
definitions apply:
    (a) Veteran means a person who has been discharged or released from 
active duty in the armed forces under honorable conditions performed--
    (1) In a war; or,
    (2) In a campaign or expedition for which a campaign badge has been 
authorized; or
    (3) During the period beginning April 28, 1952, and ending July 1, 
1955; or
    (4) For more than 180 consecutive days, other than for training, any 
part of which occurred during the period beginning February 1, 1955, and 
ending October 14, 1976; or
    (5) During the period beginning August 2, 1990, and ending January 
2, 1992; or
    (6) For more than 180 consecutive days, other than for training, any 
part of which occurred during the period beginning September 11, 2001, 
and ending on the date prescribed by Presidential

[[Page 65]]

proclamation or by law as the last day of Operation Iraqi Freedom.
    (b) Disabled Veteran means a person who has been discharged or 
released from active duty in the armed forces under honorable conditions 
performed at any time and who has established the present existence of a 
service-connected disability or is receiving compensation, disability 
retirement benefits, or pension because of a statute administered by the 
Department of Veterans Affairs or a military department.
    (c) Preference eligible means veterans, spouses, widows, or mothers 
who meet the definition of ``preference eligible'' in 5 U.S.C. 2108. 
Preference eligibles are entitled to have 5 or 10 points added to their 
earned score on a civil service examination (see 5 U.S.C. 3309). They 
are also accorded a higher retention standing in the event of a 
reduction in force (see 5 U.S.C. 3502). Preference does not apply, 
however, to inservice placement actions such as promotions.
    (d) Armed forces means the United States Army, Navy, Air Force, 
Marine Corps, and Coast Guard.
    (e) Uniformed services means the armed forces, the commissioned 
corps of the Public Health Service, and the commissioned corps of the 
National Oceanic and Atmospheric Administration.
    (f) Active duty or military duty--(1) Active duty or active military 
duty for a veteran defined in paragraph (a) of this section means full-
time duty with military pay and allowances in the armed forces, except 
for training or for determining physical fitness and except for service 
in the Reserves or National Guard.
    (2) Active duty or active military duty for a disabled veteran 
defined in paragraph (b) of this section means active duty with military 
pay and allowances in the armed forces, including training or for 
determining physical fitness and including service in the Reserves or 
National Guard.
    (g) Discharged or released from active duty means with either an 
honorable or general discharge from active duty in the armed forces. The 
Department of Defense is responsible for administering and defining 
military discharges.

[60 FR 3056, Jan. 13, 1995; 60 FR 6595, Feb. 2, 1995, as amended at 71 
FR 33376, June 9, 2006; 72 FR 41215, July 27, 2007]



Sec.  211.103  Administration of preference.

    Agencies are responsible for making all preference determinations 
except for preference based on a common law marriage. Such a claim 
should be referred to OPM's General Counsel for decision.



PART 212_COMPETITIVE SERVICE AND COMPETITIVE STATUS--Table of Contents




                      Subpart A_Competitive Service

Sec.
212.101 Definitions.
212.102 Authority to make determinations.

Subpart B [Reserved]

                      Subpart C_Competitive Status

212.301 Competitive status defined.

           Subpart D_Effect of Competitive Status on Position

212.401 Effect of competitive status on position.

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218.

    Source: 33 FR 12408, Sept. 4, 1968, unless otherwise noted.



                      Subpart A_Competitive Service



Sec.  212.101  Definitions.

    In this chapter:
    (a) Competitive service has the meaning given that term by section 
2102 of title 5, United States Code, and includes:
    (1) All civilian positions in the executive branch of the Federal 
Government not specifically excepted from the civil service laws by or 
pursuant to statute, by the President, or by the Office of Personnel 
Management, and not in the Senior Executive Service; and
    (2) All positions in the legislative and judicial branches of the 
Federal Government and in the government of the District of Columbia 
specifically made subject to the civil service laws by statute.

[[Page 66]]

    (b) Competitive position means a position in the competitive 
service.

(5 U.S.C. 2102)

[33 FR 12408, Sept. 4, 1968, as amended at 45 FR 62413, Sept. 19, 1980]



Sec.  212.102  Authority to make determinations.

    OPM determines finally whether a position is in the competitive 
service.

Subpart B [Reserved]



                      Subpart C_Competitive Status



Sec.  212.301  Competitive status defined.

    In this chapter, competitive status means an individual's basic 
eligibility for noncompetitive assignment to a competitive position. 
Competitive status is acquired by completion of a probationary period 
under a career-conditional or career appointment, or under a career 
executive assignment in the former executive assignment system, 
following open competitive examination, or by statute, Executive order, 
or the Civil Service rules, without open competitive examination. An 
individual with competitive status may be, without open competitive 
examination, reinstated, transferred, promoted, reassigned, or demoted, 
subject to conditions prescribed by the Civil Service rules and 
regulations.

[33 FR 12408, Sept. 4, 1968, as amended at 57 FR 10123, Mar. 24, 1992]



           Subpart D_Effect of Competitive Status on Position



Sec.  212.401  Effect of competitive status on position.

    (a) An employee is in the competitive service when he has 
competitive status and is in a competitive position under a nontemporary 
appointment.
    (b) An employee in the competitive service at the time his position 
is first listed under Schedule A, B, or C remains in the competitive 
service while he occupies that position.



PART 213_EXCEPTED SERVICE--Table of Contents




                      Subpart A_General Provisions

Sec.
213.101 Definitions.
213.102 Identification of positions in Schedule A, B, or C.
213.103 Publication of excepted appointing authorities in Schedules A, 
          B, and C.
213.104 Special provisions for temporary, intermittent, or seasonal 
          appointments in Schedule A, B, or C.

Subpart B [Reserved]

                      Subpart C_Excepted Schedules

                               Schedule A

213.3101 Positions other than those of a confidential or policy-
          determining character for which it is impracticable to 
          examine.
213.3102 Entire executive civil service.
213.3199 Temporary organizations.

                               Schedule B

213.3201 Positions other than those of a confidential or policy-
          determining character for which it is not practicable to hold 
          a competitive examination.
213.3202 Entire executive civil service.

                               Schedule C

213.3301 Positions of a confidential or policy-determining nature.
213.3302 Temporary transitional Schedule C positions.

    Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 
Comp., p. 218.
    Sec. 213.101 also issued under 5 U.S.C. 2103.
    Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), 
and 8456; E.O. 13318, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 
4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; and E.O. 13162.

    Source: 46 FR 20147, Apr. 3, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  213.101  Definitions.

    In this chapter:
    (a) Excepted service has the meaning given that term by section 2103 
of title 5, United States Code, and includes all positions in the 
executive branch of the Federal Government which are specifically 
excepted from the competitive service by or pursuant to statute, by the 
President, or by the Office of Personnel Management, and which are not 
in the Senior Executive Service.

[[Page 67]]

    (b) Excepted position means a position in the excepted service.

(5 U.S.C. 2103)



Sec.  213.102  Identification of positions in Schedule A, B, or C.

    (a) The Office of Personnel Management will decide whether the 
duties and requirements of any particular position justify exception 
from the competitive service. Upon favorable determination, OPM will 
authorize the position to be filled by excepted appointment under 
Schedule A, B, or C. Unless otherwise specified in a particular 
appointing authority, an agency may make Schedule A, B, or C 
appointments on either a permanent or nonpermanent basis, with any 
appropriate work schedule (i.e., full-time, part-time, seasonal, on-
call, or intermittent).
    (b) When OPM establishes eligibility requirements (e.g., residence, 
family income) for appointment under particular Schedule A or B 
exceptions, an individual's eligibility for appointment must be 
determined before appointment and without regard to any conditions that 
will result from the appointment.

[59 FR 46897, Sept. 13, 1994]



Sec.  213.103  Publication of excepted appointing authorities in Schedules A, B, and C.

    (a) Schedule A, B, and C appointing authorities available for use by 
all agencies shall be published as regulations in the Federal Register 
and the Code of Federal Regulations.
    (b) Establishment and revocation of Schedule A, B, and C appointing 
authorities applicable to a single agency shall be published monthly in 
the Notices section of the Federal Register.
    (c) A consolidated listing of all Schedule A, B, and C authorities 
current as of June 30 of each year, with assigned authority numbers, 
shall be published annually as a notice in the Federal Register.

[47 FR 28902, July 2, 1982, as amended at 62 FR 18505, Apr. 16, 1997]



Sec.  213.104  Special provisions for temporary, intermittent, or seasonal appointments in Schedule A, B, or C.

    (a) When OPM specifies that appointments under a particular Schedule 
A, B, or C authority must be temporary, intermittent, or seasonal, or 
when agencies elect to make temporary, intermittent, or seasonal 
appointments in Schedule A, B, or C, those terms have the following 
meanings:
    (1) Temporary appointments, unless otherwise specified in a 
particular Schedule A, B, or C exception, are made for a specified 
period not to exceed 1 year and are subject to the time limits in 
paragraph (b) of this section. Time-limited appointments made for more 
than 1 year are not considered to be temporary appointments, and are not 
subject to these time limits.
    (2) Intermittent positions are positions in which work recurs at 
sporadic or irregular intervals so that an employee's tour of duty 
cannot be scheduled in advance of the administrative workweek.
    (3) Seasonal positions involve annually recurring periods of 
employment lasting less than 12 months each year.
    (b) Temporary appointments, as defined in paragraph (a)(1) of this 
section, are subject to the following limits:
    (1) Service limits. Agencies may make temporary appointments for a 
period not to exceed 1 year, unless the applicable Schedule A, B, or C 
authority specifies a shorter period. Except as provided in paragraph 
(b)(3) of this section, agencies may extend temporary appointments for 
no more than 1 additional year (24 months of total service). Appointment 
to a successor position (i.e., a position that replaces and absorbs the 
original position) is considered to be an extension of the original 
appointment. Appointment to a position involving the same basic duties, 
in the same major subdivision of the agency, and in the same local 
commuting area is also considered to be an extension of the original 
appointment.
    (2) Restrictions on refilling positions under temporary 
appointments. Except as provided in paragraph (b)(3) of this section, an 
agency may not fill any position (or its successor) by a temporary 
appointment in Schedule A, B, or C if that position had previously been 
filled

[[Page 68]]

by temporary appointment(s) in either the competitive or excepted 
service for an aggregate of 2 years, or 24 months, within the preceding 
3-year period. This limitation does not apply to programs established to 
provide for systematic exchange between a Federal agency and nonfederal 
organizations.
    (3) Exceptions to the general limits. The service limits and 
restrictions on refilling positions set out in this section do not apply 
when:
    (i) Positions involve intermittent or seasonal work, and employment 
in the same or a successor position under one or more appointing 
authorities totals less than 6 months (1,040 hours), excluding overtime, 
in a service year. The service year is the calendar year that begins on 
the date of the employee's initial appointment in the agency. Should 
employment in a position filled under this exception total 6 months or 
more in any service year, the general limits set out in this section 
will apply to subsequent extension or reappointment unless OPM approves 
continued exception under this section. An individual may be employed 
for training for up to 120 days following initial appointment and up to 
2 weeks a year thereafter without regard to the service year limitation.
    (ii) Positions are filled under an authority established for the 
purpose of enabling the appointees to continue or enhance their 
education, or to meet academic or professional qualification 
requirements. These include the authorities set out in paragraphs (r) 
and (s) of Sec.  213.3102 and paragraph (a) of Sec.  213.3202, and 
authorities granted to individual agencies for use in connection with 
internship, fellowship, residency, or student programs.
    (iii) OPM approves extension of specific temporary appointments 
beyond 2 years (24 months total service) when necessitated by major 
reorganizations or base closings or other rare and unusual 
circumstances. Requests based on major reorganization, base closing, 
restructuring, or other unusual circumstances that apply agencywide must 
be made by an official at the headquarters level of the Department or 
agency. Requests involving extension of appointments to a specific 
position or project based on other unusual circumstances may be 
submitted by the employing office to the appropriate OPM service center.

[59 FR 46897, Sept. 13, 1994, as amended at 59 FR 64841, Dec. 16, 1994; 
62 FR 18505, Apr. 16, 1997; 62 FR 55725, Oct. 28, 1997; 62 FR 63628, 
Dec. 2, 1997]

Subpart B [Reserved]



                      Subpart C_Excepted Schedules

                               Schedule A



Sec.  213.3101  Positions other than those of a confidential or policy-determining character for which it is impracticable to examine.

    Upon specific authorization by OPM, agencies may make appointments 
under this section to positions which are not of a confidential or 
policy-determining character, and which are not in the Senior Executive 
Service, for which it is not practicable to examine. Examining for this 
purpose means application of the qualification standards and 
requirements established for the competitive service. Positions filled 
under this authority are excepted from the competitive service and 
constitute Schedule A. For each authorization under this section, OPM 
shall assign an identifying number from 213.3102 through 213.3199 to be 
used by the appointing agency in recording appointments made under that 
authorization.

[46 FR 20147, Apr. 3, 1981, as amended at 46 FR 45323, Sept. 11, 1981, 
59 FR 64841, Dec. 16, 1994; 62 FR 19900, Apr. 24, 1997]



Sec.  213.3102  Entire executive civil service.

    (a) Positions of Chaplain and Chaplain's Assistant.
    (b) [Reserved]
    (c) Positions to which appointments are made by the President 
without confirmation by the Senate.
    (d) Attorneys.
    (e) Law clerk trainee positions. Appointments under this paragraph 
shall be confined to graduates of recognized law schools or persons 
having equivalent experience and shall be for periods not to exceed 14 
months pending admission to the bar. No person shall be given more than 
one appointment

[[Page 69]]

under this paragraph. However, an appointment which was initially made 
for less than 14 months may be extended for not to exceed 14 months in 
total duration.
    (f)-(h) [Reserved]
    (i) Temporary and less-than-full time positions for which examining 
is impracticable. These are:
    (1) Positions in remote/isolated locations where examination is 
impracticable. A remote/isolated location is outside the local commuting 
area of a population center from which an employee can reasonably be 
expected to travel on short notice under adverse weather and/or road 
conditions which are normal for the area. For this purpose, a population 
center is a town with housing, schools, health care, stores and other 
businesses in which the servicing examining office can schedule tests 
and/or reasonably expect to attract applicants. An individual appointed 
under this authority may not be employed in the same agency under a 
combination of this and any other appointment to positions involving 
related duties and requiring the same qualifications for more than 1,040 
workings hour in a service year. Temporary appointments under this 
authority may be extended in 1-year increments, with no limit on the 
number of such extensions, as an exception to the service limits in 
Sec.  213.104.
    (2) Positions for which a critical hiring need exists. This includes 
both short-term positions and continuing positions that an agency must 
fill on an interim basis pending completion of competitive examining, 
clearances, or other procedures required for a longer appointment. 
Appointments under this authority may not exceed 30 days and may be 
extended for up to an additional 30 days if continued employment is 
essential to the agency's operations. The appointments may not be used 
to extend the service limit of any other appointing authority. An agency 
may not employ the same individual under this authority for more than 60 
days in any 12-month period.
    (3) Other positions for which OPM determines that examining is 
impracticable.
    (j) Positions filled by current or former Federal employees eligible 
for placement under special statutory provisions. Appointments under 
this authority are subject to the following conditions.
    (1) Eligible employees. (i) Persons previously employed as National 
Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement 
under Sec.  353.110 of this chapter, or who are applying for or 
receiving an annuity under the provisions of 5 U.S.C. 8337(h) or 8456 by 
reason of a disability that disqualifies them from membership in the 
National Guard or from holding the military grade required as a 
condition of their National Guard employment.
    (ii) Executive branch employees (other than employees of 
intelligence agencies) who are entitled to placement under Sec.  353.110 
but who are not eligible for reinstatement or noncompetitive appointment 
under the provisions of part 315 of this chapter.
    (iii) Legislative and judicial branch employees and employees of the 
intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are 
entitled to placement under Sec.  353.110.
    (2) Employees excluded. Employees who were last employed in Schedule 
C or under a statutory authority that specified the employee served at 
the discretion, will, or pleasure of the agency are not eligible for 
appointment under this authority.
    (3) Position to which appointed. Employees who are entitled to 
placement under Sec.  353.110 will be appointed to a position that OPM 
determines is equivalent in pay and grade to the one the individual 
left, unless the individual elects to be placed in a position of lower 
grade or pay. National Guard Technicians whose eligibility is based upon 
a disability may be appointed at the same grade, or equivalent, as their 
National Guard Technician position or at any lower grade for which they 
are available.
    (4) Conditions of appointment. (i) Individuals whose placement 
eligibility is based on an appointment without time limit will receive 
appointments without time limit under this authority. These appointees 
may be reassigned, promoted, or demoted to any position within the same 
agency for which they qualify.

[[Page 70]]

    (ii) Individuals who are eligible for placement under Sec.  353.110 
based on a time-limited appointment will be given appointments for a 
time period equal to the unexpired portion of their previous 
appointment.
    (k) Positions without compensation provided appointments thereto 
meet the requirements of applicable laws relating to compensation.
    (l) Positions requiring the temporary or intermittent employment of 
professional, scientific, or technical experts for consultation 
purposes.
    (m) [Reserved]
    (n) Any local physician, surgeon, or dentist employed under contract 
or on a part-time or fee basis.
    (o) Positions of a scientific, professional, or analytical nature 
when filled by bona fide members of the faculty of an accredited college 
or university who have special qualifications for the positions to which 
appointed. Employment under this provision shall not exceed 130 working 
days a year.
    (p)-(q) [Reserved]
    (r) Positions established in support of fellowship and similar 
programs that are filled from limited applicant pools and operate under 
specific criteria developed by the employing agency and/or a non-Federal 
organization. These programs may include: internship or fellowship 
programs that provide developmental or professional experiences to 
individuals who have completed their formal education; training and 
associateship programs designed to increase the pool of qualified 
candidates in a particular occupational specialty; professional/industry 
exchange programs that provide for a cross-fertilization between the 
agency and the private sector to foster mutual understanding, an 
exchange of ideas, or to bring experienced practitioners to the agency; 
residency programs through which participants gain experience in a 
Federal clinical environment; and programs that require a period of 
Government service in exchange for educational, financial or other 
assistance. Appointments under this authority may not exceed 4 years.
    (s) Positions with compensation fixed under 5 U.S.C. 5351-5356 when 
filled by student-employees assigned or attached to Government 
hospitals, clinics or medical or dental laboratories. Employment under 
this authority may not exceed 4 years.
    (t) [Reserved]
    (u) Appointment of persons with mental retardation, severe physical 
disabilities, or psychiatric disabilities--(1) Purpose. An agency may 
appoint, on a permanent, time-limited, or temporary basis, a person with 
mental retardation, a severe physical disability, or a psychiatric 
disability according to the provisions described below.
    (2) Proof of disability. (i) An agency must require proof of an 
applicant's mental retardation, severe physical disability, or 
psychiatric disability prior to making an appointment under this 
section.
    (ii) An agency may accept, as proof of an individual's mental 
retardation, severe physical disability, or psychiatric disability, 
appropriate documentation (e.g., records, statements, or other 
appropriate information) issued from a licensed medical professional 
(e.g., a physician or other medical professional duly certified by a 
State, the District of Columbia, or a U.S. territory, to practice 
medicine); a licensed vocational rehabilitation specialist (i.e., State 
or private); or any Federal agency, State agency, or an agency of the 
District of Columbia or a U.S. territory that issues or provides 
disability benefits.
    (3) Certification of job readiness. (i) An agency may accept 
certification that the individual is likely to succeed in the 
performance of the duties of the position for which he or she is 
applying. Certification of job readiness may be provided by any entity 
specified in paragraph (u)(2)(ii) of this section.
    (ii) In cases where certification has not been provided, the hiring 
agency may give the individual a temporary appointment under this 
authority to determine the individual's job readiness. The agency may 
also accept, at the agency's discretion, service under another type of 
temporary appointment in the competitive or excepted services as proof 
of job readiness.
    (4) Permanent or time-limited employment options. (i) An agency may 
make a permanent or time-limited appointment based upon:
    (A) Proof of disability; and

[[Page 71]]

    (B) A certification of job readiness, or demonstration of job 
readiness through a temporary appointment.
    (5) Temporary employment options. An agency may make a temporary 
appointment based upon proof of disability specified in paragraph (u)(2) 
of this section when:
    (i) It is necessary to observe the applicant on the job to determine 
whether the applicant is able or ready to perform the duties of the 
position. When an agency uses this option to determine an individual's 
job readiness, the hiring agency may convert the individual to a 
permanent appointment whenever the agency determines the individual is 
able to perform the duties of the position; or
    (ii) The individual has a certification of job readiness and the 
work is of a temporary nature.
    (6) Noncompetitive conversion to the competitive service. (i) An 
agency may noncompetitively convert to the competitive service an 
employee who has completed 2 years of satisfactory service in a 
nontemporary appointment under this authority in accordance with the 
provisions of Executive Order 12125 as amended by Executive Order 13124 
and Sec.  315.709 of this chapter.
    (ii) An agency may credit time spent on a temporary appointment 
specified in paragraph (u)(5) of this section towards the 2-year 
requirement.
    (v)-(w) [Reserved]
    (x) Positions for which a local recruiting shortage exists when 
filled by inmates of Federal, District of Columbia and State (including 
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
Samoa, and the Trust Territory of the Pacific Islands) penal and 
correctional institutions under work-release programs authorized by the 
Prisoner Rehabilitation Act of 1965, the District of Columbia Work 
Release Act, or under work-release programs authorized by the States. 
Initial appointments under the authority may not exceed 1 year. An 
initial appointment may be extended for one or more periods not to 
exceed 1 additional year each upon a finding that the inmate is still in 
a work-release status and that a local recruiting shortage still exists. 
No person may serve under this authority longer than 1-year beyond the 
date of that person's release from custody.
    (y) [Reserved]
    (z) Not to exceed 30 positions of assistants to top-level Federal 
officials when filled by persons designated by the President as White 
House Fellows.
    (aa) Scientific and professional research associate positions at GS-
11 and above when filled on a temporary basis by persons having a 
doctoral degree in an appropriate field of study for research activities 
of mutual interest to appointees and their agencies. Appointments are 
limited to persons referred by the National Research Council under its 
post-doctoral research associate program, may not exceed 2 years, and 
are subject to satisfactory outcome of evaluation of the associate's 
research during the first year.
    (bb) Positions when filled by aliens in the absence of qualified 
citizens. Appointments under this authority are subject to prior 
approval of the Office except when the authority is specifically 
included in a delegated examining agreement with the Office.
    (cc)-(ee) [Reserved]
    (ff) Not to exceed 24 positions when filled in accordance with an 
agreement between OPM and the Department of Justice by persons in 
programs administered by the Attorney General of the United States under 
Public Law 91-452 and related statutes. A person appointed under this 
authority may continue to be employed under it after he ceases to be in 
a qualifying program only as long as he remains in the same agency 
without a break in service.
    (gg)-(hh) [Reserved]
    (ii) Positions of Fellows in the Presidential Management Fellows 
Program. Initial appointments of Fellows are made at either the GS-9, 
GS-11, or GS-12 level (or their equivalents), depending on the 
candidate's qualifications. Appointments are made under this authority 
for 2 years; however, upon approval of OPM, the head of the department, 
agency, or component within the Executive Office of the President may 
extend the appointment for up to 1 additional year. Upon the Fellow's 
satisfactory completion of the Program, as certified by the employing 
agency's Executive Resources Board (ERB) or equivalent, the employing 
agency must

[[Page 72]]

noncompetitively appoint the Fellow to a full-time, permanent position 
in the competitive service as prescribed in Sec.  315.708 and part 362 
of this chapter.
    (jj) Positions of Senior Fellows in the Presidential Management 
Fellows Program. Initial appointments are made at the GS-13, GS-14, or 
GS-15 level (or their equivalents), depending on the candidate's 
qualifications. Appointments may be made under this authority for up to 
2 years; however, upon approval of OPM, the head of the department, 
agency, or component within the Executive Office of the President may 
extend the Senior Fellow's appointment for up to 1 additional year. Upon 
the Senior Fellow's satisfactory completion of the Program, as certified 
by the employing agency's Executive Resources Board (ERB) or equivalent, 
the employing agency must noncompetitively appoint the Fellow to a full-
time, permanent position in the competitive service as prescribed in 
Sec.  315.708 and part 362 of this chapter. If a Senior Fellow 
successfully completes the Program, as certified by the appointing 
agency's ERB or equivalent, he/she may, at the agency's discretion, be 
appointed to a position in the Senior Executive Service (SES) (or the 
equivalent) without further competition and only one time, in the same 
manner, and subject to the same Qualifications Review Board review, as 
an individual who has successfully completed an OPM-approved SES 
candidate development program under parts 317 and 412 of this chapter.
    (kk) [Reserved]
    (ll) Positions as needed of readers for blind employees, 
interpreters for deaf employees and personal assistants for handicapped 
employees, filled on a full time, part-time, or intermittent basis.

(5 U.S.C. 3301, 3307, 8337(h); 5 U.S.C. 3301, 3302; EO 12364, 47 FR 
22931)

[47 FR 28902, July 2, 1982]

    Editorial Note: For Federal Register citations affecting Sec.  
213.3102, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec.  213.3199  Temporary organizations.

    Positions on the staffs of temporary organizations, as defined in 5 
U.S.C. 3161(a). Appointments may not exceed 3 years, but temporary 
organizations may extend the appointments for 2 additional years if the 
conditions for extension are related to the completion of the study or 
project.

[68 FR 24605, May 8, 2003]

                               Schedule B



Sec.  213.3201  Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination.

    (a) Upon specific authorization by OPM, agencies may make 
appointments under this section to positions which are not of a 
confidential or policy-determining character, and which are not in the 
Senior Executive Service, for which it is impracticable to hold open 
competition or to apply usual competitive examining procedures. 
Appointments under this authority are subject to the basic qualification 
standards established by the Office of Personnel Management for the 
occupation and grade level. Positions filled under this authority are 
excepted from the competitive service and constitute Schedule B. For 
each authorization under this section, OPM shall assign a number from 
213.3202 through 213.3299 to be used by the appointing agency in 
recording appointments made under that authorization.
    (b) [Reserved]

[46 FR 20147, Apr. 3, 1981, as amended at 47 FR 57655, Dec. 28, 1982; 53 
FR 15353, Apr. 29, 1988]



Sec.  213.3202  Entire executive civil service.

    (a) Student Educational Employment Program--Student Temporary 
Employment Program. (1) Students may be appointed to the Student 
Temporary Employment Program if they are pursuing any of the following 
educational programs:
    (i) High school diploma or General Equivalency Diploma (GED);
    (ii) Vocational/Technical certificate;
    (iii) Associate degree;
    (iv) Baccalaureate degree;
    (v) Graduate degree; or
    (vi) Professional degree.
    (2) Definition of student. A student is an individual who has been 
accepted

[[Page 73]]

for enrollment or who is enrolled and seeking a degree (diploma, 
certificate, etc.) in a high school whose curriculum has been approved 
by a State or local governing body, or in a technical or vocational 
school, 2-year or 4-year college or university, or graduate or 
professional school, that has been accredited by an accrediting body 
recognized by the Secretary of the U.S. Department of Education. The 
definition of half-time is the definition provided by the school in 
which the student is enrolled. Students need not be in actual physical 
attendance, so long as all other requirements are met. An individual who 
needs to complete less than the equivalent of half an academic/
vocational or technical course-load in the class enrollment period 
immediately prior to graduating is still considered a student for 
purposes of this program.
    (3) Schedules. Students may work full-time or part-time schedules at 
any time during the year. There are no limitations on the number of 
hours a student can work per week, but the student's work schedule 
should not interfere with the student's academic schedule.
    (4) Breaks in program. A break in program is defined as a period of 
time when a program participant is working but is unable to go to 
school, or neither attending classes nor working at the agency. Agencies 
may use their discretion in either approving or denying a break in 
program.
    (5) Employment of minors. Participation in this program must be in 
conformance with Federal, State, or local laws and standards governing 
the employment of minors.
    (6) Citizenship. Agencies may appoint non-citizens provided that:
    (i) The student is lawfully admitted to the United States as a 
permanent resident or otherwise authorized to be employed; and
    (ii) The agency is authorized to pay aliens under the annual 
appropriations act ban and any agency specific enabling and 
appropriation statutes.
    (7) Employment of relatives. In accordance with part 310 of this 
chapter, a student may work in the same agency with a relative when 
there is no direct reporting relationship and the relative is not in a 
position to influence or control the student's appointment, employment, 
promotion or advancement within the agency.
    (8) Financial need. There is no requirement for students to meet any 
specific economic/income criteria to be eligible. However, agencies have 
the option to establish and use financial need as a criteria to select 
students, if they wish. OPM does not develop or distribute annual 
economic guidelines for use in determining financial need. An agency 
wishing to use the Department of Health and Human Services' poverty 
guidelines may call the Department of Health and Human Services, Office 
of the Assistant Secretary for Planning and Evaluation.
    (9) Training expenses: Observing the prohibitions in 5 U.S.C. 4107, 
agencies may use their training authority in 5 U.S.C. chapter 41 and 5 
CFR part 410 to pay all or part of training expenses directly related to 
students' official duties.
    (10) Appointments. (i) Students are appointed to positions not to 
exceed 1 year. Appointments under this authority may be extended in one-
year increments as long as the individual meets the definition of a 
student. Agencies may establish minimum academic requirements and on the 
job performance requirements for continuation in the program. Students 
under this appointment authority are excepted from the limitations under 
Sec.  213.104.
    (ii) The nature of the duties does not have to be related to the 
student's academic/career goals.
    (iii) Students are not eligible for noncompetitive conversion to 
term, career, or career-conditional appointments. They may be converted 
to the Student Career Experience Program (refer to paragraph (a)(15) of 
this section).
    (11) Classification. Classification of students is based on the 
occupational series for which they are hired. Grade level is to be set 
according to the criteria in the appropriate General Schedule (GS) or 
wage grade (WG) classification standard.
    (12) Qualifications. Students may be evaluated either by agency-
developed standards or by the OPM qualification requirements for the 
position to which appointed. Students are eligible for

[[Page 74]]

promotions. Promotions should be documented as a conversion to another 
excepted appointment, citing the same authority used for the original 
appointment and maintaining the original not-to-exceed (NTE) date.
    (13) Benefits. (i) Students under this program are eligible for 
annual and sick leave and are generally ineligible for retirement 
coverage. Refer to Sec.  831.201 and Sec.  842.105 of this chapter for 
specific information.
    (ii) For rules on health and life insurance coverage refer to Sec.  
870.202, Sec.  890.102, and Sec.  890.502 of this chapter.
    (14) Reductions-in-Force (RIF). Students are covered by Sec.  
351.502 of this chapter for purposes of RIF. Students, provided they 
have completed at least 1 year of current continuous service, are in 
excepted service Tenure Group III.
    (15) Conversion to Student Career Experience Program. (i) Students 
may be noncompetitively converted to the Student Career Experience 
Program whenever they meet the requirements of that program and the 
agency has an appropriate position available.
    (ii) Work experience related to the student's academic program and 
career goals, gained while under the Student Temporary Employment 
Program, may be credited towards the 640 hour work experience necessary 
for noncompetitive conversion to a term, career, or career-conditional 
appointment.
    (iii) Conversions are not subject to requirements of subparts C and 
D of part 302 of this chapter.
    (b) Student Educational Employment Program--Student Career 
Experience Program. (1)(i) Students may be appointed to the Student 
Career Experience Program if they are pursuing any of the following 
educational programs:
    (A) High school diploma or General Equivalency Diploma (GED);
    (B) Vocational/Technical certificate;
    (C) Associate degree;
    (D) Baccalaureate degree;
    (E) Graduate degree; or
    (F) Professional degree.
    (ii) Student participants in the Harry S. Truman Foundation 
Scholarship Program under the provision of Public Law 93-842 are 
eligible for appointments under the Student Career Experience Program.
    (2) Definition of student. A student is an individual who has been 
accepted for enrollment or who is enrolled and seeking a degree 
(diploma, certificate, etc.) in a high school whose curriculum has been 
approved by a State or local governing body, or in a technical or 
vocational school, 2-year or 4-year college or university, or graduate 
or professional school, that has been accredited by an accrediting body 
recognized by the Secretary of the U.S. Department of Education. The 
definition of half-time is the definition provided by the school in 
which the student is enrolled. Students need not be in actual physical 
attendance, so long as all other requirements are met. An individual who 
needs to complete less than the equivalent of half an academic/
vocational or technical course-load in the class enrollment period 
immediately prior to graduating is still considered a student for 
purposes of this program.
    (3) Schedules. Students may work full-time or part-time schedules at 
any time during the year. There are no limitations on the number of 
hours a student can work per week, but the student's work schedule 
should not interfere with the student's academic schedule.
    (4) Breaks in program. A break in program is defined as a period of 
time when a program participant is working but is unable to go to 
school, or neither attending classes nor working at the agency. Agencies 
may use their discretion in either approving or denying a break in 
program.
    (5) Employment of minors. Participation in this program must be in 
conformance with Federal, State, or local laws and standards governing 
the employment of minors.
    (6) Citizenship. (i) Agencies may appoint non-citizens provided 
that:
    (A) The student is lawfully admitted to the United States as a 
permanent resident or otherwise authorized to be employed; and
    (B) The agency is authorized to pay aliens under the annual 
appropriations act ban and any agency specific enabling and 
appropriation statutes.
    (ii) All students must be United States citizens at the time they 
are noncompetitively converted to a term,

[[Page 75]]

career, or career-conditional appointment.
    (7) Employment of relatives. In accordance with part 310 of this 
chapter, a student may work in the same agency with a relative when 
there is no direct reporting relationship and the relative is not in a 
position to influence or control the student's appointment, employment, 
promotion or advancement within the agency.
    (8) Financial need. There is no requirement for students to meet any 
specific economic/income criteria to be eligible. However, agencies have 
the option to establish and use financial need as a criteria to select 
students, if they wish. OPM does not develop or distribute annual 
economic guidelines for use in determining financial need. An agency 
wishing to use the Department of Health and Human Services' poverty 
guidelines may call the Department of Health and Human Services, Office 
of the Assistant Secretary for Planning and Evaluation.
    (9) Training expenses: Observing the prohibitions in 5 U.S.C. 4107, 
agencies may use their training authority in 5 U.S.C. chapter 41 and 5 
CFR part 410 to pay all or part of training expenses directly related to 
students' official duties.
    (10) Appointments. (i) Appointments are subject to all the 
requirements and conditions governing term, career, or career-
conditional employment, including investigation to establish an 
appointee's qualifications and suitability.
    (ii) Appointments of participants who have met all the requirements 
of the program may be noncompetitively converted to term, career, or 
career-conditional appointments at any time within 120 days after 
satisfactory completion of the requirements for his/her diploma, 
certificate, or degree.
    (11) Program requirements for noncompetitive conversion. (i) A 
student who is a U.S. citizen may be noncompetitively converted from the 
Student Career Experience Program to a term, career-conditional, or 
career appointment under Executive Order 12015 (as amended by Executive 
Order 13024) when the student has:
    (A) Completed at least 640 hours of career-related work experience 
acquired through a Federal work-study program while otherwise enrolled 
as a full-time or part-time, degree-seeking student. Up to 320 hours 
acquired through a comparable non-Federal work-study program meeting the 
criteria set forth in paragraph (b)(11)(ii) of this section may be 
credited toward the 640-hour minimum for students pursuing degrees under 
paragraphs (b)(1)(i)(D) through (F) of this section;
    (B) Completed a course of academic study from an accredited school 
conferring a diploma, certificate, or degree, within the 120-day period 
preceding the appointment;
    (C) Received a favorable recommendation regarding such an 
appointment by an official of the agency or agencies in which the job-
related work experience was acquired; and
    (D) Met the qualification standards for the position to which the 
student will be appointed.
    (ii) To be creditable under paragraph (b)(11)(i)(A) of this section, 
work experience must be in a field or functional area that is related to 
the student's target position/career field and must be acquired either 
under a Student Educational Employment Program appointment, any previous 
Federal appointment (e.g. fellowships and similar programs in accordance 
with 5 CFR 213.3102(r)), or while the student:
    (A) Worked in, but not for, a Federal agency, pursuant to a formal 
work-study agreement comparable to the SCEP agreements under 
213.3202(b)(12) between the agency and an accredited academic 
institution; to include those student volunteers as defined by 5 CFR 
part 308;
    (B) Worked in, but not for, a Federal agency, pursuant to a written 
contract comparable to the SCEP agreements under 213.3202(b)(12) between 
the agency and an organization officially established to provide 
internship experiences to students; or
    (C) Served as an active duty member of the armed forces of the 
United States (including the National Guard and Reserves), as defined in 
5 U.S.C. 2101, and has been discharged or released from active duty in 
the armed forces under honorable conditions.
    (iii) Agencies may waive up to one-half (i.e., 320 hours) of the 
640-hour

[[Page 76]]

minimum service requirement in paragraph (b)(11)(i)(A) of this section 
if a student enrolled in an accredited college or university completes 
320 hours of career-related work experience under a Student Educational 
Employment Program appointment and has demonstrated high potential, as 
evidenced by outstanding academic achievement and exceptional job 
performance.
    (A) Outstanding academic achievement must be demonstrated by an 
overall grade point average of 3.5 or better, on a 4.0 scale; standing 
in the top 10 percent of the student's graduating class; and/or 
induction into a nationally-recognized scholastic honor society. 
Notwithstanding these differences, agencies may still refer to 
``superior academic achievement'' in OPM's Qualifications Standards for 
General Schedule Positions available on the OPM Web site at http://
www.opm.gov to obtain specific guidance on GPA, class standing, and 
nationally recognized honor societies.
    (B) Exceptional job performance must be demonstrated by a formal 
evaluation conducted by the student's work-study supervisor(s), in a 
manner consistent with the applicable performance appraisal program 
established under an approved performance appraisal system.
    (iv) Service credited under paragraphs (b)(ii)(A) and (B) of this 
section is not creditable for any other purpose of this chapter. Student 
volunteer service under part 308 of this chapter and fellows appointed 
under 5 CFR 213.3102(r) may be evaluated, considered, and credited under 
this section when that experience is determined to be comparable in 
scope to experience gained in the Student Career Experience Program.
    (v) Noncompetitive conversion may be to a position within the same 
agency or any other agency within the Federal Government but must be to 
an occupation related to the student's academic training and work-study 
experience.
    (vi) Agencies that noncompetitively convert a Student Career 
Experience Program graduate to a term appointment may also 
noncompetitively convert that individual to a career or career-
conditional appointment before the term appointment expires.
    (12) Agreement by all parties. (i) The Student Career Experience 
Program is a formally structured program and requires a written 
agreement by all parties (agency, school, student) as to the:
    (A) Nature of work assignments;
    (B) Schedule of work assignments and class attendance;
    (C) Evaluation procedures; and
    (D) Requirements for continuation and successful completion of the 
program.
    (ii) The work experience with the agency must be related to his/her 
academic/career goals.
    (13) Schedule. Agencies, participating educational institutions, and 
students should agree on a formally-arranged schedule of school and work 
to ensure that:
    (i) Work responsibilities do not interfere with academic 
performance;
    (ii) Completion of the educational program (awarding of diploma/
certificate/degree) and the Student Career Experience Program are 
accomplished in a reasonable and appropriate timeframe;
    (iii) The agency is informed and prepared for the student's periods 
of employment; and
    (iv) Requirements for non-competitive conversion to term, career, or 
career-conditional employment are understood by all parties.
    (14) Classification. Students whose positions are covered by the 
General Schedule will be classified as student trainees, to the -99 
series of the appropriate occupational group. Students whose positions 
are covered by the Federal Wage System will be classified as student 
trainees, to the -01 series of the appropriate occupational group.
    (15) Qualifications. Students may be evaluated by either agency-
developed standards or by the OPM qualifications requirements for the 
target position. Any OPM test requirements are waived. Students are 
eligible for promotion.
    (16) Benefits. (i) Students appointed under this program earn annual 
and sick leave and with no prior service or with less than 5 years of 
prior civilian service, are generally covered by the

[[Page 77]]

Federal Employees Retirement System (FERS) (see part 842 of this 
chapter).
    (ii) For life insurance and health benefits coverage refer to Sec.  
870.202 and Sec.  890.102 of this chapter.
    (17) Tuition assistance. Observing the prohibitions in 5 U.S.C. 
4107, agencies may use their training authority in 5 U.S.C. chapter 41 
and 5 CFR part 410 to pay all or part of training expenses directly 
related to students' official duties.
    (18) Travel and transportation. Agencies may pay for other expenses 
directly related to training, such as travel and transportation between 
duty station and school, for participants.
    (19) Reduction-in-force (RIF). (i) Students are in excepted service 
Tenure Group II for purposes of Sec.  351.502. They are accorded the 
same retention rights as excepted service employees.
    (ii) They may qualify for severance pay if involuntarily separated 
under part 550, subpart G of this chapter.
    (c)-(i) [Reserved]
    (j) Special executive development positions established in 
connection with Senior Executive Service candidate development programs 
which have been approved by OPM. A Federal agency may make new 
appointments under this authority for any period of employment not 
exceeding 3 years for one individual.
    (k)-(l) [Reserved]
    (m) Positions when filed under any of the following conditions:
    (1) Appointment at grades GS-15 and above, or equivalent, in the 
same or a different agency without a break in service from a career 
appointment in the Senior Executive Service (SES) of an individual who:
    (i) Has completed the SES probationary period;
    (ii) Has been removed from the SES because of less than fully 
successful executive performance, failure to be recertified, or a 
reduction in force; and
    (iii) Is entitled to be placed in another civil service position 
under 5 U.S.C. 3594(b).
    (2) Appointment in a different agency without a break in service of 
an individual originally appointed under paragraph (m)(l).
    (3) Reassignment, promotion, or demotion within the same agency of 
an individual appointed under this authority.
    (n) Positions when filled by preference eligibles or veterans who 
have been separated from the armed forces under honorable conditions 
after 3 years or more of continuous active military service and who, in 
accordance with the provisions of Pub.L. 105-339, applied for these 
positions under merit promotion procedures when applications were being 
accepted from individuals outside its own workforce. These veterans may 
be promoted, demoted, or reassigned, as appropriate, to other positions 
within the agency but would remain employed under this excepted 
authority as long as there is no break in service. No new appointments 
may be made under this authority after November 30, 1999.
    (o) The Federal Career Intern Program--(1) Appointments. 
Appointments under the Federal Career Intern Program (FCIP) may not 
exceed 2 years, except as described in paragraph (o)(2) of this section. 
Initial appointments are made to a position at the grade GS-5, 7, or 9 
(and equivalent) or other trainee levels appropriate for the Program, 
unless otherwise approved by OPM. Agencies will use part 302 of this 
chapter when making appointments under this Program.
    (2) Extensions. (i) Agencies must request, in writing, OPM approval 
to establish or extend internships for up to 1 additional year beyond 
the authorized 2 years for additional training and/or developmental 
activities.
    (ii) Agencies may extend, without prior OPM approval, 2-year 
internships for up to an additional 120 days to cover rare or unusual 
circumstances, or situations where agencies have established criteria 
for approving extensions.
    (3) Qualifications. Candidates will be evaluated using OPM 
qualification standards or OPM-approved, agency-specific qualification 
standards.
    (4) Tenure Group. Career interns are in the excepted service Tenure 
Group II for purposes of Sec.  351.502 of this chapter. Expiration of 
the internship is not subject to part 351 of this chapter.
    (5) Promotions. During the internship period, career interns may 
receive promotions as determined by an agency's

[[Page 78]]

plan. This provision does not confer entitlement to promotion.
    (6) Conversion to Competitive Service. Except as provided in 
paragraph (o)(6)(ii) of this section, service as a career intern confers 
no rights to further Federal employment in either the competitive or 
excepted service upon the expiration of the internship period.
    (i) Competitive civil service status may be granted to career 
interns who successfully complete their internships and meet all 
qualification, suitability, and performance requirements. These 
noncompetitive conversions will be effective on the date the 2-year 
service requirement is met, or at the end of an agency or OPM-approved 
extension.
    (ii) An employee who held a career or career-conditional appointment 
in an agency immediately before entering the FCIP in the same agency, 
and who fails to complete the FCIP for reasons unrelated to misconduct 
or suitability, shall be placed in a career or career-conditional 
position in the current agency at no lower grade or pay than the one the 
employee left to accept the position in the FCIP. For purposes of this 
paragraph, ``agency'' means an Executive agency as defined in 5 U.S.C. 
105. An Executive department may treat each of its bureaus or components 
(first major subdivision that is separately organized and clearly 
distinguished from other bureaus or components in work function and 
operation) as a separate agency or as part of one agency, but must do so 
by agency directive in establishing the Program.
    (iii) Service under the FCIP counts toward career tenure in the 
competitive service, if the career intern is converted to a career-
conditional appointment under Sec.  315.712 of this chapter.
    (7) Terminations. As a condition of employment, the appointment of a 
career intern expires at the end of the 2-year internship period, plus 
any extension. The employing agency may, with no break in service, 
convert the intern to a career or career-conditional appointment in 
accordance with Sec.  315.712 of this chapter. If an employee is not 
converted to a career or career-conditional appointment, the career 
intern appointment terminates, unless the employee is specifically 
eligible for placement under paragraph (o)(6)(ii) of this section.
    (8) Movement between career intern positions. A career intern may 
move from one career intern position to another career intern position 
without a break in service. If the move involves different agencies, the 
career intern must separate from the current agency and be reappointed 
under a career intern appointment by the new employing agency. The 
career intern does not begin a new 2-year internship period; however, 
the career intern is subject to any other employment condition the new 
agency requires, including a possible extension of the internship period 
up to a maximum period of 1 year. The time previously served under a 
career intern appointment counts toward the completion of the 2-year 
period required for conversion.
    (9) Career Development. Agencies will provide the career interns 
with formal training and developmental opportunities to acquire the 
appropriate agency-identified competencies needed for conversion. These 
activities may include, but are not limited to, formal training classes, 
rotational or other job assignments, attendance at conferences and 
seminars, interagency assignments, or other activities approved by the 
agency.
    (10) Agency Responsibilities. Each agency will determine the 
appropriate use of the FCIP relating to recruitment needs in 
geographical areas, specific occupational series, and grades, pay bands 
or other pay levels, ensuring that programs are developed and 
implemented in accordance with the merit system principles. Each agency 
must describe in writing how it will use the FCIP, including, but not 
limited to, such aspects as:
    (i) Delegating the authority to develop FCIPs (e.g., department-wide 
versus bureaus and agency components);
    (ii) Defining the roles and responsibilities of supervisors and 
other key officials in FCIP administration, such as human resources 
staff, budget and finance staff, career counselors, or mentors;
    (iii) Identifying the positions or occupations that will be covered 
under the FCIP;

[[Page 79]]

    (iv) Developing procedures for accepting applications, and 
evaluating and selecting candidates according to part 302 of this 
chapter on employment in the excepted service and any other applicable 
requirements;
    (v) Designing, implementing, and documenting formal program(s) for 
the training and development of employees selected under the provisions 
of this Program, including the type and duration of assignments;
    (vi) Deciding how to inform the career interns of what will be 
expected during the internship, including developmental assignments and 
performance requirements; and
    (vii) Planning, coordinating, implementing, and monitoring program 
activities.

[47 FR 28904, July 2, 1982]

    Editorial Note: For Federal Register citations affecting Sec.  
213.3202, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

                               Schedule C



Sec.  213.3301  Positions of a confidential or policy-determining nature.

    (a) Upon specific authorization by OPM, agencies may make 
appointments under this section to positions which are policy-
determining or which involve a close and confidential working 
relationship with the head of an agency or other key appointed 
officials. Positions filled under this authority are excepted from the 
competitive service and constitute Schedule C. Each position will be 
assigned a number from Sec.  213.3302 to Sec.  213.3999, or other 
appropriate number, to be used by the agency in recording appointments 
made under that authorization.
    (b) When requesting Schedule C exception, agencies must submit to 
OPM a statement signed by the agency head certifying that the position 
was not created solely or primarily for the purpose of detailing the 
incumbent to the White House.
    (c) The exception from the competitive service for each position 
listed in Schedule C by OPM is revoked immediately upon the position 
becoming vacant. An agency shall notify OPM within 3 working days after 
a Schedule C position has been vacated.

[60 FR 35120, July 6, 1995]



Sec.  213.3302  Temporary transitional Schedule C positions.

    (a) An agency may establish temporary transitional Schedule C 
positions necessary to assist a department or agency head during the 1-
year period immediately following a change in presidential 
administration, when a new department or agency head has entered on 
duty, or when a new department or agency is created. These positions may 
be established only to meet legitimate needs of the agency in carrying 
out its mission during the period of transition associated with such 
changeovers. They must be of a confidential or policy-determining 
character and are subject to instructions issued by OPM.
    (b) The number of temporary transitional Schedule C positions 
established by an agency cannot exceed either 50 percent of the highest 
number of permanent Schedule C positions filled by that agency at any 
time over the previous 5 years, or three positions, whichever is higher. 
In the event a new department or agency is created, the number of 
temporary transitional positions should reasonable in light of the size 
and program responsibility of that department or agency. OPM may approve 
an increase in an agency's quota to meet a critical need or in unusual 
circumstances.
    (c) Individual appointments under this authority may be made for 120 
days, with one extension of an additional 120 days. They may be deemed 
provisional appointments for purposes of the regulations set out in 
parts 351, 831, 842, 870, and 890 of this chapter if they meet the 
criteria set out in Sec. Sec.  316.401 and 316.403 of this chapter.
    (d) An agency shall notify OPM within 5 working days after a 
temporary transitional Schedule C position has been encumbered and 
within 3 working days when it has been vacated. The agency must also 
submit to OPM a statement signed by the agency head certifying that the 
position was not

[[Page 80]]

created solely or primarily for the purpose of detailing the incumbent 
to the White House.

[60 FR 35120, July 6, 1995]



PART 214_SENIOR EXECUTIVE SERVICE--Table of Contents




Subpart A [Reserved]

                      Subpart B_General Provisions

Sec.
214.201 Definitions.
214.202 Authority to make determinations.
214.203 Reporting requirements.
214.204 Interchange agreements.

                          Subpart C_Exclusions

214.301 Exclusions.

                      Subpart D_Types of Positions

214.401 Types of positions.
214.402 Career reserved positions.
214.403 Change of position type.

    Authority: 5 U.S.C. 3132.

    Source: 45 FR 62414, Sept. 19, 1980, unless otherwise noted.

Subpart A [Reserved]



                      Subpart B_General Provisions



Sec.  214.201  Definitions.

    For the purposes of this part:
    Agency, Senior Executive Service position, career appointee, limited 
term appointee, limited emergency appointee, and noncareer appointee 
have the meanings set forth in section 3132(a) of title 5, United States 
Code.
    Equivalent position as used in section 3132(a)(2) of title 5, United 
States Code, means a position under any pay system where the level of 
the duties and responsibilities of the position and the rate of pay are 
comparable to that of a position above GS-15 or at Executive Level IV or 
V.
    Senior Executive Service has the meaning given that term by section 
2101a of title 5, United States Code, and includes all positions which 
meet the definition in section 3132(a)(2) of title 5.

[45 FR 62414, Sept. 19, 1980, as amended at 56 FR 18661, Apr. 23, 1991]



Sec.  214.202  Authority to make determinations.

    (a) Each agency is responsible for determining, in accordance with 
Office of Personnel Management guidelines, which of its positions should 
be included in the Senior Executive Service.
    (b) Agency determinations may be reviewed by the Office of Personnel 
Management to ensure adherence with law and regulation.



Sec.  214.203  Reporting requirements.

    Agencies shall report such information as may be requested by OPM 
relating to positions and employees in the Senior Executive Service.

[60 FR 6385, Feb. 2, 1995]



Sec.  214.204  Interchange agreements.

    (a) In accordance with 5 CFR 6.7, OPM and any agency with an 
executive personnel system essentially equivalent to the Senior 
Executive Service (SES) may, pursuant to legislative and regulatory 
authorities, enter into an agreement providing for the movement of 
persons between the SES and the other system. The agreement shall define 
the status and tenure that the persons affected shall acquire upon the 
movement.
    (b) Persons eligible for movement must be serving in permanent, 
continuing positions with career or career-type appointments. They must 
meet the qualifications requirements of any position to which moved.
    (c) An interchange agreement may be discontinued by either party 
under such conditions as provided in the agreement.

[60 FR 6385, Feb. 2, 1995]



                          Subpart C_Exclusions



Sec.  214.301  Exclusions.

    If not excluded from the Senior Executive Service by section 3132(a) 
(1) or (2) of title 5, United States Code, an agency, or unit thereof, 
may be excluded only under the provisions of section 3132 (c) through 
(f) of title 5.

[[Page 81]]



                      Subpart D_Types of Positions



Sec.  214.401  Types of positions.

    There are two types of positions in the Senior Executive Service:
    (a) General positions, which may be filled by a career, noncareer, 
limited emergency, or limited term appointee.
    (b) Career reserved positions, which may be filled only by a career 
appointee.



Sec.  214.402  Career reserved positions.

    (a) The head of each agency is responsible for designating career 
reserved positions in accordance with the regulations in this section.
    (b) A position shall be designated as a career reserved position if:
    (1) The position (except a position in the Executive Office of the 
President):
    (i) Was under the Executive Schedule, or the rate of basic pay was 
determined by reference to the Executive Schedule, on October 12, 1978;
    (ii) Was specifically required under section 2102 of title 5, United 
States Code, or otherwise required by law to be in the competitive 
service; and
    (iii) Entailed direct responsibility to the public for the 
management or operation of particular government programs or functions; 
or
    (2) The position must be filled by a career appointee to ensure 
impartiality, or the public's confidence in the impartiality, of the 
Government.
    (c) The head of an agency shall use the following criteria in 
determining whether paragraph (b)(2) of this section is applicable to an 
individual position:
    (1) Career reserved positions include positions the principal duties 
of which involve day-to-day operations, without responsibility for or 
substantial involvement in the determination or public advocacy of the 
major controversial policies of the Administration or agency, in the 
following occupational disciplines:
    (i) Adjudication and appeals;
    (ii) Audit and inspection;
    (iii) Civil or criminal law enforcement and compliance;
    (iv) Contract administration and procurement;
    (v) Grants administration;
    (vi) Investigation and security matters; and
    (vii) Tax liability, including the assessment or collection of taxes 
and the preparation or review of interpretative opinions.
    (2) Career reserved positions also include:
    (i) Scientific or other highly technical or professional positions 
where the duties and responsibilities of the specific position are such 
that it must be filled by a career appointee to insure impartiality, of 
the Government.
    (ii) Other positions requiring impartiality, or the public's 
confidence in impartiality, as determined by an agency in light of its 
mission.
    (d) The Office of Personnel Management may review agency 
designations of general and career reserved positions. If the Office 
finds that an agency has designated any position as general that should 
be career reserved, it shall direct the agency to make the career 
reserved designation.
    (e) The minimum number of positions in the Senior Executive Service 
Governmentwide that must be career reserved is 3,571 as determined by 
the Director of the Office of Personnel Management under section 3133(e) 
of 5 U.S.C. To assure that this figure is met, the Office may establish 
a minimum number of career reserved positions for individual agencies. 
An agency must maintain or exceed this number unless it is adjusted by 
the Office.

[45 FR 62414, Sept. 19, 1980; 45 FR 83471, Dec. 19, 1980]



Sec.  214.403  Change of position type.

    An agency may not change the designation of an established position 
from career reserved to general, or from general to career reserved, 
without the prior approval of the Office of Personnel Management.



PART 230_ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT--Table of Contents




Subparts A-C [Reserved]

   Subpart D_Agency Authority To Take Personnel Actions in a National 
                                Emergency

Sec.
230.401 Agency authority to take personnel actions in a national 
          emergency disaster.

[[Page 82]]

230.402 Agency authority to make emergency-indefinite appointments in a 
          national emergency.

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577; 3 CFR 1954-1958 
Comp., p. 218; sec. 230.402 also issued under 5 U.S.C. 1104.

Subparts A-C [Reserved]



   Subpart D_Agency Authority To Take Personnel Actions in a National 
                                Emergency



Sec.  230.401  Agency authority to take personnel actions in a national emergency disaster.

    (a) Upon an attack on the United States, agencies are authorized to 
carry out whatever personnel activities may be necessary to the 
effective functioning of their organizations during a period of disaster 
without regard to any regulation or instruction of OPM, except those 
which become effective upon or following an attack on the United States. 
This authority applies only to actions under OPM jurisdiction.
    (b) Actions taken under this section shall be consistent with 
affected regulations and instructions as far as possible under the 
circumstances and shall be discontinued as soon as conditions permit the 
reapplication of the affected regulations and instructions.
    (c) An employee may not acquire a competitive civil service status 
by virtue of any action taken under this section.
    (d) Actions taken, and authority to take actions, under this section 
may be adjusted or terminated in whole or in part by OPM.
    (e) Agencies shall maintain records of the actions taken under this 
section.

[35 FR 5173, Mar. 27, 1970]



Sec.  230.402  Agency authority to make emergency-indefinite appointments in a national emergency.

    (a) When a national emergency exists--(1) Definition. A national 
emergency must meet all of the following conditions:
    (i) It was declared by the President or Congress.
    (ii) It involves a danger to the United States' safety, security, or 
stability that results from specified circumstances or conditions and 
that is national in scope.
    (iii) It requires a national program specifically intended to combat 
the threat to national safety, security, or stability.
    (2) Termination of a national emergency. A national emergency no 
longer exists if it is officially terminated by the President or 
Congress, or if the specific circumstances, conditions, or program cited 
in the original declaration are terminated or corrected.
    (b) Basic authority. Agencies may make emergency-indefinite 
appointments without OPM approval during any national emergency as 
defined in paragraph (a) of this section. The head of an agency with a 
defense-related mission may request OPM's approval to make emergency-
indefinite appointments without a declared national emergency when the 
President has authorized the call-up of some portion of the military 
reserves for some military purpose. The request must demonstrate that 
normal hiring procedures cannot meet surge employment requirements and 
that use of emergency-indefinite appointments is necessary for economy 
and efficiency. Except as provided by paragraphs (c) and (d) of this 
section, agencies must make emergency-indefinite appointments from 
appropriate registers of eligibles as long as there are available 
eligibles.
    (c) Appointment under direct-hire authority. An agency may make 
emergency-indefinite appointments under this section using the direct-
hire procedures in part 337 of this chapter.
    (d) Appointment noncompetitively. An agency may give emergency-
indefinite appointments under this section to the following classes of 
persons without regard to registers of eligibles and the provisions in 
Sec.  332.102 of this chapter:
    (1) Persons who were recruited on a standby basis prior to the 
national emergency;
    (2) Members of the National Defense Executive Reserve, designated in 
accordance with section 710(e) of the Defense Production Act of 1950, 
Executive Order 11179 of September 22, 1964, and applications issued by 
the agency authorized to implement the law and Executive Order; and

[[Page 83]]

    (3) Former Federal employees eligible for reinstatement.
    (e) Tenure of emergency-indefinite employees. (1) Emergency-
indefinite employees do not acquire a competitive status on the basis of 
their emergency-indefinite appointments.
    (2) An emergency-indefinite appointment may be continued for the 
duration of the emergency for which it is made.
    (f) Trial period. (1) The first year of service of an emergency-
indefinite employee is a trial period.
    (2) The agency may terminate the appointment of an emergency-
indefinite employee at any time during the trial period. The employee is 
entitled to the procedures set forth in Sec.  315.804 or Sec.  315.805 
of this chapter as appropriate.
    (g) Eligibility for within-grade increases. An emergency-indefinite 
employee serving in a position subject to the General Schedule is 
eligible for within-grade increases in accordance with subpart D of part 
531 of this chapter.
    (h) Applications of other regulations. (1) The term indefinite 
employee includes an emergency-indefinite employee or an employee under 
an emergency appointment as used in the following: parts 351, 353 of 
this chapter, subpart G of part 550 of this chapter, and part 752 of 
this chapter.
    (2) The selection procedures of part 337 of this chapter apply to 
emergency-indefinite appointments that use the direct-hire authority 
under paragraph (c) of this section.
    (3) Despite the provisions in Sec.  831.201(a)(11) of this chapter, 
an employee serving under an emergency-indefinite appointment under 
authority of this section is excluded from retirement coverage, except 
as provided in paragraph (b) of Sec.  831.201 of this chapter.
    (i) Promotion, demotion, or reassignment. An agency may promote, 
demote, or reassign an emergency-indefinite employee to any position for 
which it is making emergency-indefinite appointments.

(5 U.S.C. 1104; Pub. L. 95-454, sec. 3(5))

[44 FR 54691, Sept. 21, 1979, as amended at 60 FR 3057, Jan. 13, 1995; 
68 FR 35268, June 13, 2003; 69 FR 33275, June 15, 2004]



PART 250_PERSONNEL MANAGEMENT IN AGENCIES--Table of Contents




          Subpart A_Authority for Personnel Actions in Agencies

Sec.
250.101 Standards and requirements for agency personnel actions.
250.102 Delegation agreements.
250.103 Taking corrective action or suspending or withdrawing agency 
          authority.

Subpart B [Reserved]

                       Subpart C_Employee Surveys

250.301 Definitions.
250.302 Survey requirements.
250.303 Availability of results.

    Authority: 5 U.S.C. 1101 note, 1103(a)(5), 1104, 1302, 3301, 3302, 
7101 note; E.O. 13197, 66 FR 7853, 3 CFR 748 (2002); E.O. 10577, 12 FR 
1259, 3 CFR, 1954-1958 Comp., p. 218.

    Source: 58 FR 36119, July 6, 1993, unless otherwise noted.



          Subpart A_Authority for Personnel Actions in Agencies



Sec.  250.101  Standards and requirements for agency personnel actions.

    In taking a personnel action authorized by this chapter, each agency 
shall comply with the qualification standards and regulations issued by 
the Office of Personnel Management, the instructions published by OPM in 
the Guide to Processing Personnel Actions, and the provisions of any 
agreement development between OPM and the agency in connection with 
delegation of a specific authority. When a personnel action is being 
taken as a result of an order of a Court or a settlement agreement, or a 
decision or order of or a settlement agreement or an arbitral award 
reached under the labor arbitration process or the rules and regulations 
of the Merit Systems Protection Board, the Equal Employment Opportunity 
Commission, the Federal Labor Relations Authority, or OPM, the agency 
shall follow the instructions in the Guide to Processing Personnel 
Actions, and must comply with all other relevant substantive and 
documentary

[[Page 84]]

requirements, including those applicable to retirement, life insurance, 
and health benefits.

[58 FR 36119, July 6, 1993, as amended at 66 FR 66709, Dec. 27, 2001]



Sec.  250.102  Delegation agreements.

    In certain circumstances, an agency will receive authorities through 
a delegation agreement developed between the agency and OPM. The 
agreement will set forth the conditions for application of the delegated 
authorities. The agreement will include a description of minimum 
standards of performance and the system of oversight to be used by the 
agency and by OPM in monitoring the use of each delegated authority.



Sec.  250.103  Taking corrective action or suspending or withdrawing agency authority.

    If OPM finds that an agency has taken an action contrary to a law, 
rule, regulation, or standard which OPM administers, it may require the 
agency to take corrective action. OPM may suspend or withdraw any 
authority granted under this chapter to an agency, including any 
authority granted by delegation agreement, when it finds that the agency 
has not complied with qualification standards issued by OPM, the 
instructions published by OPM, or the regulations in this chapter; or 
that the suspension or withdrawal is in the interest of the service for 
any other reason. OPM may suspend or revoke a delegation agreement 
established under Sec.  250.102 at any time, if it judges that the 
agency is not adhering to the provisions of the agreement.

[58 FR 36119, July 6, 1993, as amended at 66 FR 66709, Dec. 27, 2001]

Subpart B [Reserved]



                       Subpart C_Employee Surveys

    Source: 71 FR 49981, Aug. 24, 2006, unless otherwise noted.



Sec.  250.301  Definitions.

    In this part--
    Agency means an executive agency as defined in 5 U.S.C. 105.
    Executives are members of the Senior Executive Service or 
equivalent.
    Leaders are an agency's management team. This includes anyone with 
supervisory or managerial duties.
    Managers are those individuals in management positions who typically 
supervise one or more supervisors.
    Organization means an agency, office, or division.
    Supervisors are first-line supervisors who do not supervise other 
supervisors; typically those who are responsible for employees' 
performance appraisals and approval of their leave.
    Team leaders are those who provide employees with day-to-day 
guidance in work projects, but do not have supervisory responsibilities 
or conduct performance appraisals.
    Work unit means an immediate work unit headed by an immediate 
supervisor.



Sec.  250.302  Survey requirements.

    (a) Each executive agency must conduct an annual survey of its 
employees containing the definitions and each question in this subpart.
    (b) Each executive agency may include survey questions unique to the 
agency in addition to the prescribed employee survey questions under 
paragraph (c) of this section.
    (c) The definitions and 45 prescribed employee survey questions and 
response choices are listed in the following tables:

------------------------------------------------------------------------
              Key terms                           Definitions
------------------------------------------------------------------------
Agency...............................  An executive agency as defined in
                                        5 U.S.C. 105.
Executives...........................  Members of the Senior Executive
                                        Service or equivalent.
Leaders..............................  An agency's management team. This
                                        includes anyone with supervisory
                                        or managerial duties.
Managers.............................  Those individuals in management
                                        positions who typically
                                        supervise one or more
                                        supervisors.
Organization.........................  An agency, office, or division.
Supervisors..........................  First-line supervisors who do not
                                        supervise other supervisors;
                                        typically those who are
                                        responsible for employees'
                                        performance appraisals and
                                        approval of their leave.

[[Page 85]]

 
Team leaders.........................  Those who provide employees with
                                        day-to-day guidance in work
                                        projects, but do not have
                                        supervisory responsibilities or
                                        conduct performance appraisals.
Work unit............................  An immediate work unit headed by
                                        an immediate supervisor.
------------------------------------------------------------------------


------------------------------------------------------------------------
       Employee survey questions            Employee response choices
------------------------------------------------------------------------
                        Personal Work Experiences
------------------------------------------------------------------------
(1) The people I work with cooperate to  Strongly Agree, Agree, Neither
 get the job done.                        Agree Nor Disagree, Disagree,
                                          or Strongly Disagree.
(2) I am given a real opportunity to     Strongly Agree, Agree, Neither
 improve my skills in my organization.    Agree Nor Disagree, Disagree,
                                          or Strongly Disagree.
(3) My work gives me a feeling of        Strongly Agree, Agree, Neither
 personal accomplishment.                 Agree Nor Disagree, Disagree,
                                          or Strongly Disagree.
(4) I like the kind of work I do.......  Strongly Agree, Agree, Neither
                                          Agree Nor Disagree, Disagree,
                                          or Strongly Disagree.
(5) I have trust and confidence in my    Strongly Agree, Agree, Neither
 supervisor.                              Agree Nor Disagree, Disagree,
                                          or Strongly Disagree.
(6) Overall, how good a job do you feel  Very Good, Good, Fair, Poor, or
 is being done by your immediate          Very Poor.
 supervisor/team leader?
------------------------------------------------------------------------
                  Recruitment, Development & Retention
------------------------------------------------------------------------
(7) The workforce has the job-relevant   Strongly Agree, Agree, Neither
 knowledge and skills necessary to        Agree Nor Disagree, Disagree,
 accomplish organizational goals.         Strongly Disagree, or Do Not
                                          Know.
(8) My work unit is able to recruit      Strongly Agree, Agree, Neither
 people with the right skills.            Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(9) I know how my work relates to the    Strongly Agree, Agree, Neither
 agency's goals and priorities.           Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(10) The work I do is important........  Strongly Agree, Agree, Neither
                                          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(11) Physical conditions (for example,   Strongly Agree, Agree, Neither
 noise level, temperature, lighting,      Agree Nor Disagree, Disagree,
 cleanliness in the workplace) allow      Strongly Disagree, or Do Not
 employees to perform their jobs well.    Know.
(12) Supervisors/team leaders in my      Strongly Agree, Agree, Neither
 work unit support employee development.  Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(13) My talents are used well in the     Strongly Agree, Agree, Neither
 workplace.                               Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(14) My training needs are assessed....  Strongly Agree, Agree, Neither
                                          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
------------------------------------------------------------------------
                           Performance Culture
------------------------------------------------------------------------
(15) Promotions in my work unit are      Strongly Agree, Agree, Neither
 based on merit.                          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(16) In my work unit, steps are taken    Strongly Agree, Agree, Neither
 to deal with a poor performer who        Agree Nor Disagree, Disagree,
 cannot or will not improve.              Strongly Disagree, or Do Not
                                          Know.
(17) Creativity and innovation are       Strongly Agree, Agree, Neither
 rewarded.                                Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(18) In my most recent performance       Strongly Agree, Agree, Neither
 appraisal, I understood what I had to    Agree Nor Disagree, Disagree,
 do to be rated at different              Strongly Disagree, or No Basis
 performance levels (e.g., Fully          to Judge.
 Successful, Outstanding).
(19) In my work unit, differences in     Strongly Agree, Agree, Neither
 performance are recognized in a          Agree Nor Disagree, Disagree,
 meaningful way.                          Strongly Disagree, or Do Not
                                          Know.
(20) Pay raises depend on how well       Strongly Agree, Agree, Neither
 employees perform their jobs.            Agree Nor Disagree, Disagree,
                                          Strongly Disagree or Do Not
                                          Know.
(21) My performance appraisal is a fair  Strongly Agree, Agree, Neither
 reflection of my performance.            Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(22) Discussions with my supervisor/     Strongly Agree, Agree, Neither
 team leader about my performance are     Agree Nor Disagree, Disagree,
 worthwhile.                              Strongly Disagree, or Do Not
                                          Know.
(23) Managers/supervisors/team leaders   Strongly Agree, Agree, Neither
 work well with employees of different    Agree Nor Disagree, Disagree,
 backgrounds.                             Strongly Disagree, or Do Not
                                          Know.
(24) My supervisor supports my need to   Strongly Agree, Agree, Neither
 balance work and family issues.          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
------------------------------------------------------------------------
                               Leadership
------------------------------------------------------------------------
(25) I have a high level of respect for  Strongly Agree, Agree, Neither
 my organization's senior leaders.        Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(26) In my organization, leaders         Strongly Agree, Agree, Neither
 generate high levels of motivation and   Agree Nor Disagree, Disagree,
 commitment in the workforce.             Strongly Disagree, or Do Not
                                          Know.
(27) Managers review and evaluate the    Strongly Agree, Agree, Neither
 organization's progress toward meeting   Agree Nor Disagree, Disagree,
 its goals and objectives.                Strongly Disagree, or Do Not
                                          Know.

[[Page 86]]

 
(28) Employees are protected from        Strongly Agree, Agree, Neither
 health and safety hazards on the job.    Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(29) Employees have a feeling of         Strongly Agree, Agree, Neither
 personal empowerment with respect to     Agree Nor Disagree, Disagree,
 work processes.                          Strongly Disagree, or Do Not
                                          Know.
(30) My workload is reasonable.........  Strongly Agree, Agree, Neither
                                          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(31) Managers communicate the goals and  Strongly Agree, Agree, Neither
 priorities of the organization.          Agree Nor Disagree, Disagree,
                                          Strongly Disagree, or Do Not
                                          Know.
(32) My organization has prepared        Strongly Agree, Agree, Neither
 employees for potential security         Agree Nor Disagree, Disagree,
 threats.                                 Strongly Disagree, or Do Not
                                          Know.
------------------------------------------------------------------------
                            Job Satisfaction
------------------------------------------------------------------------
(33) How satisfied are you with the      Very Satisfied, Satisfied,
 information you receive from             Neither Satisfied Nor
 management on what's going on in your    Dissatisfied, Dissatisfied, or
 organization?                            Very Dissatisfied.
(34) How satisfied are you with your     Very Satisfied, Satisfied,
 involvement in decisions that affect     Neither Satisfied Nor
 your work?                               Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(35) How satisfied are you with your     Very Satisfied, Satisfied,
 opportunity to get a better job in       Neither Satisfied Nor
 your organization?                       Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(36) How satisfied are you with the      Very Satisfied, Satisfied,
 recognition you receive for doing a      Neither Satisfied Nor
 good job?                                Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(37) How satisfied are you with the      Very Satisfied, Satisfied,
 policies and practices of your senior    Neither Satisfied Nor
 leaders?                                 Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(38) How satisfied are you with the      Very Satisfied, Satisfied,
 training you receive for your present    Neither Satisfied Nor
 job?                                     Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(39) Considering everything, how         Very Satisfied, Satisfied,
 satisfied are you with your job?         Neither Satisfied Nor
                                          Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
(40) Considering everything, how         Very Satisfied, Satisfied,
 satisfied are you with your pay?         Neither Satisfied Nor
                                          Dissatisfied, Dissatisfied, or
                                          Very Dissatisfied.
------------------------------------------------------------------------
         Demographics (for agencies with 800 or more employees)
------------------------------------------------------------------------
(41) What is your supervisory status?..  a. Non-Supervisor: You do not
                                          supervise other employees.
                                         b. Team Leader: You are not an
                                          official supervisor; you
                                          provide employees with day-to-
                                          day guidance in work projects,
                                          but do not have supervisory
                                          responsibilities or conduct
                                          performance appraisals.
                                         c. Supervisor: You are
                                          responsible for employees'
                                          performance appraisals and
                                          approval of their leave, but
                                          you do not supervise other
                                          supervisors.
                                         d. Manager: You are in a
                                          management position and
                                          supervise one or more
                                          supervisors.
                                         e. Executive: Member of the
                                          Senior Executive Service or
                                          equivalent.
(42) Are you...........................  a. Male.
                                         b. Female.
(43) Are you Hispanic or Latino?.......  a. Yes.
                                         b. No.
(44) Please select the racial category   a. White.
 or categories with which you most       b. Black or African American.
 closely identify (Please select one or  c. Native Hawaiian or other
 more).                                   Pacific Islander.
                                         d. Asian.
                                         e. American Indian or Alaska
                                          Native.
(45) What is your agency subcomponent?   An agency provided list of
 (If Applicable).                         major divisions, bureaus, or
                                          other components one level
                                          below the agency/department.
------------------------------------------------------------------------



Sec.  250.303  Availability of results.

    (a) Each agency will make the results of its annual survey available 
to the public and post the results on its Web site, unless the agency 
head determines that doing so would jeopardize or negatively impact 
national security. The posted survey results will include the following:
    (1) The agency's evaluation of its survey results;
    (2) How the survey was conducted;
    (3) Description of the employee sample, unless all employees are 
surveyed;
    (4) The survey questions and response choices with the prescribed 
questions identified;
    (5) The number of employees surveyed and number of survey 
respondents; and
    (6) The number of respondents for each survey question and each 
response choice.

[[Page 87]]

    (b) Data must be collected by December 31 of each calendar year. 
Each agency must post the beginning and ending dates of its employee 
survey and either the survey results described in paragraph (a) of this 
section or a statement noting the decision not to post no later than 120 
days after the agency completes survey administration. OPM may extend 
this date under unusual circumstances.
    (c) Each agency must submit its survey results to OPM no later than 
120 days after the agency completes survey administration.



PART 251_AGENCY RELATIONSHIPS WITH ORGANIZATIONS REPRESENTING FEDERAL EMPLOYEES AND OTHER ORGANIZATIONS--Table of Contents




                      Subpart A_General Provisions

Sec.
251.101 Introduction.
251.102 Coverage.
251.103 Definitions.

    Subpart B_Relationships With Organizations Representing Federal 
                    Employees and Other Organizations

251.201 Associations of management officials and/or supervisors.
251.202 Agency support to organizations representing Federal employees 
          and other organizations.

                       Subpart C_Dues Withholding

251.301 Associations of management officials and/or supervisors.
251.302 All other organizations.

    Authority: 5 U.S.C. 1104; 5 U.S.C. Chap 7; 5 U.S.C. 7135; 5 U.S.C. 
7301; and E.O. 11491.

    Source: 61 FR 32915, June 26, 1996, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  251.101  Introduction.

    (a) The regulations in this part apply to all Federal executive 
branch departments and agencies and their officers and employees.
    (b) This part provides a framework for consulting and communicating 
with non-labor organizations representing Federal employees and with 
other organizations on matters related to agency operations and 
personnel management.
    (c) The purposes of consultation and communication are: the 
improvement of agency operations, personnel management, and employee 
effectiveness; the exchange of information (e.g., ideas, opinions, and 
proposals); and the establishment of policies that best serve the public 
interest in accomplishing the mission of the agency.
    (d) An agency's consultation and communication with organizations 
representing Federal employees and with other organizations under this 
part may not take on the character of negotiations or consultations 
regarding conditions of employment of bargaining unit employees, which 
is reserved exclusively to labor organizations as provided for in 
Chapter 71 of title 5 of the U.S. Code or comparable provisions of other 
laws. The regulations in this part do not authorize any actions 
inconsistent with Chapter 71 of the U.S. Code or comparable provisions 
of other laws.
    (e) The head of a Federal agency may determine that it is in the 
interest of the agency to consult, from time to time, with organizations 
other than labor organizations and associations of management officials 
and/or supervisors to the extent permitted by law. Under section 7(d)(2) 
and (3) of Executive Order 11491, as amended, recognition of a labor 
organization does not preclude an agency from consulting or dealing with 
a veterans organization, or with a religious, social, fraternal, 
professional, or other lawful association, not qualified as a labor 
organization, with respect to matters or policies which involve 
individual members of the organization or association or are of 
particular applicability to it or its members.
    (f) Federal employees, including management officials and 
supervisors, may communicate with any Federal agency, officer, or other 
Federal entity on the employee's own behalf. However, Federal employees 
should be aware that 18 U.S.C. 205, in pertinent part, restricts Federal 
employees from acting, other than in the proper discharge of their 
official duties, as agents or attorneys for any person or

[[Page 88]]

organization other than a labor organization, before any Federal agency 
or other Federal entity in connection with any matter in which the 
United States is a party or has a direct and substantial interest. An 
exception to the prohibition found in 18 U.S.C. 205 permits Federal 
employees to represent certain nonprofit organizations before the 
Government except in connection with specified matters. Agency officials 
and employees are therefore advised to consult with their designated 
agency ethics officials for guidance regarding any conflicts of interest 
that may arise.

[61 FR 32915, June 26, 1996, as amended at 63 FR 2306, Jan. 15, 1998]



Sec.  251.102  Coverage.

    To be covered by this part, an association or organization:
    (a) Must be a lawful, nonprofit organization whose constitution and 
bylaws indicate that it subscribes to minimum standards of fiscal 
responsibility and employs democratic principles in the nomination and 
election of officers;
    (b) Must not discriminate in terms of membership or treatment 
because of race, color, religion, sex, national origin, age, or 
handicapping condition;
    (c) Must not assist or participate in a strike, work stoppage, or 
slowdown against the Government of the United States or any agency 
thereof or impose a duty or obligation to conduct, assist, or 
participate in such strike, work stoppage, or slowdown; and
    (d) Must not advocate the overthrow of the constitutional form of 
Government of the United States.



Sec.  251.103  Definitions.

    (a) Organization representing Federal employees and other 
organizations means an organization other than a labor organization that 
can provide information, views, and services which will contribute to 
improved agency operations, personnel management, and employee 
effectiveness. Such an organization may be an association of Federal 
management officials and/or supervisors, a group representing 
minorities, women or persons with disabilities in connection with the 
agencies' EEO programs and action plans, a professional association, a 
civic or consumer group, and organization concerned with special social 
interests, and the like.
    (b) Association of management officials and/or supervisors means an 
association comprised primarily of Federal management officials and/or 
supervisors, which is not eligible for recognition under Chapter 71 of 
title 5 of the U.S. Code or comparable provisions of other laws, and 
which is not affiliated with a labor organization or federation of labor 
organizations.
    (c) Labor organization means an organization as defined in 5 U.S.C. 
7103(a)(4), which is in compliance with 5 U.S.C. 7120, or as defined in 
comparable provisions of other laws.



    Subpart B_Relationships With Organizations Representing Federal 
                    Employees and Other Organizations



Sec.  251.201  Associations of management officials and/or supervisors.

    (a) As part of agency management, supervisors and managers should be 
included in the decision-making process and notified of executive-level 
decisions on a timely basis. Each agency must establish and maintain a 
system for intra-management communication and consultation with its 
supervisors and managers. Agencies must also establish consultative 
relationships with associations whose membership is primarily composed 
of Federal supervisory and/or managerial personnel, provided that such 
associations are not affiliated with any labor organization and that 
they have sufficient agency membership to assure a worthwhile dialogue 
with executive management. Consultative relationships with other non-
labor organizations representing Federal employees are discretionary.
    (b) Consultations should have as their objectives the improvement of 
managerial effectiveness and the working conditions of supervisors and 
managers, as well as the identification and resolution of problems 
affecting agency operations and employees, including supervisors and 
managers.
    (c) The system of communication and consultation should be designed 
so that individual supervisors and managers are able to participate if 
they are not

[[Page 89]]

affiliated with an association of management officials and/or 
supervisors. At the same time, the voluntary joining together of 
supervisory and management personnel in groups of associations shall not 
be precluded or discouraged.



Sec.  251.202  Agency support to organizations representing Federal employees and other organizations.

    (a) An agency may provide support services to an organization when 
the agency determines that such action would benefit the agency's 
programs or would be warranted as a service to employees who are members 
of the organization and complies with applicable statutes and 
regulations. Examples of such support services are as follows:
    (1) Permitting employees, in appropriate cases, to use agency 
equipment or administrative support services for preparing papers to be 
presented at conferences or symposia or published in journals;
    (2) Using the authority under 5 U.S.C. 4109 and 4110, as implemented 
by 5 CFR part 410, to pay expenses of employees to attend professional 
organization meetings when such attendance is for the purpose of 
employee development or directly concerned with agency functions or 
activities and the agency can derive benefits from employee attendance 
at such meetings; and
    (3) Following a liberal policy in authorizing excused absence for 
other employees who are willing to pay their own expenses to attend a 
meeting of a professional association or other organization from which 
an agency could derive some benefits.
    (b) Agencies may provide Government resources support to 
organizations (such as space in Government facilities for meeting 
purposes and the use of agency bulletin boards, internal agency mail 
distribution systems, electronic bulletin boards and other means of 
informing agency employees about meetings and activities) in accordance 
with appropriate General Services Administration regulations contained 
in title 41 of the Code of Federal Regulations. The mere provision of 
such support to any organization is not to be construed as Federal 
sponsorship, sanction, or endorsement of the organization or its 
activities.



                       Subpart C_Dues Withholding



Sec.  251.301  Associations of management officials and/or supervisors.

    Dues withholding for associations of management officials and/or 
supervisors is covered in 5 CFR 550.331.



Sec.  251.302  All other organizations.

    Under 5 CFR 550.311(b), an agency may permit an employee to make an 
allotment for any legal purpose deemed appropriate by the head of the 
agency. Agencies may provide for the allotment of dues for organizations 
representing Federal employees under that section.



PART 293_PERSONNEL RECORDS--Table of Contents




      Subpart A_Basic Policies on Maintenance of Personnel Records

Sec.
293.101 Purpose and scope.
293.102 Definitions.
293.103 Recordkeeping standards.
293.104 Collection of information.
293.105 Restrictions on collection and use of information.
293.106 Safeguarding information about individuals.
293.107 Special safeguards for automated records.
293.108 Rules of conduct.

         Subpart B_Personnel Records Subject to the Privacy Act

293.201 Purpose.
293.202 Records subject to Office or agency Privacy Act regulations.
293.203 Review of Office or agency practices.

                   Subpart C_Official Personnel Folder

293.301 Applicability of regulations.
293.302 Establishment of Official Personnel Folder.
293.303 Ownership of folder.
293.304 Maintenance and content of folder.
293.305 Type of folder to be used.
293.306 Use of existing folders upon transfer or reemployment.
293.307 Disposition of folders of former Federal employees.
293.308 Removal of temporary records from OPFs.
293.309 Reconstruction of lost OPFs.
293.310 Response to requests for information.

[[Page 90]]

293.311 Availability of information.

           Subpart D_Employee Performance File System Records

293.401 Applicability of regulations.
293.402 Establishment of separate employee performance record system.
293.403 Contents of employee performance files.
293.404 Retention schedule.
293.405 Disposition of records.
293.406 Disclosure of records.

             Subpart E_Employee Medical File System Records

293.501 Applicability of regulations.
293.502 Definitions.
293.503 Implementing instructions.
293.504 Composition of, and access to, the Employee Medical File System.
293.505 Establishment and protection of Employee Medical Folder.
293.506 Ownership of the Employee Medical Folder.
293.507 Maintenance and content of the Employee Medical Folder.
293.508 Type of folder to be used.
293.509 Use of existing Employee Medical Folders upon transfer or 
          reemployment.
293.510 Disposition of Employee Medical Folders.
293.511 Retention schedule.

    Authority: 5 U.S.C. 552 and 4315; E.O. 12107 (December 28, 1978), 3 
CFR 1954-1958 Comp.; 5 U.S.C. 1103, 1104, and 1302; 5 CFR 7.2; E.O. 
9830; 3 CFR 1943-1948 Comp.; 5 U.S.C. 2951(2) and 3301; and E.O. 12107.

    Source: 44 FR 65033, Nov. 9, 1979, unless otherwise noted.



      Subpart A_Basic Policies on Maintenance of Personnel Records



Sec.  293.101  Purpose and scope.

    (a) This subpart sets forth basic policies governing the creation, 
development, maintenance, processing, use, dissemination, and 
safeguarding of personnel records which the Office of Personnel 
Management requires agencies to maintain in the personnel management or 
personnel policy setting process.
    (b) Agencies in the Executive Branch of the Federal Government are 
subject to specific Office of Personnel Management recordkeeping 
requirements to varying degrees, pursuant to statute, Office regulation, 
or formal agreements between the Office and agencies. This subpart 
applies to any department or independent establishment in the Executive 
Branch of the Federal Government, including a government corporation or 
Government controlled corporation, except those specifically excluded 
from Office recordkeeping requirements by statute, Office regulation, or 
formal agreement between the Office and that agency.



Sec.  293.102  Definitions.

    In this part:
    Agency means any executive department, military department, 
Government corporation, Government controlled corporation, or other 
establishment in the Executive Branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency;
    Data subject means the individual about whom the Office or agency is 
maintaining information in a system of records;
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence;
    Information means papers, records, photographs, magnetic storage 
media, micro storage media, and other documentary materials regardless 
of physical form or characteristics, containing data about an individual 
and required by the Office in pursuance of law or in connection with the 
discharge of official business, as defined by statute, regulation, or 
administrative procedure;
    Maintain includes collect, use, or disseminate;
    Office means the Office of Personnel Management;
    Personnel record means any record concerning an individual which is 
maintained an used in the personnel management or personnel 
policysetting process. (For purposes of this part, this term is not 
limited just to those personnel records in a system of records and 
subject to the Privacy Act);
    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, his or her education, financial transactions, medical 
history, criminal history, or employment history;

[[Page 91]]

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



Sec.  293.103  Recordkeeping standards.

    (a) The head of each agency shall ensure that persons having access 
to or involved in the creation, development, processing, use, or 
maintenance of personnel records are informed of pertinent recordkeeping 
regulations and requirements of the Office of Personnel Management and 
the agency. Authority to maintain personnel records does not constitute 
authority to maintain information in the record merely because it may be 
useful; both Government-wide and internal agency personnel records shall 
contain only information concerning an individual that is relevant and 
necessary to accomplish the Federal personnel management purposes 
required by statute, Executive order, or Office regulation.
    (b) The Office is responsible for establishing minimum standards of 
accuracy, relevancy, necessity, timeliness, and completeness for 
personnel records it requires agencies to maintain. These standards are 
discussed in appropriate chapters of the Guide to Personnel 
Recordkeeping. Before approval of any agency requests for changes in 
recordkeeping practices governed by the Guide to Personnel 
Recordkeeping, the Office will examine the proposal or request in the 
context of such standards set forth by the agency in support of the 
proposal and in light of the personnel program area that requires these 
records.

[44 FR 65033, Nov. 9, 1979, as amended at 66 FR 66709, Dec. 27, 2001]



Sec.  293.104  Collection of information.

    (a) Any information in personnel records whether or not those 
records are in a system of records, used in whole or in part in making a 
determination about an individual's rights, benefits, or privileges 
under Federal personnel programs should, to the greatest extent 
practicable, be collected directly from the individual concerned. 
Factors to be considered in determining whether to collect the data from 
the individual concerned or a third party are when:
    (1) The nature of the information is such that it can only be 
obtained from another party;
    (2) The cost of collecting the information directly from the 
individual is unreasonable when compared with the cost of collecting it 
from another party;
    (3) There is virtually no risk that information collected from other 
parties, if inaccurate, could result in a determination adverse to the 
individual concerned;
    (4) The information supplied by an individual must be verified by 
another party; or
    (5) There are provisions made, to the greatest extent practicable, 
to vertify information collected from another party with the individual 
concerned.



Sec.  293.105  Restrictions on collection and use of information.

    (a) First Amendment. Personnel records describing how individuals 
exercise rights guaranteed by the First Amendment are prohibited unless 
expressly authorized by statute, or by the individual concerned, or 
unless pertinent to and within the scope of an authorized law 
enforcement activity. These rights include, but are not limited to, free 
exercise of religious and political beliefs, freedom of speech and the 
press, and freedom to assemble and to petition the government.
    (b) Social Security Number.
    (1) Agencies may not require individuals to disclose their Social 
Security Number unless disclosure would be required;
    (i) Under Federal statute; or
    (ii) Under any statute, Executive order, or regulation that 
authorizes any Federal, State, or local agency maintaining a system of 
records that was in existence and operating prior to January 1, 1975, to 
request the Social Security Number as a necessary means of verifying the 
identity of an individual.
    (2) Individuals asked to voluntarily (circumstances not covered by 
paragraph (b)(1) of this section) provide

[[Page 92]]

their Social Security Number shall suffer no penalty or denial of 
benefits for refusing to provide it.



Sec.  293.106  Safeguarding information about individuals.

    (a) To ensure the security and confidentiality of personnel records, 
in whatever form, each agency shall establish administrative, technical, 
and physical controls to protect information in personnel records from 
unauthorized access, use, modification, destruction, or disclosure. As a 
minimum, these controls shall require that all persons whose official 
duties require access to and use of personnel records be responsible and 
accountable for safeguarding those records and for ensuring that the 
records are secured whenever they are not in use or under the direct 
control of authorized persons. Generally, personnel records should be 
held, processed, or stored only where facilities and conditions are 
adequate to prevent unauthorized access.
    (b) Personnel records must be stored in metal filing cabinets which 
are locked when the records are not in use, or in a secured room. 
Alternative storage facilities may be employed provided they furnish an 
equivalent or greater degree of security than these methods. Except for 
access by the data subject, only employees whose official duties require 
access shall be allowed to handle and use personnel records, in whatever 
form or media the records might appear. To the extent feasible, entry 
into personnel record storage areas shall be similarly limited. 
Documentation of the removal of records from storage areas must be kept 
so that adequate control procedures can be established to assure that 
removed records are returned on a timely basis.
    (c) Disposal and destruction of personnel records shall be in 
accordance with the General Record Schedule issued by the General 
Services Administration for the records or, alternatively, with Office 
or agency records control schedules approved by the National Archives 
and Records Service of the General Services Administration.



Sec.  293.107  Special safeguards for automated records.

    (a) In addition to following the security requirements of Sec.  
293.106 of this part, managers of automated personnel records shall 
establish administrative, technical, physical, and security safeguards 
for data about individuals in automated records, including input and 
output documents, reports, punched cards, magnetic tapes, disks, and on-
line computer storage. The safeguards must be in writing to comply with 
the standards on automated data processing physical security issued by 
the National Bureau of Standards, U.S. Department of Commerce, and, as a 
minimum, must be sufficient to:
    (1) Prevent careless, accidental, or unintentional disclosure, 
modification, or destruction of identifiable personal data;
    (2) Minimize the risk that skilled technicians or knowledgeable 
persons could improperly obtain access to, modify, or destroy 
identifiable personnel data;
    (3) Prevent casual entry by unskilled persons who have no official 
reason for access to such data;
    (4) Minimize the risk of an unauthorized disclosure where use is 
made of identifiable personal data in testing of computer programs;
    (5) Control the flow of data into, through, and from agency computer 
operations;
    (6) Adequately protect identifiable data from environmental hazards 
and unneccessary exposure; and
    (7) Assure adequate internal audit procedures to comply with these 
procedures.
    (b) The disposal of identifiable personal data in automated files is 
to be accomplished in such a manner as to make the data unobtainable to 
unauthorized personnel. Unneeded personal data stored on reusable media 
such as magnetic tapes and disks must be erased prior to release of the 
media for reuse.



Sec.  293.108  Rules of conduct.

    (a) Scope. These rules of conduct apply to all Office and agency 
employees responsible for creation, development, maintenance, 
processing, use,

[[Page 93]]

dissemination, and safeguarding of personnel records. The Office and 
agencies shall require that such employees are familiar with these and 
appropriate supplemental agency internal regulations.
    (b) Standards of conduct. Office and agency employees whose official 
duties involve personnel records shall be sensitive to individual rights 
to personal privacy and shall not disclose information from any 
personnel record unless disclosure is part of their official duties or 
required by executive order, regulation, or statute (e.g., required by 
the Freedom of Information Act, 5 U.S.C. 552).
    (c) Improper uses of personnel information. Any Office or agency 
employee who makes a disclosure of personnel records knowing that such 
disclosure is unauthorized, or otherwise knowingly violates these 
regulations, shall be subject to disciplinary action and may also be 
subject to criminal penalties where the records are subject to the 
Privacy Act (5 U.S.C. 552a). Employees are prohibited from using 
personnel information not available to the public, gained through 
official duties, for commercial solicitation or sale, or for personal 
gain.



         Subpart B_Personnel Records Subject to the Privacy Act



Sec.  293.201  Purpose.

    The purpose of this subpart is to set forth the criteria to be used 
to determine when personnel records on individuals are subject both to 
the regulations contained in this part and to Office or agency 
regulations implementing the Privacy Act of 1974, 5 U.S.C. 552a. When 
personnel records are maintained within a system of records, the records 
are deemed to be within the scope of both the regulations in this part 
and Office or agency regulations implementing the Privacy Act.



Sec.  293.202  Records subject to Office or agency Privacy Act regulations.

    When the Office of Personnel Management publishes in the Federal 
Register a notice of system of records for personnel records which are 
maintained by the agencies or by the Office, that system of records will 
be subject to the regulations in this part and also to the regulations 
in part 297 of this chapter. When agencies publish a notice of system of 
records for personnel records required by the Office that are not 
included in the Office's notices, those agency systems of records will 
be subject both to the regulations contained in this part and to agency 
promulgated regulations that implement the Privacy Act.



Sec.  293.203  Review of Office or agency practices.

    Reviews of agency personnel management policies and practices will 
be conducted to insure compliance with Office regulations. The Office 
may direct agencies to take whatever corrective action is necessary. 
Office or agency officials who have knowledge of violations of these 
regulations shall take whatever corrective action is necessary. Agencies 
shall list officials of the Office of Personnel Management as a routine 
user for personnel records to assist the Office in its oversight 
responsibilities.



                   Subpart C_Official Personnel Folder

    Authority: 5 U.S.C. 552, 5 U.S.C. 552a; E.O. 12107 (December 28, 
1978); 5 U.S.C. 1302, 3 CFR 1954-1958 Compilation; 5 CFR 7.2; E.O. 9830; 
3 CFR 1943-1948 Compilation.

    Source: 50 FR 3309, Jan. 24, 1985, unless otherwise noted.



Sec.  293.301  Applicability of regulations.

    This subpart applies to, and within this subpart agency means, each 
executive department and independent establishment of the Federal 
Government, each corporation wholly owned or controlled by the United 
States, and with respect to positions subject to civil service rules and 
regulations, the legislative and judicial branches of the Federal 
Government.



Sec.  293.302  Establishment of Official Personnel Folder.

    Each agency shall establish an Official Personnel Folder (OPF) for 
each employee occupying a position subject to this part, except as 
provided in Sec.  293.306. Except as provided in the Guide to Personnel 
Recordkeeping,

[[Page 94]]

there will be only one OPF maintained for each employee regardless of 
service in various agencies.

[50 FR 3309, Jan. 24, 1985, as amended at 66 FR 66709, Dec. 27, 2001]



Sec.  293.303  Ownership of folder.

    The OPF of each employee in a position subject to civil service 
rules and regulations is under the jurisdiction and control of, and is 
part of the records of, the Office of Personnel Management (the Office).



Sec.  293.304  Maintenance and content of folder.

    The head of each agency shall maintain in the Official Personnel 
Folder the reports of selection and other personnel actions named in 
section 2951 of title 5, United States Code. The folder shall contain 
long-term records affecting the employee's status and service as 
required by OPM's instructions and as designated in the Guide to 
Personnel Recordkeeping.

[58 FR 65533, Dec. 15, 1993]



Sec.  293.305  Type of folder to be used.

    Each agency shall use only OPFs from Office of Federal Supply and 
Services stock (Standard Form 66) for the folders required by this part.



Sec.  293.306  Use of existing folders upon transfer or reemployment.

    When an agency hires a person who has served on or after April 1, 
1947, in a position subject to this part, it shall request the transfer 
of the OPF pertaining to the person's employment. The folder so obtained 
shall be used in lieu of establishing a new OPF. In the event that the 
prior service occurred wholly before April 1, 1947, the agency shall 
request any files or records that may be located in the Federal records 
storage center. The request shall note that because of the dates of 
service there will likely be no OPF. Any such file or record found for 
this individual shall be incorporated into the OPF being established for 
the employee.
    (a) When a person for whom an OPF has been established transfers 
from one agency to another, the last employing (losing) agency shall, on 
request, transfer the OPF to the new employing agency.
    (b) Before transferring the Official Personnel Folder, the losing 
agency shall:
    (1) Remove those records of a temporary nature filed on the left 
side of the folder, except for PMRS employees' performance ratings of 
record including the performance plan on which the most recent rating 
was based;
    (2) Transfer performance ratings of record and the performance plan 
on which the most recent rating was based from the Employee Performance 
File of PMRS employees to their Official Personnel Folder, if the 
ratings and plans are not maintained by the agency in the Official 
Personnel Folder; and
    (3) Ensure that all permanent documents of the folder are complete, 
correct, and present in the folder in accordance with the Guide to 
Personnel Recordkeeping.

[50 FR 3309, Jan. 24, 1985, as amended at 50 FR 35494, Aug. 30, 1985; 66 
FR 66709, Dec. 27, 2001]



Sec.  293.307  Disposition of folders of former Federal employees.

    (a) Folders of persons separated from Federal employment must be 
retained by the losing agency for 30 working days after separation, and 
may be retained for additional 60 days (90 days where administratively 
necessary, e.g., where an appeal or an allegation of discrimination is 
made or where an employee retires or dies in service). Thereafter, the 
OPF must be transferred to the General Services Administration, National 
Personnel Records Center (Civilian Personnel Records), 111 Winnebago 
Street, St. Louis, Missouri 63118.
    (b) When a former Federal employee is reappointed in the Federal 
service, the National Personnel Records Center (Civilian Personnel 
Records) shall, upon request, transfer the OPF to the new employing 
agency.

[50 FR 3309, Jan. 24, 1985; 50 FR 8993, Mar. 6, 1985]



Sec.  293.308  Removal of temporary records from OPFs.

    The employing agency having possession of an OPF shall remove 
temporary

[[Page 95]]

records from the OPF before it is transferred to another agency. For 
these and also for temporary records of their current employees, 
maintenance of the records shall be in accordance with General Records 
Schedule 1, promulgated by the General Services Administration.



Sec.  293.309  Reconstruction of lost OPFs.

    Agencies will take necessary precautions to safeguard all OPFs. In 
the event of a lost or destroyed OPF, the current (or last, in the case 
of a former Federal employee) employing agency shall take the necessary 
action to reconstruct the essential portions of the OPF as specified in 
the Guide to Personnel Recordkeeping or other Office instructions.

[50 FR 3309, Jan. 24, 1985, as amended at 66 FR 66709, Dec. 27, 2001]



Sec.  293.310  Response to requests for information.

    The Office, or an agency in physical possession of an OPF in 
response to a third party Freedom of Information Act (FOIA) request may 
disclose information as provided in this subpart. A current employee's 
request for access to his/her own OPF (also included are employee 
performance file system folders and files) that cites the FOIA, as with 
all stated Privacy Act requests made by current employees, shall be 
processed in accordance with agency Privacy Act procedures consistent 
with Office regulations in part 297 of this chapter. All requests for 
their OPFs from former employees, and FOIA requests for former employee 
OPFs, shall be referred to the Office's regional or area office nearest 
to the location of the requester.



Sec.  293.311  Availability of information.

    (a) The following information from both the OPF and employee 
performance file system folders, their automated equivalent records, and 
from other personnel record files that constitute an agency record 
within the meaning of the FOIA and which are under the control of the 
Office, about most present and former Federal employees, is available to 
the public:
    (1) Name;
    (2) Present and past position titles and occupational series;
    (3) Present and past grades;
    (4) Present and past annual salary rates (including performance 
awards or bonuses, incentive awards, merit pay amount, Meritorious or 
Distinguished Executive Ranks, and allowances and differentials);
    (5) Present and past duty stations (includes room numbers, shop 
designations, or other identifying information regarding buildings or 
places of employment); and
    (6) Position descriptions, identification of job elements, and those 
performance standards (but not actual performance appraisals) that the 
release of which would not interfere with law enforcement programs or 
severely inhibit agency effectiveness. Performance elements and 
standards (or work expectations) may be withheld when they are so 
interwined with performance appraisals that their disclosure would 
reveal an individual's performance appraisal.
    (b) The Office or agency will generally not disclose information 
where the data sought is a list of names, present or past position 
titles, grades, salaries, performance standards, and/or duty stations of 
Federal employees which, as determined by the official responsible for 
custody of the information:
    (1) Is selected in such a way that would reveal more about the 
employee on whom information is sought than the six enumerated items, 
the disclosure of which would constitute a clearly unwarranted invasion 
of personal privacy; or
    (2) Would otherwise be protected from mandatory disclosure under an 
exemption of the FOIA.
    (c) In addition to the information described in paragraph (a) of 
this section, a Government official may provide other information from 
these records (or automated equivalents) of an employee, to others 
outside of the agency, under a summons, warrant, subpoena, or other 
legal process; as provided by the Privacy Act (5 U.S.C. 552a(b)(4) 
through (b)(11)), under those Privacy Act routine uses promulgated by 
the Office, and as required by the FOIA.

[[Page 96]]



           Subpart D_Employee Performance File System Records

    Authority: 5 U.S.C. 552a and 5 U.S.C. 4305 and 4315; E.O. 12107 
(December 28, 1978); 5 U.S.C. 1103, 1104, and 1302; 3 CFR 1954-1958 
Compilation; 5 CFR 7.2; E.O. 9830, 3 CFR 1943-1948 Compilation.

    Source: 47 FR 3080, Jan. 22, 1982, unless otherewise noted.



Sec.  293.401  Applicability of regulations.

    This subpart applies to Executive agencies as defined in sections 
105, 3132(a)(1) and 4301(1) of title 5, U.S. Code, including Military 
Departments (but not non-appropriated fund employees) as defined in 
section 102 of title 5, U.S. Code, and independent establishments as 
defined in section 104 of title 5, U.S. Code. Within those agencies, the 
requirements of this subpart apply to all employees occupying positions 
subject to civil service rules and regulations, including Senior 
Executive Service positions as defined in 5 U.S.C. 3132(a)(2).



Sec.  293.402  Establishment of separate employee performance record system.

    (a) Copies of employees' performance ratings of record, including 
the performance plans on which the ratings are based, must be placed in 
either the employee's Official Personnel Folder (OPF ) or in the 
Employee Performance File (EPF). However, other performance-related 
documents may be retained in the OPF only when the agency prescribes the 
use of a separate envelope, temporarily located in the OPF, and removed 
whenever the OPF (except as required in Sec.  293.404(b)) is transferred 
to another agency. Performance ratings of record, including the 
performance plans on which the ratings are based, shall be retained on 
the left (temporary) side of the OPF. No other performance-related 
record shall be retained on the left (temporary) or right (long term) 
side of the OPF or shall be transferred to the National Personnel 
Records Center (except as required by Sec.  293.404(b)).
    (b) Except for performance records maintained in the OPF consistent 
with paragraph (a) of this section, each agency having employees 
occupying a position described in Sec.  293.401 shall provide for 
maintenance of performance-related records for such employees in this 
EPF system. The agency may elect to retain records in a separate file 
that is located in the same office with the OPF, or in an envelope kept 
in the OPF itself. If the agency determines that a separate EPF is cost-
effective, such a file may be located in another designated agency 
office (as specified in the agency's performance appraisal plan) 
including with supervisors or managers (hereinafter referred to as 
rating officials) or with Performance Review Boards. Any supporting 
documents that the agency may prescribe as necessary for agency 
officials in performance of their duties shall be kept in these files.
    (c)(1) Agencies shall provide their employees access to their 
performance files (automated and manual). Such a request for access 
shall be processed in accordance with established agency procedures, 
consistent with Office of Personnel Management regulations regarding 
access to records contained in part 297 of this chapter. Such access 
shall be provided to the employee or to the employee's designated 
representative, and such records may also be disclosed to other 
officials of the agency who have a need for the documents in the 
performance of their duties.
    (2) All other requests for performance documents made to agency 
officials (e.g., Freedom of Information Act requests or requests made 
under the ``routine use'' provisions of the Privacy Act) shall be 
processed by the responsible agency official in accordance with agency 
procedures consistent with Office of Personnel Management regulations 
regarding disclosures of such records contained in parts 293 and 297 of 
this chapter.
    (3) Privacy Act requests for amendment of records maintained in this 
system shall be processed by the responsible agency official in 
accordance with agency procedures consistent with Office of Personnel 
Management regulations regarding amendment of records contained in part 
297 of this chapter.
    (d) Agencies maintaining the EPF in an automated or microform system 
shall issue instructions that contain necessary procedures to ensure 
that

[[Page 97]]

the same requirements as in paragraph (c) of this section, relating to 
all manual records, are met.

[47 FR 3080, Jan. 22, 1982, as amended at 51 FR 8410, Mar. 11, 1986]



Sec.  293.403  Contents of employee performance files.

    (a) A decision on what constitutes a performance-related document 
within the meaning of this subpart rests with the agency. Agency 
implementing instructions, for both incumbents of the Senior Executive 
Service and other positions, shall provide specific written guidance of 
the description of what constitutes the agency's official performance-
related forms and documents.
    (b) Agency implementing instructions describing such records shall 
indicate where and for how long they are retained and how and when they 
are to be destroyed. Such instructions shall also describe what records 
are considered to be performance-related (as specifically as is 
feasible) and shall include all performance-related records maintained 
as a system of records within the meaning of the Privacy Act. Such 
records would generally include:
    (1) Any form or other document which records the performance 
appraisal, including appraisals leading to merit pay determinations.
    (2) Any form or other document used by rating officials to recommend 
a personnel action affecting an employee (including a request for 
personnel action document, but only when the action is not effected) 
when the basis for the action (e.g., removal, reassignment, demotion, 
promotion, or merit pay or other performance award) is performance-
related.
    (3) Recommendations for training that are performance-related.
    (4) Any form or other document furnished in support of recommended 
actions such as those listed in paragraph (b)(2) of this section and the 
agency's final decision on the matter (e.g., a recommendation for merit 
pay or an agency decision to grant only one-half the comparability pay 
adjustment).
    (5) Any form or other document which the rating official is required 
by the agency to keep during an appraisal period (e.g., quality control 
records, production records, or similar records used to track employee 
performance during the appraisal period.)
    (6) Any form or other document regarding Performance Review Board 
decisions, including supporting documentation and any transcript of 
hearings or testimony from witnesses.
    (7) Any form or other document regarding decisions or 
recommendations of agency Executive Resources Boards related to 
performance appraisal or actions resulting from performance appraisals.
    (8) Appraisals of potential (e.g., in connection with an agency's 
merit promotion procedures) if agency implementing instructions 
specifically require or permit retention of a copy.
    (9) Individual development plans.
    (10) Copies of licenses, certificates of proficiency, or similar 
documents required of the position.
    (c) General information about the employee, i.e., identification 
data, information concerning Federal and non-Federal employment 
experience, and information about any training programs the employee 
participated in may, if an agency deems it appropriate, be retained in 
this system.

[47 FR 3080, Jan. 22, 1982, as amended at 63 FR 43867, Aug. 17, 1998]



Sec.  293.404  Retention schedule.

    (a)(1) Except as provided in Sec.  293.405(a), performance ratings 
or documents supporting them are generally not permanent records and 
shall, except for appointees to the SES and including incumbents of 
executive positions not covered by SES, be retained as prescribed below:
    (i) Performance ratings of record, including the performance plans 
on which they are based, shall be retained for 4 years;
    (ii) Supporting documents shall be retained for as long as the 
agency deems appropriate (up to 4 years);
    (iii) Performance records superseded (e.g., through an 
administrative or judicial procedure) and performance-related records 
pertaining to a former employee (except as prescribed in Sec.  
293.405(a)) need not be retained for a minimum of 4 years. Rather, in 
the former case they are to be destroyed

[[Page 98]]

and in the latter case agencies shall determine the retention schedule; 
and
    (iv) Except where prohibited by law, retention of automated records 
longer than the maximum prescribed here is permitted for purposes of 
statistical analysis so long as the data are not used in any action 
affecting the employee when the manual record has been or should have 
been destroyed.
    (2) When an employee is reassigned within the employing agency, 
disposition of records in this system, including transfer with the 
employee who changes positions, shall be as agencies prescribe and 
consistent with Sec.  293.405(a).
    (3) Appraisals of unacceptable performance, where a notice of 
proposed demotion or removal is issued but not effected, and all 
documents related thereto, manual and automated, pursuant to 5 U.S.C. 
4303(d) must be destroyed after the employee completes one year of 
acceptable performance from the date of the written advance notice of 
the proposed removal or reduction in grade notice. Under conditions 
specified by an agency, and earlier destruction date is permitted and 
destruction must be no later than 30 days after the year is up.
    (b) Performance records for Senior Executive Service appointees, 
including those serving under a Presidential appointment under 5 U.S.C. 
3392(c), are to be retained as follows:
    (1) Pursuant to 5 U.S.C. 4314(b) (3) and (4), Senior Executive 
Service appointees shall have their performance-related records 
maintained for five consecutive years (from the date the appraisal is 
issued) beginning with the effective date of appointment, including 
individuals receiving appointments pursuant to 5 U.S.C. 3593(b).
    (2) When an appointee of the Senior Executive Service moves to 
another position in the Service, either with the same or a different 
agency, all appropriate performance-related documents five years old or 
less shall be forwarded in the Employee Performance File along with the 
individual's OPF.
    (3) When an employee in the Senior Executive Service accepts a 
Presidential appointment pursuant to 5 U.S.C. 3392(c), the employee's 
performance file shall be retained as long as the employee remains 
employed under that Presidential appointment. When the appointment ends, 
and the individual does not return to the Senior Executive Service, the 
employee's performance file shall be destroyed in accordance with agency 
procedures.
    (c) Where any performance-related document is needed in connection 
with an ongoing administrative, negotiated, quasi-judicial, or judicial 
proceeding, and it continues to be retained in this system rather than 
another system, it may be retained for as long as necessary beyond the 
retention schedules identified in paragraphs (a) and (b) of this 
section.
    (d) Screening and purging of folders/envelopes and rating official's 
work files for the purpose of compliance with these retention schedules 
shall be through any agency process insuring consistency with the 
requirements.

[47 FR 3080, Jan. 22, 1982, as amended at 51 FR 8411, Mar. 11, 1986; 56 
FR 65416, Dec. 17, 1991]



Sec.  293.405  Disposition of records.

    (a) When the OPF of a non-SES employee is sent to another servicing 
office in the employing agency, to another agency, or to the National 
Personnel Records Center, the ``losing'' servicing office shall include 
in the OPF all performance ratings of record that are 4 years old or 
less, including the performance plan on which the most recent rating was 
based, and the summary rating prepared when the employee changes 
positions, as prescribed in part 430 of this chapter. Also, the 
``losing'' office will purge from the OPF all performance ratings and 
performance plans that are more than 4 years old, and other performance-
related records, according to agency policy established under Sec.  
293.404(a)(2) and in accordance with the Guide to Personnel 
Recordkeeping.
    (b) Consistent with transfer instructions pertaining to SES 
positions contained in this part, employee performance files shall be 
forwarded to gaining agencies at the same time as the OPF (5 CFR 
293.207).
    (c) Consistent with retention schedules promulgated in Sec.  
293.404, destruction of performance-related records

[[Page 99]]

shall be in accordance with agency procedures (e.g., by shredding or 
burning).
    (d) If a former employee returns to an agency, a new employee 
performance file will be created unless the prior file for this employee 
is still available. The original file may be reactivated provided that, 
consistent with the retention schedules and destruction requirements 
promulgated in this subpart, the contents are properly disposed of.
    (e)(1) It is the responsibility of the agency Personnel Director to 
insure the maintenance of employee performance files in accordance with 
this subpart and subparts A and B of this part, part 297 of this title, 
and with Office of Personnel Management guidance.
    (2) This responsibility may be delegated in writing to other agency 
officials as appropriate. Implementing guidelines for agency performance 
appraisal systems shall provide written instructions for compliance with 
Office rules and procedures as well as descriptions of the documents and 
where they are retained, and shall ensure that records are retained in 
accordance with the provisions of Sec.  293.402.

[47 FR 3080, Jan. 22, 1982, as amended at 51 FR 8411, Mar. 11, 1986; 56 
FR 65416, Dec. 17, 1991; 66 FR 66709, Dec. 27, 2001]



Sec.  293.406  Disclosure of records.

    Disclosure as used here means the furnishing of the record to 
someone other than the individual to whom the record pertains, his/her 
designated representative, or to an agency official who needs the 
information in the performance of official duties. Disclosure of 
information from this file system shall be made only as permitted by the 
Privacy Act (5 U.S.C. 552a(b)) and, with regard to the routine use 
provisions of that section, only under a routine use published by the 
Office for the system of records covering these records. However, to the 
extent that this system contains the data identified as being available 
to the public in Sec.  293.311, for most Federal employees and under the 
same restrictions listed in that section, that information shall also be 
made available to the public from this system.



             Subpart E_Employee Medical File System Records

    Source: 51 FR 33235, Sept. 19, 1986, unless otherwise noted.



Sec.  293.501  Applicability of regulations.

    The applicability of this subpart is identical to that described in 
Sec.  293.301.



Sec.  293.502  Definitions.

    For the purpose of this Subpart--
    Employee is defined at 5 U.S.C. 2105 and excludes student volunteers 
and contractor employees.
    Employee Assistance and Counseling Record means the record created 
when an employee participates in an agency assistance/counseling program 
(e.g., drug or alcohol abuse or personal counseling programs under Pub. 
L. 91-616, 92-255, and 79-658, respectively).
    Employee Exposure Record (which is to be interpreted consistent with 
the term as it is defined at 29 CFR 1910.20(c)(8)) means a record 
containing any of the following kinds of information concerning employee 
exposure to toxic substances or harmful physical agents (as defined at 
29 CFR 1910.20(c)(11)):
    (a) Environmental (workplace) monitoring or measuring, including 
personal, area, grab, wipe, or other form of sampling, as well as 
related collection and analytical methodologies, calculations, and other 
background data relevant to interpretation of the results obtained;
    (b) Biological monitoring results which directly assess the 
absorption of a substance or agent by body systems (e.g., the level of a 
chemical in the blood, urine, breath, hair, fingernails, etc.) but not 
including results which assess the biological effect of a substance or 
agent;
    (c) Matarial safety data sheets; or
    (d) Any other record, in the absence of the above, which reveals the 
identity (e.g., chemical, common, or trade name) of a toxic substance of 
harmful physical agent.
    Employee Medical File System (EMFS) means the agency's complete 
system (automated, microformed, and paper records) for employee 
occupational medical records.
    Employee Medical Folder (EMF) means a separate file folder (normally 
SF 66-

[[Page 100]]

D) established to contain all of the occupational medical records (both 
long-tern and short-term records) designated for retention, which will 
be maintained by the employing agency during the employee's Federal 
service.
    Epidemiological Record means a record maintained by an agency or 
subelement thereof as a result of an official medical research study 
conducted under the authority of the agency.
    Implementing instructions means any form of internal agency issuance 
that provides the guidance required in Sec.  293.503 and any other 
guidance the agency deems appropriate.
    Occupational Medical Record means an occupation-related, 
chronological, cumulative record, regardless of the form or process by 
which it is maintained (e.g., paper document, microfiche, microfilm, or 
automatic data processing media), of information about health status 
developed on an employee, including personal and occupational health 
histories and the opinions and written evaluations generated in the 
course of diagnosis and/or employment-related treatment/examination by 
medical health care professionals and technicians. This definition 
includes the definition of medical records at 29 CFR 1910.20(c)(6); when 
the term ``Occupational Medical Record'' is used in these regulations, 
it includes ``Employee Exposure Records'' (as that term is defined in 
this section) and occupational illness, accident, and injury records.
    Non-occupational/Patient Record means a record of treatment or 
examination, created and maintained by a health care facility, when the 
person is admitted to or voluntarily seeks treatment at the health care 
facility for non-job-related reasons. Records maintained by an agency 
dispensary are patient records for the purposes of these regulations 
except when such records result as a condition of employment or relate 
to an on-the-job occurrence. In these cases, the records are 
``Occupational Medical Records'' as defined herein.
    Non-personal Record means any agency aggregate or statistical record 
or report resulting from studies covering employees or resulting from 
studies or the work-site environment.



Sec.  293.503  Implementing instructions.

    Agencies must issue written internal instructions describing how 
their EMFS is to be implemented. These instructions must--
    (a) Describe overall operation of the system within the agency 
including the designation of the agency official who will be responsible 
for overall system management. When the agency has a medical officer, 
that individual must be named the system manager. The system manager may 
then designate others within the agency to handle the day-to-day 
management of the records, e.g., the custodian of the records at the 
site where they are maintained;
    (b) Be prepared with joint participation by agency medical, health, 
and safety, and personnel officers;
    (c) Describe where and under whose custody employee occupational 
medical records will be physically maintained;
    (d) Designate which agency office(s) will be responsible for 
deciding when and what occupational medical records are to be disclosed 
either to other agency officials or outside the agency;
    (e) Ensure proper records retention and security, and preserve 
confidentiality of doctor/patient relationships;
    (f) Provide that when the agency is requesting an EMF from the 
National Personnel Records Center (NPRC), the request form will show the 
name, title, and address of that agency's system manager or designee, 
who is the only official authorized to receive the EMF;
    (g) Be consistent with Office regulations relating to personnel 
actions when medical evidence is a factor (5 CFR parts 339, 432, 630, 
752, and 831);
    (h) Provide guidance on how an accounting of any record disclosure, 
as required by the Privacy Act (5 U.S.C. 552a(c)), will be done in a way 
that ensures that the accounting will be available for the life of the 
EMF;
    (i) When long-term occupational medical records exist, provide for 
the creation of an EMF for an employee transferring to another agency or 
leaving Government service, and whether an EMF is to be established at 
the time an employee is being reassigned within the agency;
    (j) Ensure a right of access (consistent with any special Privacy 
Act

[[Page 101]]

handling procedures invoked) to the records, in whatever format they are 
maintained, by the employee or a designated representative;
    (k) Ensure that a knowledgeable official determines that all 
appropriate long-term occupational medical records are in an EMF prior 
to its transfer to another agency, to the NPRC, or to another office 
within the same employing agency;
    (l) Ensure that all long-term occupational medical records an agency 
receives in an EMF are maintained, whether in that same EMF or by some 
other agency procedure, and forwarded to a subsequent employing agency 
or to NPRC;
    (m) Ensure that, if occupational medical records are to be 
physically located in the same office as the Official Personnel Folder 
(OPF), the records are maintained physically apart from each other;
    (n) Sets forth a policy that distinguishes, particularly for 
purposes of records disclosure, records in the nature of physician 
treatment records (which are generally not appropriate for disclosure to 
non-medical officials) from other medical reports properly available to 
officials making management decisions concerning the employee;
    (o) Provide guidance that distinguishes records properly subject to 
this part from those (e.g., Postal Service or Foreign Service employee 
medical records) subject to different rules, particularly in Privacy Act 
and Freedom of Information Act matters;
    (p) Ensure that guidance regarding the processing of Privacy Act 
matters is consistent with Office regulations implementing the Privacy 
Act at 5 CFR parts 293 and 297; and
    (q) Ensure that no security classification is assigned to an EMF by 
including therein any occupational medical record that has such a 
classification. In this regard, the agency creating the classified 
medical record is required to retain it separately from the EMF while 
placing a notice in the EMF of its existence and describing where 
requests for this record are to be submitted.



Sec.  293.504  Composition of, and access to, the Employee Medical File System.

    (a) All employee occupational medical records (which exclude 
employee assistance/counseling, patient, non-personal, and 
epidemiological records) whether they are maintained in an automated, 
microform, or paper mode, and wherever located in the agency, are part 
of the EMFS. The records maintained in the EMFS are part of a 
Governmentwide Privacy Act system of records established by the Office. 
Agencies have the responsibility to ensure that such documents are 
maintained in accordance with the Office's Privacy Act regulations in 
part 297 of this chapter, with the agency's instructions implementing 
those regulations, and with the retention schedule for employee medical 
records stipulated in Sec.  293.511. While non-occupational/patient 
records pertaining to an employee are not required to be included as a 
record within the EMFS, under certain conditions to be discussed in 
subsequent OPM guidance, copies of such records are occupationally-
related and, in those cases, may be included in the system.
    (b) Agencies must provide employees access to their own EMFS records 
consistent with Office regulations contained in Sec.  297.204(c) of this 
chapter. When unexcepted access can be provided directly to the 
employee, such unexcepted access must also be provided to any 
representative specifically designated in writing by the employee to 
receive the record. Disclosure of an employee's occupational medical 
records to agency officials (both medical and non-medical) will be 
granted only when the specific information sought is needed for the 
performance of official duties.
    (c) Other agencies for employee occupational medical records made to 
the custodian of the records must be processed in accordance with the 
disclosure provisions of the Privacy Act (5 U.S.C. 552a(b)) and the 
Office's regulations at part 297 of this chapter.
    (d) Processing of a Privacy Act request for amendment of any EMFS 
record must be consistent with the Office's regulations contained in 
part 297

[[Page 102]]

of this chapter regarding amendment of records.

[51 FR 33235, Sept. 19, 1986, as amended at 66 FR 66709, Dec. 27, 2001]



Sec.  293.505  Establishment and protection of Employee Medical Folder.

    (a) As required by these rules, agencies must establish an EMF when 
the employee leaves the employing agency and occupational medical 
records for that employee exist; agencies may also establish an EMF (if 
none presently exists) for active employees if the agency chooses. An 
agency must request the transfer of an existing EMF (and maintain that 
EMF as received) at the same time it requests the transfer of an 
employee's OPF using the procedures contained in Sec.  293.306.
    (b) Neither the original occupational medical record nor duplicates 
are to be retained in the OPF. Prior to the establishment of an EMF for 
a separating employee, when such records are created, they must be 
maintained physically apart from the OPF, although they may be kept in 
the same office.
    (c) Records in an EMF, whether or not located in an office other 
than where the OPF is maintained, must be properly safeguarded using 
procedures ensuring equal or greater levels of protection as those in 
Sec.  293.106. Disclosures must be made only to those authorized to 
receive them, as described in Sec.  293.504(b), and employees must be 
able to ascertain from agency implementing instructions the location of 
all of their medical records. An EMF must be under the control of a 
specifically designated medical, health, safety, or personnel officer as 
prescribed in the agency's implementing internal procedures.



Sec.  293.506  Ownership of the Employee Medical Folder.

    The EMF of each employee in a position subject to civil service 
rules and regulations is part of the records of the Office. When the EMF 
also contains occupational medical records created during employment in 
a position not subject to the civil service (e.g., with the Postal 
Service), the EMF is then part of the records of both the Office and the 
employing agency.



Sec.  293.507  Maintenance and content of the Employee Medical Folder.

    The agency head must maintain all appropriate employee occupational 
medical records in the EMFS. When an EMF is established for an employee, 
as required in Sec.  293.504, the agency's EMFS must be searched to 
obtain all records designated for retention in the EMF.



Sec.  293.508  Type of folder to be used.

    Each agency must use a folder that (a) has been specifically 
identified as the EMF and issued through Federal Supply Service 
contracts (Standard Form 66 D); (b) has been authorized as an exception 
to this form by the Office for use by a specific agency; or (c) in the 
case of an EMF containing records under joint control of the Office and 
another agency, an exception to the use of this form that has been 
jointly authorized.



Sec.  293.509  Use of existing Employee Medical Folders upon transfer or reemployment.

    The requirements of Sec.  293.306, regarding the use of existing 
OPFs, apply to the use of existing EMFs upon the employee's transfer to 
or reemployment in a new employing agency.



Sec.  293.510  Disposition of Employee Medical Folders.

    (a) When an employee transfers to another Federal agency, the EMF 
must be transferred to the gaining agency at the same time as the 
employee's OPF. The EMF is to be addressed only to the gaining agency's 
designated manager (medical, health, safety, or personnel officer, or 
other designee) of the EMFS.
    (b) When an employee is separated from the Federal service, the EMF 
must be forwarded to the NPRC with the OPF, using the instructions in 
Sec.  293.307 of this part.
    (c) When a former Federal employee is re-employed by an agency, and 
that agency believes that an EMF exists, either at the last employing 
agency or at the NPRC, the agency will request the EMF, but no sooner 
than 30 days after the date of the new appointment. No EMFs will be 
routinely retrieved during the initial review process (as is done with 
the OPF) except when authority exists for the agency to require

[[Page 103]]

a medical evaluation prior to reaching a decision on employability. EMFs 
are to be transferred by the NPRC only to the agency-designated manager 
(medical, health, safety, or personnel, or other designee) shown on the 
request form.



Sec.  293.511  Retention schedule.

    (a) Temporary EMFS records must not be placed in a newly-created EMF 
for a separating employee and must be removed from an already existing 
EMF before its transfer to another agency or to the NPRC. Such records 
must be disposed of in accordance with General Records Schedule (GRS) 1, 
item 21, issued by the National Archives and Records Administration 
(NARA).
    (b) Occupational Medical Records considered to be long-term records 
must be maintained for the duration of employment, plus 30 years or for 
as long as the OPF is maintained, whichever is longer. Therefore, upon 
separation, the records must be provided to the employee's new agency, 
or they must be transferred to the NPRC, which will dispose of them in 
accordance with GRS 1, item 21, issued by NARA.



PART 294_AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents




  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
294.101 Purpose.
294.102 General definitions.
294.103 Definitions of categories and assignment of requests and 
          requesters to categories.
294.104 Clarifying a requester's category.
294.105 Access to the requester's own records.
294.106 Handbook of Publications, Periodicals, and OPM Issuances.
294.107 Places to obtain records.
294.108 Procedures for obtaining records.
294.109 Fees.
294.110 Appeals.
294.111 Custody of records; subpoenas.
294.112 Confidential commercial information.

                Subpart B_The Public Information Function

294.201 Public information policy.

                       Subpart C_Office Operations

294.301 Policy and interpretations.

                       Subpart D_Cross References

294.401 References.

    Authority: 5 U.S.C. 552, Freedom of Information Act, Pub. L. 92-502, 
as amended by the Freedom of Information Reform Act of 1986, Pub. L. 99-
570, and E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: 54 FR 25094, June 13, 1989, unless otherwise noted.



Sec.  294.101  Purpose.

    This subpart contains the regulations of the Office of Personnel 
Management (OPM) implementing the Freedom of Information Act (FOIA), 5 
U.S.C. 552. Except as provided by Sec.  294.105, OPM will use the 
provisions of this subpart to process all requests for records.



Sec.  294.102  General definitions.

    All of the terms defined in the Freedom of Information Act, and the 
definitions included in the ``Uniform Freedom of Information Act Fee 
Schedule and Guidelines'' issued by the Office of Management and Budget 
apply, regardless of whether they are defined in this subpart.
    Direct costs means the expenditures that an agency actually incurs 
in searching for, duplicating, and reviewing documents to respond to an 
FOIA request. Overhead expenses (such as the cost of space, and heating 
or lighting the facility in which the records are stored), are not 
included in direct costs.
    Disclose or disclosure means making records available, on request, 
for examination and copying, or furnishing a copy of records.
    Duplication means the process of making a copy of a document 
necessary to respond to an FOIA request. Among the forms that such 
copies can take are paper, microform, audiovisual materials, or machine 
readable documentation (e.g., magnetic tape or disk).

[[Page 104]]

    Records, information, document, and material have the same meaning 
as the term agency records in section 552 of title 5, United States 
Code.
    Review means the process of initially examining documents located in 
response to a request to determine whether any portion of any document 
located may be withheld. It also includes processing documents for 
disclosure; e.g., doing all that is necessary to excise them and 
otherwise prepare them for release. Review does not include time spent 
resolving general legal and policy issues regarding the application of 
exemptions.
    Search means the time spent looking for material that is responsive 
to a request, including page-by-page or line-by-line identification of 
material within documents.

[54 FR 25094, June 13, 1989, as amended at 58 FR 32043, June 8, 1993]



Sec.  294.103  Definitions of categories and assignment of requests and requesters to categories.

    OPM will apply the definitions and procedures contained in this 
section to assign requesters to categories. The four categories 
established by 5 U.S.C. 552(a) are requests for commercial use, requests 
for non-commercial use made by educational or non-commercial scientific 
institutions, requests for non-commercial use made by representatives of 
the news media, and all others.
    (a) Request for commercial use. A ``commercial use request'' is from 
or on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interests of the requester or 
the person or institution on whose behalf the request is made. In 
determining whether a request properly belongs in this category, OPM 
will look first to the intended use of the documents being requested.
    (b) Request for non-commercial use made by an educational or non-
commercial scientific institution. OPM will include requesters in one of 
the two categories described in paragraphs (b) (1) and (2) of this 
section when the request is being made as authorized by, and under the 
auspices of, a qualifying institution; and the records are sought, not 
for a commercial use, but in furtherance of scholarly or scientific 
research.
    (1) Educational institution refers to any public or private, 
preschool, elementary, or secondary school, institution of undergraduate 
or graduate higher education, or institution of professional or 
vocational education, which operates a program or programs of scholarly 
or scientific research.
    (2) A non-commercial scientific institution refers to an institution 
that is not operated on a commercial basis as that term is referenced in 
paragraph (a) of this section, and which is operated solely to conduct 
scientific or scholarly research, the results of which are not intended 
to promote any particular product or industry.
    (c) Request from a representative of the news media. 
``Representative of the news media'' refers to any person actively 
gathering news for an entity that is organized and operated to publish, 
broadcast, or otherwise disseminate news to the public. The term 
``news'' means information that is about current events or that would be 
of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large, and publishers of periodicals who make their products available 
for purchase or subscription by the general public. Free-lance 
journalists may be regarded as representatives of the news media if they 
demonstrate a solid basis for expecting publication, or some other form 
of dissemination, through a particular organization even though they are 
not actually employed by it. OPM will assign news media officials to 
this category only when a request is not for commercial use. If a person 
meets the other qualifications for inclusion, OPM will not apply the 
term ``commercial use'' to his or her request for records in support of 
a news dissemination function.
    (d) Requests from others. The category ``all others,'' consists of 
any requesters not covered by paragraphs (a), (b), or (c) of this 
section. However, as provided by Sec.  294.105, OPM will use its Privacy 
Act regulations, rather than this subpart, when individuals ask for 
records about themselves that may be filed in OPM systems of records.

[[Page 105]]



Sec.  294.104  Clarifying a requester's category.

    (a) Seeking clarification of a requester's category. OPM may seek 
additional clarification before assigning a person to a specific 
category if--
    (1) There is reasonable cause to doubt the requester's intended use 
of records; or
    (2) The intended use is not clear from the request itself; or
    (3) There is any other reasonable doubt about qualifications that 
may affect the fees applicable or the services rendered under Sec.  
294.109.
    (b) Prompt notification to requester. When OPM seeks clarification 
as provided by paragraph (a) of this section, it will provide prompt 
notification either by telephone or in writing of the information or 
materials needed.
    (c) Effect of seeking clarification on time limits for responding. 
When applying the time limits in section 552 of title 5, United States 
Code, OPM will not officially consider any request for records as being 
received until the official who is assigned responsibility for making a 
decision on releasing the records has received any additional 
clarification sought under paragraphs (a) and (b) of this section; and 
has determined that the clarifying information is sufficient to 
correctly place the requester in one of the categories prescribed in 
this section. If the requested clarifying information is not received 
within a reasonable time, OPM will, based on the information available, 
determine a final category for the request and calculate applicable 
fees.

[54 FR 25094, June 13, 1989, as amended at 58 FR 32043, June 8, 1993]



Sec.  294.105  Access to the requester's own records.

    When the subject of a record, or a duly authorized representative of 
the subject, requests his or her own records from a Privacy Act system 
of records, as defined by 5 U.S.C. 552a (a)(5), and the record is 
maintained so that it is retrieved by the subject's name or other 
personal identifier, OPM will process the request under the Privacy Act 
procedures in part 297 of this chapter.



Sec.  294.106  Handbook of Publications, Periodicals, and OPM Issuances.

    (a)(1) Annually, OPM publishes OPM-AG-PSD-01, ``Handbook of 
Publications, Periodicals, and Issuances,'' and accompanying addendum. 
This handbook and addendum lists material published and offered for sale 
are available for public inspection or copying. Unless the material is 
published and offered for sale, OPM makes available for public 
inspection and copying:
    (i) Final opinions made by OPM in the adjudication of cases;
    (ii) OPM policy statements and interpretations adopted by OPM but 
not published in the Federal Register; and
    (iii) OPM administrative staff manuals and instructions that affect 
a member of the public.
    (2) To the extent required to prevent a clearly unwarranted invasion 
of personal privacy, OPM may delete identifying details when it makes 
available or publishes an opinion, statement of policy, interpretation, 
or staff manual or instruction.
    (b) A copy of this handbook and addendum is available at no cost 
from the--Publishing Management Branch, Office of Personnel Management, 
room B464, 1900 E Street, NW., Washington, DC 20415-0001.
    (c) OPM indexes material in this handbook and addendum format for 
the convenience of the public. Indexing does not constitute a 
determination that all of the material listed is within the category 
that is required to be indexed by 5 U.S.C. 552(a)(2). Most of OPM's 
publications may be found in OPM's Library in room 5H27 at the address 
listed in paragraph (b) of this section.
    (d) As provided by 5 U.S.C. 552(a)(2), OPM has determined that it is 
unnecessary and impractical to publish the ``Handbook of Publications, 
Periodicals, and Issuances'' and addendum more frequently than annually 
because of the small number of revisions that occur.

[57 FR 32150, July 21, 1992, as amended at 66 FR 66710, Dec. 27, 2001]

[[Page 106]]



Sec.  294.107  Places to obtain records.

    (a) Address requests for OPM records to the officials listed in 
paragraph (b), (c), or (d) of this section.
    (b) The following is a list of key Washington, DC, officials of OPM 
and their principal areas of responsibility. Address requests for 
records to the appropriate official using the official's title and the 
following address: Office of Personnel Management, 1900 E Street, NW., 
Washington, DC 20415.

------------------------------------------------------------------------
                 Send to--                   For subject-matter about--
------------------------------------------------------------------------
Associate Director for Administration.....  Administrative services;
                                             information management,
                                             including automated data
                                             processing; equal
                                             employment opportunity;
                                             procurement; and personnel.
Associate Director for Retirement and       Retirement; life and health
 Insurance.                                  insurance.
Associate Director for Personnel Systems    Personnel management in
 and Oversight.                              agencies; pay; position
                                             classification; wage grade
                                             jobs; performance
                                             management; and employee
                                             and labor relations.
Assistant Director for Workforce            Governmentwide personnel
 Information.                                statistics; official
                                             personnel and employee
                                             medical folders.
Associate Director for Investigations.....  Background investigations
                                             and related records on
                                             individuals.
Associate Director for Career Entry.......  Nationwide examining and
                                             testing for employment;
                                             promotions; administrative
                                             law judges; affirmative
                                             employment programs for
                                             minorities, women,
                                             veterans, and the
                                             handicapped; recruiting and
                                             employment; and staffing
                                             policy.
Chief Financial Officer...................  Financial management.
Director for Human Resources Development..  Training, education, and
                                             development; senior
                                             executive service.
Director, Washington Area Service Center..  Examining, testing, and
                                             training operations in
                                             Washington, DC.
------------------------------------------------------------------------

    (c) Direct requests for records on subjects not specifically 
referred to in this section or in the handbook or addendum, to Plans and 
Policies Division (CHP-500), Office of Information Resources Management, 
Administration Group, Office of Personnel Management, 1900 E Street, 
NW., Washington, DC 20415.
    (d) The following is a list of OPM regional offices. Address 
requests for regional records to the Regional Director, Office of 
Personnel Management in the appropriate region:

     Atlanta Region--Richard B. Russell Federal 
Building, Suite 904, 75 Spring Street, SW., Atlanta, GA 30303-3019.
     Chicago Region--John C. Kluczynski Federal 
Building, 30th Floor, 230 South Dearborn Street, Chicago, IL 60604.
     Dallas Region--1100 Commerce Street, Dallas, TX 
75242.
     Philadelphia Region--William J. Green, Jr., 
Federal Building, 600 Arch Street, Philadelphia, PA 19106-1596.
     San Francisco Region--211 Main Street, 7th Floor, 
San Francisco, CA 94105.

    (e) When an organization does not have records in its custody. When 
an OPM organization receives a Freedom of Information Act request for 
OPM records that it does not have in its possession, it will normally 
either--
    (1) Retrieve the records from the organization that has possession 
of them; or
    (2) Promptly forward the request to the appropriate organization. If 
a person has asked to be kept apprised of anything that will delay the 
official receipt of a request, OPM will provide notice of this 
forwarding action. Otherwise, OPM may, at its option, provide such 
notice.
    (f) Applying the time limits. When applying the time limits in 
section 552 of title 5, United States Code, OPM will not officially 
consider any request to be received until it arrives in the OPM 
organization that has responsibility for the records sought.
    (g) Records from other Government agencies. When a person seeks 
records that originated in another Government agency, OPM may refer the 
request to the other agency for response. Ordinarily, OPM will provide 
notice of this type of referral.
    (h) Creating records. If a person seeks information from OPM in a 
format that does not currently exist, OPM will not ordinarily compile 
the information for the purpose of creating a record to respond to the 
request. OPM will advise the individual that it does not have records in 
the format sought. If other existing records would reasonably respond to 
the request or portions of it, OPM may provide these. If fees as 
provided in Sec.  294.109 apply to any alternative records, OPM will 
advise the requester before providing the records.

[54 FR 25094, June 13, 1989, as amended at 57 FR 32150, July 21, 1992; 
58 FR 32044, June 8, 1993]

[[Page 107]]



Sec.  294.108  Procedures for obtaining records.

    (a) Mailing or delivering a request. Any person may ask for records 
under section 552 of title 5, United States Code, by directing a letter 
to one of the organizations listed in Sec.  294.107, or by delivering a 
request in person at the addresses listed in that section during 
business hours on a regular business day.
    (b) Proper marking. Each request for records should have a clear and 
prominent notation on the first page, such as ``Freedom of Information 
Act Request.'' In addition, if sent by mail or otherwise submitted in an 
envelope or other cover, mark the outside clearly and prominently with 
``FOIA Request'' or ``Freedom of Information Act Request.''
    (c) Contents of request letter. A request must describe the records 
sought in sufficient detail to enable OPM personnel to locate the 
records with a reasonable amount of effort.
    (1) OPM will regard a request for a specific category of records as 
fulfilling the requirements of this paragraph, if it enables responsive 
records to be identified by a technique or process that is not 
unreasonably burdensome or disruptive to OPM operations.
    (2) Whenever possible, a request should include specific information 
about each record sought, such as the date, number, title or name, 
author, recipient, and subject matter of the record.
    (3) If an OPM organization determines that a request does not 
reasonably describe the records sought, it will either provide notice of 
any additional information needed or otherwise state why the request is 
insufficient. OPM will also offer the record seeker an opportunity to 
confer, with the objective of reformulating the request so that it meets 
the requirements of this section.
    (d) Medical records. OPM or another Government agency may disclose 
the medical records of an applicant, employee, or annuitant to the 
subject of the record, or to a representative designated in writing. 
However, medical records may contain information about an individual's 
mental or physical condition that a prudent physician would hesitate to 
give to the individual. Under such circumstances, OPM may disclose the 
records, including the exact nature and probable outcome of the 
condition, only to a licensed physician designated in writing for that 
purpose by the individual or his or her designated representative.
    (e) Publications. If the subject matter of a request includes 
material published and offered for sale (e.g., by the Superintendent of 
Documents, Government Printing Office), OPM will explain where a person 
may review and/or purchase the publications.
    (f) Responses within 10 working days. Except in unusual 
circumstances (as defined in 5 U.S.C. 552(a)(6)(B)), OPM will determine 
whether to disclose or deny records within 10 working days after receipt 
of the request (excluding weekends and holidays) and will provide notice 
immediately of its determination and the reasons therefor, and of the 
right to appeal any adverse determination.

[54 FR 25094, June 13, 1989, as amended at 58 FR 32044, June 8, 1993]



Sec.  294.109  Fees.

    (a) Applicability of fees. (1) OPM will furnish, without charge, 
reasonable quantities of material that it has available for free 
distribution to the public.
    (2) OPM may furnish other materials, subject to payment of fees 
intended to recoup the full allowable direct costs of providing 
services. Fees for these materials may be waived if the request meets 
the requirements specified in paragraph (f) of this section.
    (3) If a request does not include an acceptable agreement to pay 
fees and does not otherwise convey a willingness to pay fees, OPM will 
promptly provide notification of the estimated fees. This notice will 
offer an opportunity to confer with OPM staff to reformulate the request 
to meet the requester's needs at a lower cost. Upon agreement to pay the 
required fees, OPM will further process the request.
    (4) As described in Sec.  294.107, OPM ordinarily responds to FOIA 
requests in a decentralized manner. Because of this, OPM may at times 
refer a single request to two or more OPM entities to make separate 
direct responses. In such cases, each responding entity may assess fees 
as provided by this section,

[[Page 108]]

but only for direct costs associated with any response it has prepared.
    (5) If fees for document search are authorized as provided in 
paragraph (c) of this section, OPM may assess charges for employee time 
spent searching for documents and other direct costs of a search, even 
if a search fails to locate records or if records located are determined 
to be exempt from disclosure. Searches should be conducted in the most 
efficient and least expensive manner so as to minimize the cost for both 
the agency and the requester, e.g., personnel should not engage in line-
by-line search when photocopying an entire document would be a less 
expensive and quicker way to comply with a request.
    (6) Services requested and performed but not required under the 
FOIA, such as formal certification of records as true copies, will be 
subject to charges under the Federal User Charge Statute (31 U.S.C. 
483a) or other applicable statutes.
    (b) Rates used to compute fees. The following rates form the basis 
for assessing reasonable, standard charges for document search, 
duplication, and review as required by 5 U.S.C. 552(a)(4). The listing 
of rates below should be used in conjunction with the fee components 
listed in paragraph (c) of this section:

------------------------------------------------------------------------
                  Service                               Rate
------------------------------------------------------------------------
Employee time.............................  Salary rate plus 16% to
                                             cover benefits.
Photocopies (up to 8\1/2\x14).
Printed materials, per 25 pages or          $.025.
 fraction thereof.
Computer time.............................  Actual direct cost.
Supplies and other materials..............  Actual direct cost.
Other costs not identified above..........  Actual direct cost.
------------------------------------------------------------------------

    (c) Assessing fees based on requester's category. Rates are assessed 
differently for the different categories of requesters as defined in 
Sec.  294.103. Requests have three cost components for the purpose of 
assessing fees: the cost of document search, the cost of duplication, 
and the cost of review. OPM will apply the rates in paragraph (b) of 
this section to the cost components that apply to the requester's 
category as follows:

----------------------------------------------------------------------------------------------------------------
         Requester's category                   Search                   Review                Duplication
----------------------------------------------------------------------------------------------------------------
Commercial...........................  Actual direct costs....  Actual direct costs....  Actual direct costs.
Non-commercial (educational or         No charge..............  No charge..............  Actual direct costs.\1\
 scientific institution) or news
 media.
All others...........................  Actual direct costs \2\  No charge..............  Actual direct costs.\1\
----------------------------------------------------------------------------------------------------------------
\1\ First 100 pages of paper copies or reasonable equivalent, such as a microfiche containing the equivalent of
  100 pages, are copied free.
\2\ First 2 hours of manual search time are free. If requested records are maintained in a computerized data
  base, OPM will use the following formula, suggested by OMB, to provide the equivalent of 2 hours manual search
  time free before charging for computer search time: The operator's hourly salary plus 16% will be added to the
  hourly cost of operating the central processing unit that contains the record information.

    (d) Payment of fees. Fees are payable by check or money order to the 
Office of Personnel Management.
    (1) If the total charge for fulfilling the request will be less than 
$25, no fee will be assessed (except as provided in paragraph (d)(3) of 
this section).
    (2) If a request may reasonably result in a fee assessment of more 
than $25, OPM will not release the records unless the requester agrees 
in advance to pay the anticipated charges.
    (3) OPM may aggregate requests and charge fees accordingly, when 
there is a reasonable belief that a requester, or a group of requesters 
acting in concert, is attempting to break down a request into a series 
of requests to evade the assessment of fees.
    (i) If multiple requests of this type occur within a 30-day period, 
OPM may provide notice that it is aggregating the requests and that it 
will apply the fee provisions of this section, including any required 
agreement to pay fees and any advance payment.
    (ii) Before aggregating requests of this type made over a period 
longer than 30 days, OPM will assure that it has a solid basis on which 
to conclude that the requesters are acting in concert and are acting 
specifically to avoid payment of fees.

[[Page 109]]

    (iii) OPM will not aggregate multiple requests on unrelated subjects 
from one person.
    (e) Payment of fees in advance. If OPM estimates or determines that 
fees are likely to exceed $250, OPM may require the payment of 
applicable fees in advance.
    (1) If an OPM official, who is authorized to make a decision on a 
particular request, determines that the requester has a history of 
prompt payment of FOIA fees, OPM will provide notice of the likely cost 
and obtain satisfactory assurance of full payment.
    (2) When a person, or an organization that a person represents, has 
previously failed to pay assessed fees in a timely manner (i.e., payment 
was not made within 30 days of the billing date), OPM will require full 
payment of all fees in advance.
    (3) If a person, or an organization that a person represents, has 
not paid fees previously assessed, OPM will not begin to process any new 
request for records until the requester has paid the full amount owed 
plus any applicable interest, and made a full advance payment for the 
new request.
    (f) Waiver or reduction of fees. OPM will furnish documents without 
any charge, or at a reduced charge, if disclosure of the information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
Government, and release of the material is not primarily in the 
commercial interest of the requester.
    (1) In determining whether disclosure is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the Government, OPM shall consider 
the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the Government'';
    (ii) The information value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of Government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to ``public understanding''; 
and
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Government operations or activities.
    (2) In determining whether disclosure of the information is or is 
not primarily in the commercial interest of the requester, OPM shall 
consider the following factors:
    (i) The existence and magnitude of a commercial interest. Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so--
    (ii) The primary interest in disclosure. Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (3) In all cases the burden of proof shall be on the requester to 
present evidence or information in support of a request for a waiver or 
reduction of fees.
    (g) Denial of waiver request. (1) An OPM official may deny a request 
for a full or partial waiver of fees without further consideration if 
the request does not include:
    (i) A clear statement of the requester's interest in the requested 
information;
    (ii) A clear statement of the use proposed for the information and 
whether the requester will derive income or other benefit from such use;
    (iii) A clear statement of how the public will benefit from OPM's 
release of the requested information; and
    (iv) If specialized use of the documents is contemplated, a clear 
statement of the requester's qualifications that are relevant to the 
specialized use.
    (2) A requester may appeal the denial of a waiver request as 
provided by Sec.  294.110 of this part.
    (h) Fees not paid; penalties; debt collection. (1) If a request, 
which requires the advance payment of fees under the criteria specified 
in this section, is not accompanied by the required payment,

[[Page 110]]

OPM will promptly notify the requester that the required fee must be 
paid within 30 days, and that OPM will not further process the request 
until it receives payment.
    (2) OPM may begin assessing interest charges on an unpaid bill 
starting on the 31st day following the date on which the bill was sent. 
Interest will be charged at the rate prescribed in 31 U.S.C. 3717, and 
will accrue from the date of the billing.
    (3) To encourage the repayment of debts incurred under this subpart, 
OPM may use the procedures authorized by Public Law 97-365, the Debt 
Collection Act of 1982. This may include disclosure to consumer 
reporting agencies and the use of collection agencies.

[58 FR 32044, June 8, 1993]



Sec.  294.110  Appeals.

    (a) When an OPM official denies records or a waiver of fees under 
the Freedom of Information Act, the requester may appeal to the--

Office of the General Counsel, Office of Personnel Management, 
Washington, DC 20415

    (b) A person may appeal denial of a Freedom of Information Act 
request for information maintained by OPM's Office of the General 
Counsel to the--

Deputy Director, Office of Personnel Management Washington, DC 20415

    (c) If an official of another agency denies a Freedom of Information 
Act request for records in one of OPM's Government-wide systems of 
records, the requester should consult that agency's regulations for any 
appeal rights that may apply. An agency may, at its discretion, direct 
these appeals to OPM's Office of the General Counsel.
    (d) An appeal should include a copy of the initial request, a copy 
of the letter denying the request, and a statement explaining why the 
appellant believes the denying official erred.
    (e) The appeals provided for in this section constitute the final 
levels of administrative review that are available. If a denial of 
information or a denial of a fee waiver is affirmed, the requester may 
seek judicial review in the district court of the United States in the 
district in which he or she resides, or has his or her principal place 
of business, or in which the agency records are situated, or in the 
District of Columbia.



Sec.  294.111  Custody of records; subpoenas.

    (a) The Chief, Plans and Policies Division, Administration Group, 
OPM, has official custody of OPM records. A subpoena or other judicial 
order for an official record from OPM should be served on the--

Chief, Plans and Policies Division, Office of Personnel Management, 1900 
E Street NW., Washington, DC 20415

    (b) See 5 CFR part 297, subpart D--Disclosure of Records, of this 
title, for the steps other officials should take on receipt of a 
subpoena or other judicial order for an Office record.

[54 FR 25094, June 13, 1989, as amended at 57 FR 32150, July 21, 1992]



Sec.  294.112  Confidential commercial information.

    (a) In general, OPM will not disclose confidential commercial 
information in response to a Freedom of Information Act request except 
in accordance with this section.
    (b) The following definitions from Executive Order 12600, apply to 
this section:
    (1) Confidential commercial information means records provided to 
the Government by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information, directly or indirectly, to OPM. The term 
includes, but is not limited to, corporations, state governments, and 
foreign governments.
    (c) Submitters of information shall designate by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of their submissions that they consider to be 
confidential commercial information. Such designations shall expire 10 
years after the date of submission unless the submitter requests, and 
provides reasonable justification

[[Page 111]]

for, a designation period of greater duration.
    (d) OPM shall, to the extent permitted by law, provide prompt 
written notice to an information submitter of Freedom of Information 
requests or administrative appeals if:
    (1) The submitter has made a good faith designation that the 
requested material is confidential commercial information, or
    (2) OPM has reason to believe that the requested material may be 
confidential commercial information.
    (e) The written notice required in paragraph (d) of this section 
shall either describe the confidential commercial material requested or 
include as an attachment, copies or pertinent portions of the records.
    (f) Whenever OPM provides the notification and opportunity to object 
required by paragraphs (d) and (h) of this section, it will advise the 
requester that notice and an opportunity to object are being provided to 
the submitter.
    (g) The notice requirements of paragraph (d) of this section shall 
not apply if:
    (1) OPM determines that the information should not be disclosed;
    (2) The information has been lawfully published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552);
    (4) The information was submitted on or after August 20, 1992, and 
has not been designated by the submitter as exempt from disclosure in 
accordance with paragraph (c) of this section, unless OPM has 
substantial reason to believe that disclosure of the information would 
result in competitive harm; or
    (5) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, OPM shall, within a reasonable number of days prior to a 
specified disclosure date, notify the submitter in writing of any final 
administrative decision to disclose the information.
    (h) The notice described in paragraph (d) of this section shall give 
a submitter a reasonable period from the date of the notice to provide 
OPM with a detailed written statement of any objection to disclosure. 
The statement shall specify all grounds for withholding any of the 
material under any exemption of the Freedom of Information Act. When 
Exemption 4 of the FOIA is cited as the grounds for withholding, the 
specification shall demonstrate the basis for any contention that the 
material is a trade secret or commercial or financial information that 
is privileged or confidential. It must also include a specification of 
any claim of competitive harm, including the degree of such harm, that 
would result from disclosure. Information provided in response to this 
paragraph may itself be subject to disclosure under the FOIA. 
Information provided in response to this paragraph shall also be subject 
to the designation requirements of paragraph (c) of this section. 
Failure to object in a timely manner shall be considered a statement of 
no objection by OPM, unless OPM extends the time for objection upon 
timely request from the submitter and for good cause shown. The 
provisions of this paragraph concerning opportunity to object shall not 
apply to notices of administrative appeals, when the submitter has been 
previously provided an opportunity to object at the time the request was 
initially considered.
    (i) OPM shall consider carefully a submitter's objections and 
specific grounds for nondisclosure, when received within the period of 
time described in paragraph (h) of this section, prior to determining 
whether to disclose the information. Whenever OPM decides to disclose 
the information over the objection of a submitter, OPM shall forward to 
the submitter a written notice, which shall include:
    (1) A statement of the reasons why the submitter's disclosure 
objections were not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date.
    (j) OPM will notify both the submitter and the requester of its 
intent to disclose material a reasonable number of days prior to the 
specified disclosure date.

[[Page 112]]

    (k) Whenever a requester brings suit seeking to compel disclosure of 
confidential commercial information, OPM shall promptly notify the 
submitter.

[57 FR 32150, July 21, 1992]



                Subpart B_The Public Information Function



Sec.  294.201  Public information policy.

    (a) In addition to the basic policies of the Office relative to the 
disclosure of information when requested by a member of the public, the 
Office has an independent public information policy for bringing to the 
attention of the public through news releases, publications of the 
Office, or other methods, information concerning the functions of the 
Office as a Federal agency, and the programs administered by the Office.
    (b) The Assistant Director for Public Affairs carries out the public 
information policy of the Office. In addition, each employee of the 
Office shall cooperate in carrying out this policy.

[50 FR 3310, Jan. 24, 1985]



                       Subpart C_Office Operations



Sec.  294.301  Policy and interpretations.

    (a) Statements of Office policy and interpretations of the laws and 
regulations administered by the Office which the Office has adopted, 
whether or not published in the Federal Register, are available to the 
public.
    (b) Generally, memoranda, correspondence, opinions, data, staff 
studies, information received in confidence, and similar documentary 
material, when prepared for the purpose of internal communication within 
the Office or between the Office and other agencies, organizations, or 
persons, are not available to the public.

[50 FR 3310, Jan. 24, 1985, as amended at 66 FR 66710, Dec. 27, 2001]



                       Subpart D_Cross References



Sec.  294.401  References.

    The table below provides assistance in locating other OPM 
regulations in title 5 of the Code of Federal Regulations that have 
provisions on the disclosure of records:

------------------------------------------------------------------------
            Type of information                       Location
------------------------------------------------------------------------
Classification appeal records.............  511.616.
Classification information................  175.101.
Employee performance folders..............  293.311.
Examination and related subjects records..  300.201.
Grade and pay retention records...........  536.405.
Investigative records.....................  736.104.
Job grading reviews and appeals records...  532.707.
Medical information.......................  297.205 and 293 subpart E.
Official Personnel Folders................  293.311.
Privacy and personnel records.............  297.
Retirement................................  831.106 and 841.108.
------------------------------------------------------------------------


[54 FR 25098, June 13, 1989, as amended at 58 FR 32046, June 8, 1993; 70 
FR 31286, May 31, 2005]



PART 297_PRIVACY PROCEDURES FOR PERSONNEL RECORDS--Table of Contents




                      Subpart A_General Provisions

Sec.
297.101 Purpose and scope.
297.102 Definitions.
297.103 Designations of authority by system manager.
297.104 Types of records.
297.105 Agency and Office responsibilities for systems of records and 
          applicability of the regulations.
297.106 Contact point for Privacy Act matters.

                      Subpart B_Request for Access

297.201 General provisions.
297.202 Methods of access.
297.203 Access by the parent of a minor or by the legal guardian of an 
          individual declared to be incompetent.
297.204 Access by the representative of the data subject.
297.205 Access to medical records.
297.206 Fees charged by the Office.
297.207 Denials of access and appeals with respect to such denials.
297.208 Judicial review.

                     Subpart C_Amendment of Records

297.301 General provisions.
297.302 Time limits.
297.303 Applicability of amendment provisions.
297.304 Approval of requests to amend records.
297.305 Denial of requests to amend records.
297.306 Appeal of a denial of a request to amend a record.

[[Page 113]]

297.307 Statement of disagreement.
297.308 Judicial review.

                     Subpart D_Disclosure of Records

297.401 Conditions of disclosure.
297.402 Disclosure pursuant to a compulsory legal process served on the 
          Office.
297.403 Accounting of disclosure.

                        Subpart E_Exempt Records

297.501 Exemptions.

    Authority: Sec. 3, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 53 FR 1998, Jan. 26, 1988, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  297.101  Purpose and scope.

    This part sets forth the regulations of the U.S. Office of Personnel 
Management (the Office) to govern the maintenance, protection, 
disclosure, and amendment of records within the systems of records as 
defned by the Privacy Act of 1974 (5 U.S.C. 552a), Public Law 93-579.



Sec.  297.102  Definitions.

    In this part, the terms agency, individual, maintain, record, 
statistical records, and systems of records have the same meanings as 
defined in the Privacy Act, 5 U.S.C. 552a. In addition:
    Access means providing a copy of a record to, or allowing review of 
the original record by, the data subject or the data subject's 
authorized representative, parent, or legal guardian;
    Act means the Privacy Act of 1974, Public Law 93-579, 5 U.S.C. 552a, 
as amended;
    Agency means any department or independent establishment in the 
Executive Branch of the Federal Government, including a Government 
corporation, of Government-controlled corporation, except those 
specifically excluded from the Office recordkeeping requirements by 
statute, this title, or formal agreement between the Office and the 
agency.
    Amendment means the correction, addition, deletion, or destruction 
of a record or specific portions of a record;
    Data subject means the individual to whom the information pertains 
and by whose name or other individual identifier the information is 
retrieved;
    Disclosure means providing personal review of a record, or a copy 
thereof, to someone other than the data subject or the data subject's 
authorized representative, parent, or legal guardian;
    Office means the U.S. Office of Personnel Management;
    Personnel record means any record concerning an individual which is 
maintained and used in the personnel management or personnel policy-
making process; and
    System manager means the Office or agency official, designated by 
the head of the agency, who has the authority to decide Privacy Act 
matters relative to each system of records maintained by the Office.



Sec.  297.103  Designations of authority by system manager.

    The responsible Office system manager having jurisdiction over a 
system of records may designate in writing an Office employee to 
evaluate and issue the Office's decision on Privacy Act matters relating 
to either internal, central, or Governmentwide systems of records.



Sec.  297.104  Types of records.

    The Office manages three generic types of personnel records systems:
    (a) Internal systems of records are under the Office's physical 
control and are established and maintained by the Office solely on its 
own employees and, when appropriate, on others in contact with the 
Office regarding matters within its authority.
    (b) Centralized systems of personnel records are physically 
established and maintained by the Office with regard to most current and 
former Federal employees and some applicants for Federal employment.
    (c) Governmentwide systems of personnel records are maintained by 
the Office, and through Office delegations of authority, by Federal 
agencies with regard to their own employees or applicants for 
employment. Although they are Office records, they are in the physical 
custody of those agencies. Though in the physical custody of agencies, 
the Office retains authority under its record management authority and

[[Page 114]]

under the Privacy Act to decide appeals of initial agency determinations 
regarding access to and amendment of material in these systems.



Sec.  297.105  Agency and Office responsibilities for systems of records and applicability of the regulations.

    (a) These regulations apply to processing requests from both current 
and former Office employees for records contained in internal, central, 
and Governmentwide systems of records managed by the Office.
    (b) Agencies are solely and totally responsible for processing 
requests regarding records maintained in their internal systems of 
records. Agency regulations, and not these Office regulations, govern 
the implementation of the Privacy Act for agency internal systems; there 
is no right of appeal to the Office from an agency's determination 
regarding its internal agency records.
    (c) For records maintained in the Office's central systems of 
records, the data subject should contact the appropriate Office system 
manager concerning Privacy Act matters. These regulations will apply to 
inquiries regarding records located in the central systems of records.
    (d) For records maintained within the Office's Governmentwide 
systems of records, each agency is responsible, unless specifically 
excepted by the Office, for responding to initial Privacy Act access and 
amendment requests from its own current employees. For records in Office 
Governmentwide systems, including those in Official Personnel Folders, 
Employee Performance Folders, and Employee Medical Folders, the Office 
is responsible for responding to initial Privacy Act access and 
amendment requests from former Federal employees.
    (e) The procedures in this part apply to all such requests. The 
procedures in this part also apply to appeals from an agency initial 
determination regarding access to or amendment of records contained in 
the Office's Governmentwide systems of records.
    (f) The Office follows the procedures in this part when--
    (1) Processing initial requests regarding access to or amendment of 
records by its own employees and others that the Office is maintaining 
information on in its systems of records, including requests from former 
employees of an agency whose records properly reside in an Office 
Governmentwide system of records.
    (2) Processing Privacy Act appeals regarding access to and amendment 
of records generated by another Federal agency, but which are contained 
in the Office's Governmentwide systems of records, after an agency has 
issued the initial decision.
    (3) Processing initial requests and appeals concerning access to and 
amendment of records contained in the central systems of records.
    (g) For requests concerning records and material of another agency 
that are in the custody of the Office, but not under its control or 
ownership, the Office reserves the right to either refer the request to 
the agency primarily responsible for the material or to notify the 
individual of the proper agency that should be contacted.



Sec.  297.106  Contact point for Privacy Act matters.

    To determine what records the Office maintains in its system of 
records, requesters must write to the Assistant Director for Workforce 
Information, Personnel Systems and Oversight Group, Office of Personnel 
Management, 1900 E Street, NW., Washington, DC 20415. Using the Office's 
response, requesters can contact the particular system manager indicated 
in the Office's notices of its systems published in the Federal Register 
for further assistance in determining if the Office maintains 
information pertaining to them.



                      Subpart B_Request for Access



Sec.  297.201  General provisions.

    (a) Individual's requesting access to records pertaining to them 
that are maintained in a system of records should submit a written 
request to the appropriate system manager and state that the request is 
being made pursuant to the Privacy Act of 1974.
    (b) The Office or agency will require proof of identity from a 
requester. The Office or agency reserves the right to

[[Page 115]]

determine the adequacy of any such proof. The general identifying items 
the Office will require a requester to provide when a request is made to 
the Office are--
    (1) Full name, signature, and home address;
    (2) Social security number (for systems of records that include this 
identifier);
    (3) Current or last place and dates of Federal employment, when 
appropriate and,
    (4) Date and place of birth.
    (c) An individual may be represented by another when requesting 
access to records.



Sec.  297.202  Methods of access.

    (a) The methods for allowing access to records, when such access has 
been granted by the Office or agency, are:
    (1) Inspection in person in the designated office during the hours 
specified by the Office or agency; or
    (2) Transfer of records at the option of the Office or agency to 
another more convenient Federal facility.
    (b) Generally, Office of Personnel Management offices will not 
furnish certified copies of records. When copies are to be furnished, 
they may be provided as determined by the Office and may require payment 
of any fee levied in accordance with the Office's established fee 
schedule.
    (c) When the requester seeks to obtain original documentation, the 
Office reserves the right to limit the request to copies of the original 
records. Original records should be made available for review only in 
the presence of the system manager or designee. An agency should consult 
with the Office when it receives a request for original documentation. 
Section 2701(a) of title 18 of the United States Code makes it a crime 
to conceal, mutilate, obliterate, or destroy any record filed in a 
public office, or to attempt to do so.



Sec.  297.203  Access by the parent of a minor or by the legal guardian of an individual declared to be incompetent.

    (a) A parent, legal guardian, or custodian of a minor, upon 
presentation of suitable personal identification, may access on behalf 
of a minor any record pertaining to the minor in a system of records 
maintained by the Office.
    (b) A legal guardian, upon presentation of documentation 
establishing guardianship, may access on behalf of an individual 
declared to be incompetent by a court of competent jurisdiction, any 
record pertaining to that individual in a system of records maintained 
by the Office.
    (c) Minors are not precluded from exercising personally those rights 
provided them by the Privacy Act.



Sec.  297.204  Access by the representative of the data subject.

    A record may be disclosed to a representative of the individual to 
whom the record pertains after the system manager receives written 
authorization from the individual who is the subject of the record.



Sec.  297.205  Access to medical records.

    When a request for access involves medical or psychological records 
that the system manager believes requires special handling, the 
requester should be advised that the material will be provided only to a 
physician designated by the data subject. Upon receipt of the 
designation and upon verification of the physician's identity, the 
records will be made available to the physician, who will have full 
authority to disclose those records to the data subject when 
appropriate.



Sec.  297.206  Fees charged by the Office.

    (a) No fees will be charged for search and review time expended by 
the Office to produce a record, or for making a photostatic copy of the 
record, or for having it personally reviewed by the data subject, when a 
record is retrieved from a system of records pertaining to that data 
subject. Additional copies provided may be charged under the Office's 
established fee schedule.
    (b) When the fees chargeable under this section will amount to more 
than $25, the requester will be notified and payment of fees may be 
required before the records are provided.
    (c) Remittance should be made by either a personal check, bank 
draft, or a money order that is made payable to

[[Page 116]]

the U.S. Office of Personnel Management and addressed to the appropriate 
system manager.



Sec.  297.207  Denials of access and appeals with respect to such denials.

    (a) If an access request is denied, the Office or agency response 
will be in writing and will include a statement of the reasons for the 
denial and the procedures available to appeal the denial, including the 
name, position title, and address of the Office official responsible for 
the review.
    (b) Nothing in this part should be construed to entitle a data 
subject the right to access any information compiled in reasonable 
anticipation of a civil action or proceeding.
    (c) For denials of access made under this subpart, the following 
procedures apply:
    (1) For initial denials made by an agency, when the record is 
maintained in an Office Governmentwide system of records, a request for 
adminstrative review should be made only to the Assistant Director for 
Workforce Information, Personnel Systems and Oversight Group, U.S. 
Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.
    (2) For denials initially made by an Office official, when a record 
is maintained in an internal or central system of records, a request for 
administrative review should be made to the Information and Privacy 
Appeals Counsel, Office of the General Counsel, U.S. Office of Personnel 
Management, 1900 E Street NW., Washington, DC 20415.
    (3) Any administrative review decision that either partially or 
fully supports the initial decision and denies access to the material 
the individual originally sought should state the requester's right to 
seek judicial review of the final administrative decision.



Sec.  297.208  Judicial review.

    Upon receipt of notification that the denial of access has been 
upheld on administrative review, the requester has the right to judicial 
review of the decision for up to 2 years from the date on which the 
cause of action arose. Judicial review may be sought in the district 
court of the United States in the district in which--
    (a) The requester resides;
    (b) The requester has his or her principal place of business; or
    (c) The agency records are situated; or it may be sought in the 
district court of the District of Columbia.



                     Subpart C_Amendment of Records



Sec.  297.301  General provisions.

    (a) Individuals may request, in writing, the amendment of their 
records maintained in an Office system of records by contacting the 
appropriate system manager. The Office or agency will require proof of 
identity from a requester. The Office or agency reserves the right to 
determine the adequacy of any such proof. The general identifying items 
the Office will require a requester to provide when a request is made to 
the Office are--
    (1) Full name, signature, and home address;
    (2) Social security number (for systems of records that include this 
identifier);
    (3) Current or last place and dates of Federal employment, when 
appropriate; and
    (4) Date and place of birth.
    (b) An individual may be represented by another party when 
requesting amendment of records.
    (c) A request for amendment should include the following:
    (1) The precise identification of the records to be amended;
    (2) The identification of the specific material to be deleted, 
added, or changed; and
    (3) A statement of the reasons for the request, including all 
available material substantiating the request.
    (d) Requests for amendment of records should include the words 
``PRIVACY ACT AMENDMENT REQUEST'' in capital letters on both the 
envelope and at the top of the request letter.
    (e) A request for administrative review of an agency denial to amend 
a record in the Office's systems of records should be addressed to the 
Assistant Director for Workforce Information, Personnel Systems and 
Oversight Group, U.S. Office of Personnel

[[Page 117]]

Management, 1900 E Street NW., Washington, DC 20415.
    (f) A request for administrative review of a denial to amend a 
record by an Office official should be addressed to the Information and 
Privacy Appeals Counsel, Office of the General Counsel, U.S. Office of 
Personnel Management, 1900 E Street NW., Washington, DC 20415.
    (g) The burden of proof demonstrating the appropriateness of the 
requested amendment rests with the requester; and, the requester must 
provide relevant and convincing evidence in support of the request.



Sec.  297.302  Time limits.

    The system manager should acknowledge receipt of an amendment 
request within 10 working days and issue a determination as soon as 
practicable. This timeframe begins when the request is received by the 
proper Office or agency official.



Sec.  297.303  Applicability of amendment provisions.

    (a) The amendment procedures are not intended to allow a challenge 
to material that records an event that actually occurred nor are they 
designed to permit a collateral attack upon that which has been or could 
have been the subject of a judicial, quasi-judicial, or administrative 
proceeding. The amendment procedures are also not designed to change 
opinions in records pertaining to the individual.
    (b) The amendment procedures apply to situations when an occurrence 
that is documented was challenged through an established judicial, 
quasi-judicial, or administrative procedure and found to be inaccurately 
described; when the document is not identical to the individual's copy; 
or when the document is not created in accordance with the applicable 
recordkeeping requirements. (For example, the amendment provisions are 
not designed to allow a challenge to the merits of an agency adverse 
action that is documented in an individual's Official Personnel Folder.)



Sec.  297.304  Approval of requests to amend records.

    (a) If the system manager determines that amendment of a record is 
appropriate, the system manager will take the necessary steps to have 
the necessary changes made and will see that the individual receives a 
copy of the amended record.
    (b) When practicable and appropriate, the system manager will advise 
all prior recipients of the fact that an amendment of a record has been 
made.



Sec.  297.305  Denial of requests to amend records.

    (a) If the Office or agency system manager decides not to amend the 
record in the manner sought, the requester should be notified in writing 
of the reasons for the denial.
    (b) The decision letter should also include the requester's right to 
appeal the denial and the procedures for appealing the denial to the 
appropriate official.



Sec.  297.306  Appeal of a denial of a request to amend a record.

    (a) An individual who disagrees with an initial denial to amend a 
record may file a written appeal of that denial to the appropriate 
official. In submitting an appeal, the individual should provide a copy 
of the original request for amendment, a copy of the initial denial 
decision, and a statement of the specific reasons why the initial denial 
is believed to be in error. Any appeal should be submitted to the 
official designated in the initial decision letter. The appeal should 
include the words ``PRIVACY ACT APPEAL'' in capital letters on the 
envelope and at the top of the letter of appeal.
    (b) The reviewing official should complete the review and make a 
final determination in writing no later than 30 working days from the 
date on which the appeal is received. When circumstances warrant, this 
timeframe may be extended.
    (c) If the Office grants the appeal, it will take the necessary 
steps either to amend the record itself or to require the originating 
agency to amend the record. When appropriate and possible, prior 
recipients of the record should be notified of the Office's action.

[[Page 118]]

    (d) The Office reserves the right to hold in abeyance any Privacy 
Act appeal concerning a record when an individual is involved in 
challenging an action involving that record in another administrative, 
judicial, or quasi-judicial forum. At the conclusion of such a 
challenge, the individual can resubmit the appeal.
    (e) If the Office denies the appeal, it will include in the decision 
letter notification of the appellant's right to judicial review.



Sec.  297.307  Statement of disagreement.

    (a) Upon receipt of a final administrative determination denying a 
request to amend a record, the requester may file a concise statement of 
disagreement. Such a statement should be filed with the appropriate 
system manager and should include the reasons why the requester believes 
the decision to be incorrect.
    (b) The statement of disagreement should be maintained with the 
record to be amended and any disclosure of the record must include a 
copy of the statement of disagreement.
    (c) When practicable and appropriate, the system manager should 
provide a copy of the statement of disagreement to any individual or 
agency to whom the record was previously disclosed as noted by the 
disclosure accounting.



Sec.  297.308  Judicial review.

    Upon receipt of notification that the denial to amend a record has 
been upheld on administrative review, the requester has the right to 
judicial review of the decision for up to 2 years from the date the 
cause of action arose. Judicial review may be sought in the district 
court of the United States in the district in which--
    (a) The requester resides;
    (b) The requester has his or her principal place of business; or
    (c) The agency records are situated; or it may be sought in the 
district court of the District of Columbia.



                     Subpart D_Disclosure of Records



Sec.  297.401  Conditions of disclosure.

    An official or employee of the Office or agency should not disclose 
a record retrieved from a Governmentwide system of records to any 
person, another agency, or other entity without the express written 
consent of the subject individual unless disclosure is--
    (a) To officers or employees of the Office who have a need for the 
information in the performance of their duties.
    (b) Required by the provisions of the Freedom of Information Act.
    (c) For a routine use as published in the Federal Register.
    (d) To the Bureau of the Census for uses pursuant to title 13 of the 
United States Code.
    (e)(1) To a recipient who has provided the agency with advance 
adequate written assurance that the record will be used solely as a 
statistical research or reporting record. The record will be transferred 
in a form that is not individually identifiable. The written statement 
should include as a minimum:
    (i) A statement of the purpose for requesting the records; and
    (ii) Certification that the records will be used only for 
statistical purposes.
    (2) These written statements should be maintained as records. In 
addition to deleting personal identifying information from records 
released for statistical purposes, the system manager will reasonably 
ensure that the identity of the individual cannot be deduced by 
combining various statistical records.
    (f) To the National Archives of the United States as a record that 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States or his or her designee to determine 
whether the record has such value.
    (g) To another agency or instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality or his 
designated representative has made a written request to the Office or 
agency that maintains the record specifying the particular portion 
desired and the law enforcement activity for which the record is sought.

[[Page 119]]

    (h) To a person showing compelling circumstances affecting the 
health and safety of an individual, not necessarily the individual to 
whom the record pertains. Upon such disclosure, a notification should be 
sent to the last known address of the subject individual.
    (i) To the Congress or to a Congressional committee, subcommittee, 
or joint committee to the extent that the subject matter falls within 
its established jurisdiction.
    (j) To the Comptroller General or any authorized representatives of 
the Comptroller General in the course of the performance of the duties 
of the General Accounting Office.
    (k) Pursuant to the order of a court of competent jurisdiction.
    (l) To a consumer reporting agency in accordance with section 3711 
(f) of title 31 of the United States Code.



Sec.  297.402  Disclosure pursuant to a compulsory legal process served on the Office.

    For purposes of this section, the Office considers that a subpoena 
signed by a judge is equivalent to a court order.
    (a) The Office may disclose, without prior consent of the data 
subject, specified information from a system of records whenever such 
disclosure is pursuant to an order signed by the appropriate official of 
a court of competent jurisdiction or quasi-judicial agency. In this 
subpart, a court of competent jurisdiction includes the judicial system 
of a state, territory, or possession of the United States.
    (b) Notice of the order will be provided to the data subject by the 
Office as soon as practicable after service of the order. The notice 
should be mailed to the last known address of the individual and state 
the name and number of the case or proceeding, and the nature of the 
information sought.
    (c) Before complying or refusing to comply with the order, an 
official with authority to disclose records under this subpart should 
consult legal counsel to ensure that the response is appropriate.
    (d) Before responding to the order or subpoena signed by a judge, an 
official with authority to disclose records under this subpart in 
consulting with legal counsel will ensure that--
    (1) The requested material is relevant to the subject matter of the 
related judicial or administrative proceeding;
    (2) Motion is made to quash or modify an order that is unreasonable 
or oppressive:
    (3) Motion is made for a protective order when necessary to restrict 
the use or disclosure of any information furnished for purposes other 
than those of the involved proceeding; or
    (4) Request is made for an extension of time allowed for response, 
if necessary.
    (e) If an order or subpoena signed by a judge for production of 
documents also requests appearance of an Office employee, the response 
should be to furnish certified copies of the appropriate records. In 
those situations where the subpoena is not signed by a judge, the Office 
will return the document to the sender and indicate that no action will 
be taken to provide records until the subpoena is signed by a judge.
    (f) If oral testimony is requested by the order or subpoena signed 
by a judge, an explanation that sets forth the testimony desired must be 
furnished to the Office system manager. The individual who has been 
ordered or subpoenaed to testify should consult with counsel to 
determine the matters about which the individual may properly testify.
    (g) In all situations concerning an order, subpoena signed by a 
judge, or other demand for an employee of the Office to produce any 
material or testimony concerning the records that are subject to the 
order, that are contained in the Office's systems of records, and that 
are acquired as part of the employee's official duties, the employee 
shall not provide the information without the prior approval of the 
appropriate Office official.
    (h) If it is determined that the information should not be provided, 
the individual ordered or subpoenaed to do so should respectfully 
decline to comply with the demand based on the instructions from the 
appropriate Office official.
    (i) Notice of the issuance of the ex parte order or subpoena signed 
by a

[[Page 120]]

judge is not required if the system of records has been exempted from 
the notice requirement of 5 U.S.C. 552a(e)(8) pursuant to 5 U.S.C. 
552a(j) by a Notice of Exemption published in the Federal Register.

[53 FR 1998, Jan. 26, 1988, as amended at 57 FR 56732, Nov. 30, 1992]



Sec.  297.403  Accounting of disclosure.

    (a) The Office or agency will maintain a record of disclosures in 
cases where records about the individual are disclosed from an Office 
system of records except--
    (1) When the disclosure is made pursuant to the Freedom of 
Information Act, as amended (5 U.S.C. 552); or
    (2) When the disclosure is made to those officers and employees of 
the Office or agency who have a need for the record in the performance 
of their duties.
    (b) This accounting of the disclosures will be retained for at least 
5 years or for the life of the record, whichever is longer, and will 
contain the following information:
    (1) A brief description of the record disclosed;
    (2) The date, nature, and purpose for the disclosure; and
    (3) The name and address of the purpose, agency, or other entity to 
whom the disclosure is made.
    (c) Except for the accounting of disclosure made to agencies, 
individuals, or entities in law enforcement activities or disclosures 
made from the Office's exempt systems of records, the accounting of 
disclosures will be made available to the data subject upon request in 
accordance with the access procedures of this part.

[53 FR 1998, Jan. 26, 1988. Redesignated at 57 FR 56732, Nov. 30, 1992]



                        Subpart E_Exempt Records



Sec.  297.501  Exemptions.

    (a) Several of the Office's internal, central, and Governmentwide 
systems of records contain information for which exemptions appearing at 
5 U.S.C. 552a(k) (1), (2), (3), (5), and (6) may be claimed. The systems 
of records for which the exemptions are claimed, the specific exemptions 
determined to be necessary and proper with respect to these systems of 
records, the records exempted, the provisions of the act from which they 
are exempted, and the justifications for the exemptions are set forth 
below.
    (b) Specific exemptions--(1) Inspector General Investigations Case 
File Records (OPM/CENTRAL-4). All information in these records that 
meets the criteria stated in 5 U.S.C. 552a(k) (1), (2), (3), (4), (5), 
(6), and (7) is exempt from the requirements of 5 U.S.C. 552a(c)(3) and 
(d). These provisions of the Privacy Act relate to making accountings of 
disclosures available to the data subject and access to and amendment of 
records. The specific applicability of the exemptions to this system and 
the reasons for the exemptions are as follows:
    (i) Inspector General investigations may contain properly classified 
information that pertains to national defense and foreign policy 
obtained from other systems or another Federal agency. Application of 
exemption (k)(1) may be necessary to preclude the data subject's access 
to and amendment of such classified information under 5 U.S.C. 552a(d).
    (ii) Inspector General investigations may contain investigatory 
material compiled for law enforcement purposes other than material 
within the scope of 5 U.S.C. 552a(j)(2); e.g., investigations into the 
administration of the merit system. Application of exemption (k)(2) may 
be necessary to preclude the data subject's access to or amendment of 
such records under 5 U.S.C. 552(a)(3) and (d).
    (iii) Inspector General investigations may contain information 
obtained from another system or Federal agency that relates to providing 
protective services to the President of the United States or other 
individuals pursuant to 18 U.S.C. 3056. Application of exemption (k)(3) 
may be necessary to preclude the data subject's access to and amendment 
of such records under 5 U.S.C. 552a(d).
    (iv) Inspector General case files may contain information that, by 
statute, is required to be maintained and used solely as a statistical 
record. Application of exemption (k)(4) may be necessary to ensure 
compliance with such a statutory mandate.

[[Page 121]]

    (v) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d). This exemption is claimed 
because this system contains investigatory material that if disclosed 
may reveal the identity of a source who furnished information to the 
Government under an express promise that the source's identity would be 
held in confidence or, prior to September 27, 1975, under an implied 
promise. The application of exemption (k)(5) will be required to honor 
promises of confidentiality should the data subject request access to or 
amendment of the records, or access to the accounting of disclosures of 
the record.
    (vi) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 
552a(d) relating to access to and amendment of records by the data 
subject. This exemption is claimed because portions of a case file 
record may relate to testing and examining material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service. Access to or amendment of this information by the data 
subject would compromise the objectivity and fairness of the testing or 
examining process.
    (vii) Inspector General case files may contain evaluation material 
used to determine potential for promotion in the armed services. 
Application of exemption (k)(7) may be necessary, but only to the extent 
that the disclosure of the data would reveal the identity of a source 
who furnished information to the Government under an express promise 
that the identity of the source would be held in confidence, or, prior 
to September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (2) Administrative Law Judge Applicant Records (OPM/CENTRAL-6). (i) 
All information about individuals in these records that meets the 
criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the requirement of 
5 U.S.C. 552(c)(3) and (d). The exemptions are claimed because this 
system contains investigatory material compiled solely for determining 
suitability, eligibility, and qualifications for Federal civilian 
employment. To the extent that the disclosure of such material would 
reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence or, prior to September 27, 1975, under an 
implied promise that the identity of the source would be held in 
confidence, the application of exemption (k)(5) will be required to 
honor promises of confidentialty should the data subject request access 
to the accounting of disclosures of the record, or access to or 
amendment of the record.
    (ii) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to and amendment of the records by the data 
subject. This exemption is claimed because portions of this system 
relate to testing and examining materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service. Access to or amendment of this information by the data subject 
would compromise the objectivity and fairness of the testing or examing 
process.
    (3) Litigation and Claims Records (OPM/CENTRAL-7). (i) When 
litigation or claim cases occur, information from other existing systems 
of records may be incorporated into the case file. This information may 
be material for which exemptions have been claimed by the Office in this 
section. To the extent that such exempt material is incorporated into a 
litigation or claim case file, the appropriate exemption (5 U.S.C. 
552a(k)(1), (2), (3), (4), (5), (6), or (7)) shall also apply to the 
material as it appears in this system. The exemptions will be only from 
those provisions of the Act that were claimed for the systems from which 
the records originated.
    (ii) During the course of litigation or claims cases, it may be 
necessary to conduct investigations to develop information and evidence 
relevant to the case. These investigative records may include material 
meeting the criteria stated in 5 U.S.C. 552a(k)(1), (2), (3), (4), (5), 
(6), and (7). Such material is exempt from the requirement of 5 U.S.C.

[[Page 122]]

552a(c)(3) and (d). These provisions of the Act relate to making 
accounting of disclosures available to the data subject and access to 
and amendment of records. The specific applicability of the exemptions 
to this system and the reasons for the exemptions are:
    (A) Such investigations may contain properly classified information 
that pertains to national defense and foreign policy obtained from 
another Federal agency. Application of exemption (k)(1) may be necessary 
to preclude the data subject's access to and amendment of suh classified 
information under 5 U.S.C 552a(d).
    (B) Such investigations may contain investigatory material compiled 
for law enforcement purposes othe than material within the scope of 5 
U.S.C. 552a(j)(2), e.g., administration of the merit system, obtained 
from another Federal agency. All information about individuals in these 
records that meets the criteria of 5 U.S.C 552a(k)(2) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d). Application of exemption 
(k)(2) may be necessary to preclude the data subject's access to or 
amendment of those records.
    (C) Such investigations may contain information obtained from 
another agency that relates to providing protective services to the 
President of the United States or other individuals pursuant to 18 
U.S.C. 3056. All information about individuals in these records that 
meets the criteria of 5 U.S.C. 552a(k)(3) is exempt from the 
requirements of 5 U.S.C. 552a(d), relating to access to or amendment of 
records by the data subject. Application of exemption (k)(3) may be 
necessary to preclude the data subject's access to and amendment of such 
records.
    (D) Such investigations may contain information that, by statute, is 
required to be maintained and used solely as a statistical record. 
Application of exemption (k)(4) may be necessary to ensure compliance 
with such a statutory mandate.
    (E) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a (c)(3) and (d). These exemptions are 
claimed because this system contains investigatory material compiled 
solely for determining suitability, eligibility, and qualifications for 
Federal civilian employment. To the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to September 27, 1975, 
under an implied promise that the identity of the source would be held 
in confidence, the application of exemption (k)(5) will be required to 
honor such a promise should the data subject request access to the 
accounting of disclosure, or access to or amendment of the record, that 
would reveal the identity of a confidential source.
    (F) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to and amendment of the records by the data 
subject. This exemption is claimed because portions of this system 
relate to testing or examining materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service. Access to or amendment by the data subject of this information 
would compromise the objectivity and fairness of the testing or 
examining process.
    (G) Such investigations may contain evaluation material used to 
determine potential for promotion in the armed services. Application of 
exemption (k)(7) may be necessary, but only to the extent that the 
disclosure of the data would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (4) Privacy Act/Freedom of Information Case Records (OPM/CENTRAL-8). 
In this subpart, the Office has claimed exemptions for its other systems 
of records where it felt such exemptions are appropriate and necessary. 
These exemptions are claimed under 5 U.S.C. 552a(k) (1), (2), (3), (4), 
(5), (6) and (7). During the processing of a Privacy Act/Freedom of 
Information Act request (which

[[Page 123]]

may include access requests, amendment requests, and requests for review 
for initial denials of such requests) exempt materials from those other 
systems may in turn become part of the case record in this system. To 
the extent that copies of exempt records from those other systems are 
entered into this system, the Office hereby claims the same exemptions 
for the records from those other systems that are entered into this 
system, as claimed for the original primary system of which they are a 
part.
    (5) Personnel Investigations Records (OPM/CENTRAL-9). All 
information in these records that meets the criteria stated in 5 U.S.C. 
552a(k) (1), (2), (3), (4), (5), (6), and (7) is exempt from the 
requirements of 5 U.S.C. 552a (c)(3) and (d). These provisions of the 
Privacy Act relate to making accountings of disclosures available to the 
data subject and access to and amendment of records. The specific 
applicability of the exemptions to this system and the reasons for the 
exemptions are as follows:
    (i) Personnel investigations may contain properly classified 
information which pertains to national defense and foreign policy 
obtained from another Federal agency. Application of exemption (k)(1) 
may be necessary to preclude the data subject's access to and amendment 
of such classified information under 5 U.S.C. 552a(d).
    (ii) Personnel investigations may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2); e.g., investigations into the 
administration of the merit system. Application of exemption (k)(2) may 
be necessary to preclude the data subject's access to or amended of such 
records under 5 U.S.C. 552a (c)(3) and (d).
    (iii) Personnel investigations may contain information obtained from 
another Federal agency that relates to providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056. Application of exemption (k)(3) may be necessary to 
preclude the data subject's access to and amendment of such records 
under 5 U.S.C. 552a(d).
    (iv) Personnel investigations may contain information that, by 
statute, is required to be maintained and used solely as a statistical 
record. Application of exemption (k)(4) may be necessary to ensure 
compliance with such a statutory mandate.
    (v) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a (c)(3) and (d). These exemptions are 
claimed because this system contains investigatory material compiled 
solely for determining suitability, eligibility, and qualifications for 
Federal civilian employment. To the extent that the disclosure of 
material would reveal the identity of a source who furnished information 
to the Government under an express promise that the identity of the 
source would be held in confidence, or, prior to September 27, 1975, 
under an implied promise that the identity of the source would be held 
in confidence, the applicability of exemption (k)(5) will be required to 
honor promises of confidentiality should the data subject request access 
to or amendment of the record, or access to the accounting of 
disclosures of the record.
    (vi) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to and amendment of records by the data 
subject. This exemption is claimed because portions of this system 
relate to testing or examining materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service. Access to or amendment of this information by the data subject 
would compromise the objectivity and fairness of the testing or 
examining process.
    (vii) Personnel Investigations may contain evaluation material used 
to determine potential for promotion in the armed services. Application 
of exemption (k)(7) may be necessary, but only to the extent that the 
disclosure of the data would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.

[[Page 124]]

    (6) Presidential Management Fellows Program Records (OPM/CENTRAL-
11). All information in these records that meets the criteria stated in 
5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 552a(d), 
relating to access to and amendment of records by the data subject. This 
exemption is claimed because portions of this system relate to testing 
or examining materials used solely to determine individual 
qualifications for appointment or promotion in the Federal service and 
access to or amendment of this information by the data subject would 
compromise the objectivity and fairness of the testing or examining 
process.
    (7) Recruiting, Examining, and Placement Records (OPM/GOVT-5). (i) 
All information about individuals in these records that meets the 
criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the requirements 
of 5 U.S.C. 552a(c)(3) and (d). These provisions of the Privacy Act 
relate to making accountings of disclosures available to the data 
subject and access to and amendment of records. These exemptions are 
claimed because this system contains investigative material compiled 
solely for determining the appropriateness of a request for approval of 
an objection to an eligible's qualification for employment in the 
Federal service. To the extent that the disclosure of such material 
would reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence, or prior to September 27, 1975, under an 
implied promise that the identity of the source would be held in 
confidence, the application of exemption (k)(5) will be required to 
honor promises of confidentiality should the data subject request access 
to the accounting of disclosures of the record, or access to or 
amendment of the record.
    (ii) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(K)(6) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to an amendment of records by the subject. 
This exemption is claimed because portions of this system relate to 
testing or examining materials used solely to determine individual 
qualifications for appointment or promotion in the Federal service and 
access to or amendment of this information by the data subject would 
compromise the objectivity and fairness of the testing or examining 
process.
    (8) Personnel Research and Test Validation Records (OPM/GOVT-6). (i) 
All information in these records that meets the criteria stated in 5 
U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 552a(d), 
relating to access to and amendment of the records by the data subject. 
This exemption is claimed because portions of this system relate to 
testing or examining materials used solely to determine individual 
qualifications for appointment or promotion in the Federal service. 
Access to or amendment of this information by the data subject would 
compromise the objectivity and fairness of the testing or examining 
process.
    (ii) All information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(4) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to or amendment of the records by the data 
subject. This exemption is claimed because portions of this system 
relate to records required by statute to be maintained and used solely 
for statistical purposes. Access to or amendment of this information by 
the data subject would compromise the confidentiality of these records 
and their usefulness for statistical research purposes.
    (c) The Office also reserves the right to assert exemptions for 
records received from another agency that could be properly claimed by 
that agency in responding to a request. The Office may refuse access to 
information compiled in reasonable anticipation of a civil action or 
proceeding.

[53 FR 1998, Jan. 26, 1988, as amended at 57 FR 20956, May 18, 1992; 70 
FR 28779, May 19, 2005]



PART 300_EMPLOYMENT (GENERAL)--Table of Contents




                     Subpart A_Employment Practices

Sec.
300.101 Purpose.
300.102 Policy.

[[Page 125]]

300.103 Basic requirements.
300.104 Appeals, grievances and complaints.

               Subpart B_Examinations and Related Subjects

300.201 Examinations.

                     Subpart C_Details of Employees

300.301 Authority.

 Subpart D_Use of Commercial Recruiting Firms and Nonprofit Employment 
                                Services

300.401 Definitions.
300.402 Coverage.
300.403 When commercial recruiting firms and nonprofit employment 
          services may be used.
300.404 Use of fee-charging firms.
300.405 Requirement for contract.
300.406 Agency responsibilities.
300.407 Documentation.
300.408 Corrective action.

               Subpart E_Use of Private Sector Temporaries

300.501 Definitions.
300.502 Coverage.
300.503 Conditions for using private sector temporaries.
300.504 Prohibition on employer-employee relationship.
300.505 Relationship of civil service procedures.
300.506 Requirements of procurement.
300.507 Documentation and oversight.

                  Subpart F_Time-in-Grade Restrictions

300.601 Purpose.
300.602 Definitions.
300.603 Coverage.
300.604 Restrictions.
300.605 Creditable service.
300.606 Agency authority.

 Subpart G_Statutory Bar to Appointment of Persons Who Fail To Register 
                       Under Selective Service Law

300.701 Statutory requirement.
300.702 Coverage.
300.703 Definitions.
300.704 Considering individuals for appointment.
300.705 Agency action following statement.
300.706 Office of Personnel Management adjudication.
300.707 Termination of employment.

    Authority: 5 U.S.C. 552, 3301, and 3302; E.O. 10577, 3 CFR 1954-1958 
Comp., page 218, unless otherwise noted.
    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 7204, 
and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 1302(c), 
2301, and 2302.
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 1103(a)(5).
    Sec. 300.603 also issued under 5 U.S.C. 1104.



                     Subpart A_Employment Practices



Sec.  300.101  Purpose.

    The purpose of this subpart is to establish principles to govern, as 
nearly as is administratively feasible and practical, the employment 
practices of the Federal Government generally, and of individual 
agencies, that affect the recruitment, measurement, ranking, and 
selection of individuals for initial appointment and competitive 
promotion in the competitive service or in positions in the government 
of the District of Columbia required to be filled in the same manner 
that positions in the competitive service are filled. For the purpose of 
this subpart, the term ``employment practices'' includes the development 
and use of examinations, qualification standards, tests, and other 
measurement instruments.

[36 FR 15447, Aug. 14, 1971]



Sec.  300.102  Policy.

    This subpart is directed to implementation of the policy that 
competitive employment practices:
    (a) Be practical in character and as far as possible relate to 
matters that fairly test the relative capacity and fitness of candidates 
for the jobs to be filled;
    (b) Result in selection from among the best qualified candidates;
    (c) Be developed and used without discrimination because of race, 
color, religion, sex, age, national origin, partisan political 
affiliation or other nonmerit grounds; and
    (d) Insure to the candidate opportunity for appeal or administrative 
review, as appropriate.

[40 FR 15379, Apr. 7, 1975]



Sec.  300.103  Basic requirements.

    (a) Job analysis. Each employment practice of the Federal Government 
generally, and of individual agencies,

[[Page 126]]

shall be based on a job analysis to identify:
    (1) The basic duties and responsibilities;
    (2) The knowledges, skills, and abilities required to perform the 
duties and responsibilities; and
    (3) The factors that are important in evaluating candidates. The job 
analysis may cover a single position or group of positions, or an 
occupation or group of occupations, having common characteristics.
    (b) Relevance. (1) There shall be a rational relationship between 
performance in the position to be filled (or in the target position in 
the case of an entry position) and the employment practice used. The 
demonstration of rational relationship shall include a showing that the 
employment practice was professionally developed. A minimum educational 
requirement may not be established except as authorized under section 
3308 of title 5, United States Code.
    (2) In the case of an entry position the required relevance may be 
based upon the target position when--
    (i) The entry position is a training position or the first of a 
progressive series of established training and development positions 
leading to a target position at a higher level; and
    (ii) New employees, within a reasonable period of time and in the 
great majority of cases, can expect to progress to a target position at 
a higher level.
    (c) Equal employment opportunity. An employment practice shall not 
discriminate on the basis of race, color, religion, sex, age, national 
origin, partisan political affiliation, or other nonmerit factor. 
Employee selection procedures shall meet the standards established by 
the ``Uniform Guidelines on Employee Selection Procedures'' (1978), 43 
FR 38290 (August 25, 1978).

[40 FR 15380, Apr. 7, 1975, as amended at 43 FR 38310, Aug. 25, 1978]



Sec.  300.104  Appeals, grievances and complaints.

    (a) Employment practices. A candidate who believes that an 
employment practice which was applied to him or her by the Office of 
Personnel Management violates a basic requirement in Sec.  300.103 is 
entitled to appeal to the Merit Systems Protection Board under the 
provisions of its regulations.
    (b) Examination ratings. A candidate may file an appeal with the 
Office from his or her examination rating or the rejection of his or her 
application, except that, where the Office has delegated examining 
authority to an agency, the candidate should appeal directly to that 
agency. The appeal and supporting documents shall be filed with the 
agency office that determined the rating.
    (c) Complaints and grievances to an agency. (1) A candidate may file 
a complaint with an agency when he believes that an employment practice 
which was applied to him and which is administered or required by the 
agency discriminates against him on the basis of race, color, religion, 
sex, or national origin; or age, provided that at the time of the 
alleged discriminatory action the candidate was at least 40 years of age 
but less than 65 years of age. The complaint shall be filed and 
processed in accordance with subparts B and E of part 713 of this 
chapter.
    (2) Except as provided in paragraph (c)(1) of this section, an 
employee may file a grievance with an agency when he or she believes 
that an employment practice which was applied to him or her and which is 
administered or required by the agency violates a basic requirement in 
Sec.  300.103. The grievance shall be filed and processed under an 
agency grievance system, if applicable, or a negotiated grievance system 
as applicable.

[40 FR 15380, Apr. 7, 1975, as amended at 41 FR 51579, Nov. 23, 1976; 44 
FR 48951, Aug. 21, 1979; 60 FR 3057, Jan. 13, 1995; 60 FR 47040, Sept. 
11, 1995]



               Subpart B_Examinations and Related Subjects



Sec.  300.201  Examinations.

    (a) The Office makes available information that will assist members 
of the public in understanding the purpose of, and preparing for, civil 
service examinations. This includes the types of questions and the 
categories of knowledge or skill pertinent to a particular

[[Page 127]]

examination. The Office does not release the following: (1) Testing and 
examination materials used solely to determine individual 
qualifications, and (2) test material, including test plans, item 
analysis data, criterion instruments, and other material the disclosure 
of which would compromise the objectivity of the testing process.
    (b) The Office maintains control over the security and release of 
testing and examination materials which it has developed and made 
available to agencies for initial competitive appointment or inservice 
use unless the materials were developed specifically for an agency 
through a reimbursable contractual agreement. These testing and 
examination materials include, and are subject to the same controls as, 
those described in paragraphs (a)(1) and (a)(2) of this section.
    (c) Each employee entrusted with test material has a positive duty 
to protect the confidentiality of that material and to assure release 
only as required to conduct an examination authorized by the Office.
    (d) An applicant may review his or her own answers in a written 
test, but only in the presence of an employee of the Office or, for the 
convenience of the Office and requester, in the presence of an employee 
of another agency designated by OPM. The applicant may not review a test 
booklet in connection with this review.
    (e) The Office will release information concerning the results of 
examinations only to the individual concerned, or to parties explicitly 
designated by the individual.
    (f) The Office will not reveal the names of applicants for civil 
service positions or eligibles on civil service registers, certificates, 
employment lists, or other lists of eligibles, or their ratings or 
relative standings.

[50 FR 3312, Jan. 24, 1985, as amended at 60 FR 3057, Jan. 13, 1995]



                     Subpart C_Details of Employees



Sec.  300.301  Authority.

    (a) In accordance with 5 U.S.C. 3341, an agency may detail an 
employee in the competitive service to a position in either the 
competitive or excepted service.
    (b) In accordance with 5 U.S.C. 3341, an agency may detail an 
employee in the excepted service to a position in the excepted service 
and may also detail an excepted service employee serving under Schedule 
A, Schedule B, or a Veterans Recruitment Appointment, to a position in 
the competitive service.
    (c) Any other detail of an employee in the excepted service to a 
position in the competitive service may be made only with the prior 
approval of the Office of Personnel Management or under a delegated 
agreement between the agency and OPM.

[60 FR 3057, Jan. 13, 1995, as amended at 70 FR 72066, Dec. 1, 2005]



 Subpart D_Use of Commercial Recruiting Firms and Nonprofit Employment 
                                Services

    Source: 53 FR 51222, Dec. 21, 1988, unless otherwise noted.



Sec.  300.401  Definitions.

    For purposes of this subpart:
    (a) A commercial recruiting firm is a profit-making entity which, by 
contract, supplies individual candidates for consideration for specific 
Federal vacancies, in accordance with the requirements set by the 
Federal agency.
    (b) A nonprofit employment service is one legally established as 
nonprofit under State law. It may be operated, for example, by 
professional societies, organizations of college graduates, social 
agencies, or a State or local government. Federal agencies may not, 
however, use a nonprofit employment service sponsored by a partisan 
political organization. By contract, a nonprofit employment service 
supplies individual candidates for consideration for specific Federal 
vacancies, in accordance with the requirements set by the Federal 
agency.



Sec.  300.402  Coverage.

    This part applies to filling positions in the competitive service; 
positions in the expected service under Schedules A, B, and C; and 
positions in the Senior Executive Service.

[57 FR 10124, Mar. 24, 1992]

[[Page 128]]



Sec.  300.403  When commercial recruiting firms and nonprofit employment services may be used.

    An agency may use a commercial recruiting firm and/or a nonprofit 
employment service in recruiting for vacancies when:
    (a) The agency head or designee determines that such use is likely 
to provide well-qualified candidates who would otherwise not be 
available or that well-qualified candidates are in short supply;
    (b) The agency has provided vacancy notices to appropriate State 
Employment Service and OPM offices; and
    (c) The agency continues its own recruiting efforts.



Sec.  300.404  Use of fee-charging firms.

    (a) Federal agencies are prohibited from using commercial recruiting 
firms and nonprofit employment services which charge fees to individuals 
referred to Federal positions. Federal agencies may not consider a 
candidate referred by a commercial recruiting firm or nonprofit 
employment service if the individual has paid or is expected to pay any 
fee to the firm or service.
    (b) The prohibition in paragraph (a) of this section does not apply 
to registration fees paid by individuals to nonprofit employment 
services operated by professional organizations when the registration 
fee is imposed regardless of whether the registrant is referred for 
employment or placed.



Sec.  300.405  Requirement for contract.

    (a) A written contract awarded in accordance with procedures 
stipulated in the Federal Acquisition Regulations is required between 
the Federal agency and a commercial recruiting firm or nonprofit 
employment service. The contract will satisfy the ``written request'' 
required by 18 U.S.C. 211. That statute prohibits the acceptance of 
payment for aiding an individual to obtain Federal employment except 
when an employment agency renders services pursuant to the written 
request of an executive department or agency.
    (b) The contract must include the qualifications requirements for 
the position(s) to be filled and also provide that the firm or service 
will:
    (1) Screen candidates only against the basic qualifications 
requirements for the position(s) specified by the Federal agency in the 
contract and refer to the agency all candidates who appear to meet those 
requirements;
    (2) Refer to the Federal agency only those applicants from whom the 
firm or service has not accepted fees other than those permitted under 
Sec.  300.404(b) of this part;
    (3) Not imply that it is the sole or primary avenue for employment 
with the Federal Government or a specific Federal agency; and
    (4) Recruit and refer candidates in accordance with applicable merit 
principles and equal opportunity laws.



Sec.  300.406  Agency responsibilities.

    (a) The purpose of a commercial recruiting firm or nonprofit 
employment service is to serve as an additional source of applicants. 
Once recruited, applicants must be evaluated and appointed through 
regular civil service employment procedures.
    (1) For a competitive service position, an individual must be 
appointed in accordance with the terms of applicable competitive service 
procedures.
    (2) For an excepted service position, an individual must be 
appointed in accordance with the terms of the applicable appointing 
authority and the requirements set out in part 302 of this chapter.
    (3) For a Senior Executive Service position filled by career 
appointment, an individual must be appointed in accordance with the 
competitive process described in 5 U.S.C. 3393.
    (b) In order to use commercial recruiting firms or nonprofit 
employment services, agencies are required to:
    (1) Make known that applicants may apply directly to the Government 
and thus need not apply through the commercial recruiting firm or 
nonprofit employment service;
    (2) Give the same consideration to candidates who have applied 
directly and candidates referred from the commercial recruiting firm or 
nonprofit employment service; and
    (3) Follow all requirements for appointment, including veterans 
preference, where applicable.

[[Page 129]]



Sec.  300.407  Documentation.

    (a) Agencies are required to maintain records necessary to determine 
that using commercial recruiting firms or nonprofit employment services 
is cost effective and has not resulted in the violation of merit system 
principles or the commission of any prohibited personnel practice.
    (b) When requested by OPM, agencies will provide reports on the use 
of commercial recruiting firms, based on the records required in 
paragraph (a) of this section.

[53 FR 51222, Dec. 21, 1988, as amended at 60 FR 3057, Jan. 13, 1995]



Sec.  300.408  Corrective action.

    Upon evidence of failure to comply with these regulations, OPM may, 
pursuant to its authority, order the agency to take appropriate 
corrective action.



               Subpart E_Use of Private Sector Temporaries

    Source: 54 FR 3766, Jan. 25, 1989, unless otherwise noted.



Sec.  300.501  Definitions.

    For purposes of this subpart:
    (a) A temporary help service firm is a private sector entity which 
quickly provides other organizations with specific services performed by 
its pool of employees, possessing the appropriate work skills, for brief 
or intermittent periods. The firm is the legally responsible employer 
and maintains that relationship during the time its employees are 
assigned to a client. The firm, not the client organization, recruits, 
tests, hires, trains, assigns, pays, provides benefits and leave to, and 
as necessary, addresses performance problems, disciplines, and 
terminates its employees. Among other employer obligations, the firm is 
responsible for payroll deductions and payment of income taxes, social 
security (FICA), unemployment insurance, and workers' compensation, and 
shall provide required liability insurance and bonding.
    (b) Private sector temporaries or outside temporaries are those 
employees of a temporary help service firm who are supervised and paid 
by that firm and whom that firm assigns to various client organizations 
who have contracted for the temporary use of their skills when required.
    (c) Parental and family responsibilities are defined in OPM 
issuances and include situations such as absence for pregnancy, 
childbirth, child care, and care for elderly or infirm parents or other 
dependents.
    (d) A Federal supervisor of Federal employees is defined in 5 U.S.C. 
7103(a)(10) as

an individual employed by an agency having authority in the interest of 
the agency to hire, direct, assign, promote, reward, transfer, furlough, 
layoff, recall, suspend, discipline, or remove employees, to adjust 
their grievances, or to effectively recommend such action, if the 
exercise of the authority is not merely routine or clerical in nature 
but requires the consistent exercise of independent judgment * * *

    (e) A critical need is a sudden or unexpected occurrence; an 
emergency; a pressing necessity; or an exigency. Such occasions are 
characterized by additional work or deadlines required by statute, 
Executive order, court order, regulation, or formal directive from the 
head of an agency or subordinate official authorized to take final 
action on behalf of the agency head. A recurring, cyclical peak 
workload, by itself, is not a critical need.
    (f) A local commuting area is defined in part 351 of this chapter.

[54 FR 3766, Jan. 25, 1989, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  300.502  Coverage.

    (a) These regulations apply to the competitive service and to 
Schedules A and B in the excepted service.
    (b) Agencies may not use temporary help services for the Senior 
Executive Service or for the work of managerial or supervisory 
positions.

[61 FR 19510, May 2, 1996]



Sec.  300.503  Conditions for using private sector temporaries.

    An agency may enter into a contract or other procurement arrangement 
with a temporary help service firm for the brief or intermittent use of 
the skills of private sector temporaries,

[[Page 130]]

when required, and may call for those services, subject to these 
conditions:
    (a) One of the following short-term situations exists--
    (1) An employee is absent for a temporary period because of a 
personal need including emergency, accident, illness, parental or family 
responsibilities, or mandatory jury service, but not including vacations 
or other circumstances which are not shown to be compelling in the 
judgment of the agency, or
    (2) An agency must carry out work for a temporary period which 
cannot be delayed in the judgment of the agency because of a critical 
need.
    (b) The need cannot be met with current employees or through the 
direct appointment of temporary employees within the time available by 
the date, and for the duration of time, help is needed. At minimum, this 
should include an agency determination that there are no qualified 
candidates on the applicant supply file and on the reemployment priority 
list (both of which must provide preference for veterans), and no 
qualified disabled veterans with a compensable service-connected 
disability of 30 percent or more under 5 U.S.C. 3112, who are 
immediately available for temporary appointment of the duration 
required, and that employees cannot be reassigned or detailed without 
causing undue delay in their regular work. In instances where a need is 
foreseeable, as when approval of employee absence is requested well in 
advance, an agency may have sufficient time to follow the temporary 
appointment recruiting requirements, including veterans' preference 
found in 5 CFR part 316 to determine whether qualified candidates are 
available by the date needed and for the length of service required.
    (c) These services shall not be used:
    (1) In lieu of the regular recruitment and hiring procedures under 
the civil service laws for permanent appointment in the competitive 
civil service, or
    (2) To displace a Federal employee.
    (3) To circumvent controls on employment levels.
    (4) In lieu of appointing a surplus or displaced Federal employee as 
required by 5 CFR part 330, subpart F (Agency Career Transition 
Assistance Plan for Displaced Employees) and subpart G (Interagency 
Career Transition Assistance Plan for Displaced Employees.)

[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19510, May 2, 1996; 66 
FR 66710, Dec. 27, 2001]



Sec.  300.504  Prohibition on employer-employee relationship

    No employer-employee relationship is created by an agency's use of 
private sector temporaries under these regulations. Services furnished 
by temporary help firms shall be performed by their employees who shall 
not be considered or treated as Federal employees for any purpose, shall 
not be regarded as performing a personal service, and shall not be 
eligible for civil service employee benefits, including retirement. 
Further, to avoid creating any appearance of such a relationship, 
agencies shall observe the following requirements:
    (a) Time limit on use of temporary help service firm. An agency may 
use a temporary help service firm(s) in a single situation, as defined 
in Sec.  300.503, initially for no more than 120 workdays. Provided the 
situation continues to exist beyond the initial 120 workdays, the agency 
may extend its use of temporary help services up to the maximum limit of 
240 workdays.
    (b) Time limit on use of individual employee of a temporary help 
service firm. (1) An individual employee of any temporary help firm may 
work at a major organizational element (headquarters or field) of an 
agency for up to 120 workdays in a 24-month period. The 24-month period 
begins on the first day of assignment.
    (2) An agency may make an exception for an individual to work up to 
a maximum of 240 workdays only when the agency has determined that using 
the services of the same individual for the same situation will prevent 
significant delay.
    (c) Individual employees of a temporary help firm providing 
temporary service to a Federal agency may be eligible for competitive 
civil service employment only if appropriate civil service hiring 
procedures are applied to them.

[[Page 131]]

    (d) Agencies shall train their employees in appropriate procedures 
for interaction with private sector temporaries to assure that the 
supervisory responsibilities identified in paragraph (a) of Sec.  
300.501 of this subpart are carried out by the temporary help service 
firm. At the same time, agencies must give technical, task-related 
instructions to private sector temporaries including orientation, 
assignment of tasks, and review of work products, in order that the 
temporaries may properly perform their services under the contract.

[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19511, May 2, 1996]



Sec.  300.505  Relationship of civil service procedures.

    Agencies continue to have full authority to meet their temporary 
needs by various means, for example, redistributing work, authorizing 
overtime, using in-house pools, and making details or time-limited 
promotions of current employees. In addition, agencies may appoint 
individuals as civil service employees on various work schedules 
appropriate for the work to be performed.

[61 FR 19511, May 2, 1996]



Sec.  300.506  Requirements of procurement.

    (a) Agencies must follow the Federal procurement laws and the 
Federal Acquisition Regulation, as applicable, in procuring services 
from the private sector.
    (b) Agencies should make full use of the provisions of the Federal 
procurement system to make clear that the firm is the legally 
responsible employer and to specify the obligations the firm will have 
to meet to provide effective performance including such matters as the 
types and levels of skills to be provided, deadlines for providing 
service, liability insurance, and, when necessary, security 
requirements. The Federal procurement system also requires contractors 
to comply with affirmative action requirements to employ and advance in 
employment qualified disabled and Vietnam era veterans as provided in 41 
CFR part 60-250, and with public policy programs including equal 
employment opportunity, handicapped employment, and small businesses.



Sec.  300.507  Documentation and oversight.

    Agencies are required to maintain records and provide oversight to 
establish that their use of temporary help service firms is consistent 
with these regulations. As needed, OPM may require agencies to provide 
information on their use of temporary help service firms.

[61 FR 19511, May 2, 1996]



                  Subpart F_Time-In-Grade Restrictions

    Source: 56 FR 23002, May 20, 1991, unless otherwise noted.



Sec.  300.601  Purpose.

    The restrictions in this subpart are intended to prevent excessively 
rapid promotions in competitive service General Schedule positions and 
to protect competitive principles. They provide a budgetary control on 
promotion rates and help assure that appointments are made from 
appropriate registers. These restrictions are in addition to the 
eligibility requirements for promotion in part 335 of this chapter.



Sec.  300.602  Definitions.

    In this subpart--
    Advancement means a promotion (including a temporary promotion) or 
any type of appointment resulting in a higher grade or higher rate of 
basic pay.
    Competitive appointment means an appointment based on selection from 
a competitive examination register of eligibles or under a direct hire 
authority.
    Hardship to an agency involves serious difficulty in filling a 
position, including when:
    (a) The situation to be redressed results from circumstances beyond 
the organization's control and otherwise would require extensive 
corrective action; or
    (b) A position at the next lower grade in the normal line of 
promotion does not exist and the resulting action is not a career ladder 
promotion; or

[[Page 132]]

    (c) There is a shortage of candidates for the position to be filled.
    Inequity to an employee involves situations where a position is 
upgraded without change in the employee's duties or responsibilities, or 
where discrimination or administrative error prevented an employee from 
reaching a higher grade.
    Nontemporary appointment means any appointment other than a 
temporary appointment pending establishment of a register (TAPER) or a 
temporary or excepted appointment not to exceed 1 year or less.



Sec.  300.603  Coverage.

    (a) Coverage. This subpart applies to advancement to a General 
Schedule position in the competitive service by any individual who 
within the previous 52 weeks held a General Schedule position under 
nontemporary appointment in the competitive or excepted service in the 
executive branch, unless excluded by paragraph (b) of this section.
    (b) Exclusions. The following actions may be taken without regard to 
this subpart but must be consistent with all other applicable 
requirements, such as qualification standards:
    (1) Appointment based on selection from a competitive examination 
register of eligibles or under a direct hire authority.
    (2) Noncompetitive appointment based on a special authority in law 
or Executive order (but not including transfer and reinstatement) made 
in accordance with all requirements applicable to new appointments under 
that authority.
    (3) Advancement in accordance with part 335 of this chapter up to 
any General Schedule grade the employee previously held under 
nontemporary appointment in the competitive or excepted service.
    (4) Advancement of an employee from a non-General Schedule position 
to a General Schedule position unless the employee held a General 
Schedule position under nontemporary appointment in the executive branch 
within the previous 52 weeks.
    (5) Advancement of an individual whose General Schedule service 
during the previous 52 weeks has been totally under temporary 
appointment.
    (6) Advancement of an employee under a training agreement 
established in accordance with OPM's operating manuals. However, an 
employee may not receive more than two promotions in any 52-week period 
solely on the basis of one or more training agreements. Also, only OPM 
may approve a training agreement that provides for consecutive 
promotions at rates that exceed those permitted by Sec.  300.604 of this 
part.
    (7) Advancement to avoid hardship to an agency or inequity to an 
employee in an individual meritorious case but only with the prior 
approval of the agency head or his or her designee. However, an employee 
may not be promoted more than three grades during any 52-week period on 
the basis of this paragraph.
    (8) Advancement when OPM authorizes it to avoid hardship to an 
agency or inequity to an employee in individual meritorious situations 
not defined, but consistent with the definitions, in Sec.  300.602 of 
this part.

[56 FR 23002, May 20, 1991, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  300.604  Restrictions.

    The following time-in-grade restrictions must be met unless 
advancement is permitted by Sec.  300.603(b) of this part:
    (a) Advancement to positions at GS-12 and above. Candidates for 
advancement to a position at GS-12 and above must have completed a 
minimum of 52 weeks in positions no more than one grade lower (or 
equivalent) than the position to be filled.
    (b) Advancement to positions at GS-6 through GS-11. Candidates for 
advancement to a position at GS-6 through GS-11 must have completed a 
minimum of 52 weeks in positions:
    (1) No more than two grades lower (or equivalent) when the position 
to be filled is in a line of work properly classified at 2-grade 
intervals; or
    (2) No more than one grade lower (or equivalent) when the position 
to be filled is in a line of work properly classified at 1-grade 
intervals; or
    (3) No more than one or two grades lower (or equivalent), as 
determined by the agency, when the position to be

[[Page 133]]

filled is in a line of work properly classified at 1-grade intervals but 
has a mixed interval promotion pattern.
    (c) Advancement to positions up to GS-5. Candidates may be advanced 
without time restriction to positions up to GS-5 if the position to be 
filled is no more than two grades above the lowest grade the employee 
held within the preceding 52 weeks under his or her latest nontemporary 
competitive appointment.



Sec.  300.605  Creditable service.

    (a) All service at the required or higher grade (or equivalent) in 
positions to which appointed in the Federal civilian service is 
creditable towards the time periods required by Sec.  300.604 of this 
part, except as provided in paragraph (c) of this section. Creditable 
service includes competitive and excepted service in positions under the 
General Schedule and other pay systems, including employment with a 
nonappropriated fund instrumentality. Service while on detail is 
credited at the grade of the employee's position of record, not the 
grade of the position to which detailed. Also creditable is service with 
the District of Columbia Government prior to January 1, 1980 (or prior 
to September 26, 1980, for those District employees who were converted 
to the District personnel system on January 1, 1980).
    (b) Service in positions not subject to the General Schedule (GS) is 
credited at the equivalent GS grade by comparing the candidate's rate of 
basic pay with the representative rate (as defined in Sec.  351.203 of 
this chapter) of the GS position in effect when the non-GS service was 
performed. The equivalent GS grade is the GS grade with a representative 
rate that equals the candidate's rate of basic pay. When the candidate's 
rate of basic pay falls between the representative rates of two GS 
grades, the non-GS service is credited at the higher grade.
    (c) In applying the restrictions in Sec.  300.604 of this part, 
prior service under temporary appointment at a level above that of a 
subsequent nontemporary competitive appointment is credited as if the 
service had been performed at the level of the nontemporary appointment. 
This provision applies until the employee has served in pay status for 
52 weeks under nontemporary competitive appointment; thereafter, the 
service is credited at its actual grade level (or equivalent).



Sec.  300.606  Agency authority.

    An agency may expand on these restrictions consistent with the 
intent of this subpart or may adopt similar policies to control 
promotion rates of employees not covered by this subpart.



 Subpart G_Statutory Bar to Appointment of Persons Who Fail To Register 
                       Under Selective Service Law

    Source: 52 FR 7400, Mar. 11, 1987, unless otherwise noted.



Sec.  300.701  Statutory requirement.

    Section 3328 of title 5 of the United States Code provides that--

    (a) An individual--
    (1) Who was born after December 31, 1959, and is or was required to 
register under section 3 of the Military Selective Service Act (50 
U.S.C. App. 453); and
    (2) Who is not so registered or knowingly and willfully did not so 
register before the requirement terminated or became inapplicable to the 
individual, shall be ineligible for appointment to a position in an 
executive agency of the Federal Government.
    (b) The Office of Personnel Management, in consultation with the 
Director of the Selective Service System, shall prescribe regulations to 
carry out this section. Such regulations shall include provisions 
prescribing procedures for the adjudication within the Office of 
determinations of whether a failure to register was knowing and willful. 
Such procedures shall require that such a determination may not be made 
if the individual concerned shows by a preponderance of the evidence 
that the failure to register was neither knowing nor willful.



Sec.  300.702  Coverage.

    Appointments in the competitive service, the excepted service, the 
Senior Executive Service, or any other civil service personnel 
management system in an executive agency are covered by these 
regulations.



Sec.  300.703  Definitions.

    In this subpart--

[[Page 134]]

    Appointment means any personnel action that brings onto the rolls of 
an executive agency as a civil service officer or employee as defined in 
5 U.S.C. 2104 or 2105, respectively, a person who is not currently 
employed in that agency. It includes initial employment as well as 
transfer between agencies and subsequent employment after a break in 
service. Personnel actions that move an employee within an agency 
without a break in service are not covered. A break in service is a 
period of 4 or more calendar days during which an individual is no 
longer on the rolls of an executive agency.
    Covered individual means a male (a) whose application for 
appointment is under consideration by an executive agency or who is an 
employee of an executive agency; (b) who was born after December 31, 
1959, and is at least 18 years of age or becomes 18 following 
appointment; (c) who is either a United States citizen or an alien 
(including parolees and refugees and those who are lawfully admitted to 
the United States for permanent residence and for asylum) residing in 
the United States; and (d) is or was required to register under section 
3 of the Military Selective Service Act (50 U.S.C. App. 453). 
Nonimmigrant aliens admitted under section 101(a)(15) of the Immigration 
and Nationality Act (8 U.S C. 1101), such as those admitted on visitor 
or student visas, and lawfully remaining in the United States, are 
exempt from registration.
    Executive agency means an agency of the Government of the United 
States as defined in 5 U.S.C. 105.
    Exemptions means those individuals determined by the Selective 
Service System to be excluded from the requirement to register under 
sections 3 and 6(a) of the Military Selective Service Act (50 U.S.C. 
App. 453 and 456(a)) or Presidential proclamation.
    Preponderance of the evidence means that degree of relevant evidence 
that a reasonable person, considering the record as a whole, would 
accept as sufficient to support a conclusion that the matter asserted is 
more likely to be true than not true.
    Registrant means an individual registered under Selective Service 
law.
    Selective Service law means the Military Selective Service Act, 
rules and regulations issued thereunder, and proclamations of the 
President under that Act.
    Selective Service System means the agency responsible for 
administering the registration system and for determining who is 
required to register and who is exempt.



Sec.  300.704  Considering individuals for appointment.

    (a) An executive agency must request a written statement of 
Selective Service registration status from each covered individual at an 
appropriate time during the consideration process prior to appointment, 
and from each covered employee who becomes 18 after appointment. The 
individual must complete, sign, and date in ink the statement on a form 
provided by the agency unless the applicant furnishes other 
documentation as provided by paragraph (c) of this section.
    (b) Statement of Selective Service registration status. Agencies 
should reproduce the following statement, which has been approved by the 
Office of Management and Budget for use through October 31, 1989, under 
OMB Control No. 3206-0166:

     Applicant's Statement of Selective Service Registration Status

    If you are a male born after December 31, 1959, and are at least 18 
years of age, civil service employment law (5 U.S.C. 3328) requires that 
you must be registered with the Selective Service System, unless you 
meet certain exemptions under Selective Service law. If you are required 
to register but knowingly and willfully fail to do so, you are 
ineligible for appointment by executive agencies of the Federal 
Government.

                  Certification of Registration Status

Check one:
[ ] I certify I am registered with the Selective Service System.
[ ] I certify I have been determined by the Selective Service System to 
          be exempt from the registration provisions of Selective 
          Service law.
[ ] I certify I have not registered with the Selective Service System.
[ ] I certify I have not reached my 18th birthday and understand I am 
          required by law to register at that time.

[[Page 135]]

                      Non-Registrants Under Age 26

    If you are under age 26 and have not registered as required, you 
should register promptly at a United States Post Office, or consular 
office if you are outside the United States.

                     Non-Registrants Age 26 or Over

    If you were born in 1960 or later, are 26 years of age or older, and 
were required to register but did not do so, you can no longer register 
under Selective Service law. Accordingly, you are not eligible for 
appointment to an executive agency unless you can prove to the Office of 
Personnel Management (OPM) that your failure to register was neither 
knowing nor willful. You may request an OPM decision through the agency 
that was considering you for employment by returning this statement with 
your written request for an OPM determination together with any 
explanation and documentation you wish to furnish to prove that your 
failure to register was neither knowing nor willful.

                          Privacy Act Statement

    Because information on your registration status is essential for 
determining whether you are in compliance with 5 U.S.C. 3328, failure to 
provide the information requested by this statement will prevent any 
further consideration of your application for appointment. This 
information is subject to verification with the Selective Service System 
and may be furnished to other Federal agencies for law enforcement or 
other authorized use in implementing this law.

                      False Statement Notification

    A false statement may be grounds for not hiring you, or for firing 
you if you have already begun work. Also, you may be punished by fine or 
imprisonment. (Section 1001 of title 18, United States Code.)

________________________________________________________________________
Legal signature of individual (please use ink)

________________________________________________________________________
Date signed (please use ink)

    (c) At his option, a covered individual may submit, in lieu of the 
statement described above, a copy of his Acknowledgment Letter or other 
proof of registration or exemption issued by the Selective Service 
System. The individual must sign and date the document and add a note 
stating it is submitted as proof of Selective Service registration or 
exemption.
    (d) An executive agency will give no further consideration for 
appointment to individuals who fail to provide the information requested 
above on registration status.
    (e) An agency considering employment of a covered individual who is 
a current or former Federal employee is not required to request a 
statement when it determines that the individual's Official Personnel 
Folder contains evidence indicating the individual is registered or 
currently exempt from registration.



Sec.  300.705  Agency action following statement.

    (a) Agencies must resolve conflicts of information and other 
questions concerning an individual's registration status prior to 
appointment. An agency may verify, at its discretion, an individual's 
registration status by requesting the individual to provide proof of 
registration or exemption issued by the Selective Service System and/or 
by contacting the Selective Service System at 888-655-1825.
    (b) An agency may continue regular pre-employment consideration of 
individuals whose statements show they have registered or are exempt.
    (c) An agency will take the following actions when a covered 
individual who is required to register has not done so, and is under age 
26:
    (1) Advise him to register promptly and, if he wishes further 
consideration, to submit a new statement immediately to the agency once 
he has registered. The agency will set a time limit for submitting the 
statement.
    (2) Provide written notice to an individual who still does not 
register after being informed of the above requirements that he is 
ineligible for appointment according to 5 U.S.C. 3328 and will be given 
no further employment consideration.
    (d) An agency will take the following actions when a covered 
individual who is age 26 or over, was required to register, and has not 
done so:
    (1) Provide written notice to the individual that, in accordance 
with 5 U.S.C. 3328, he is ineligible for appointment unless his failure 
to register was neither knowing nor willful, and that OPM will decide 
whether his failure to register was knowing and willful if he

[[Page 136]]

submits a written request for such decision and an explanation of his 
failure to register.
    (2) Submit the individual's application, the statement described in 
Sec.  300.704(b), a copy of the written notice, his request for a 
decision and explanation of his failure to register, and any other 
papers pertinent to his registration status for determination to--
Registration Review, Staffing Operations Division, Career Entry Group, 
room 6A12, U.S. Office of Personnel Management, 1900 E Street, NW., 
Washington, DC 20415.
    (3) An agency is not required to keep a vacancy open for an 
individual who seeks an OPM determination.
    (e) Individuals described in paragraph (c) of this section who do 
not submit a statement of registration or exemption are not eligible for 
employment consideration. Individuals described in paragraph (d) of this 
section are not eligible for employment consideration unless OPM finds 
that failure to register was neither knowing nor willful. Agencies are 
not required to follow the objections-to-eligibles procedures described 
in Sec.  332.406 concerning such individuals who were certified or 
otherwise referred by an OPM examining office or other office delegated 
examining authority by OPM. Instead, an agency will provide, for 
information as part of its certification report to that office, a copy 
of its written notice to the individual.

[52 FR 7400, Mar. 11, 1987, as amended at 64 FR 28713, May 27, 1999]



Sec.  300.706  Office of Personnel Management adjudication.

    (a) OPM will determine whether failure to register was knowing and 
willful when an individual has requested a decision and presented a 
written explanation, as described in Sec.  300.705. The Associate 
Director for Career Entry or his or her designee will make the 
determination based on the written explanation provided by the 
individual. The burden of proof will be on the individual to show by a 
preponderance of the evidence that failure to register was neither 
knowing nor willful.
    (b) OPM may consult with the Selective Service System in making 
determinations.
    (c) The Associate Director for Career Entry or his or her designee 
will notify the individual and the agency in writing of the 
determination. The determination is final unless reconsidered at the 
discretion of the Associate Director. There is no further right to 
administrative review.
    (d) The Director of OPM may reopen and reconsider a determination.
    (e) The Director of OPM may, at his or her discretion, delegate to 
an executive agency the authority to make initial determinations. 
However, OPM may review any initial determination and make a final 
adjudication in any case. If a delegation is made under this paragraph, 
the notice in Sec.  300.705(d)(1) will state that the individual may 
submit a written request that OPM review the agency's initial 
determination. The agency will forward to OPM copies of all documents 
relating to the individual's failure to register, including the 
individual's request for review and his explanation of his failure to 
register.



Sec.  300.707  Termination of employment.

    A covered individual who is serving under an appointment made on or 
after November 8, 1985, and is not exempt from registration, will be 
terminated by his agency under the authority of the statute and these 
regulations if he has not registered as required, unless he registers or 
unless, if no longer eligible to register, OPM determines in response to 
his explanation that his failure to register was neither knowing nor 
willful.



PART 301_OVERSEAS EMPLOYMENT--Table of Contents




Subpart A [Reserved]

                 Subpart B_Overseas Limited Appointment

Sec.
301.201 Appointments of United States citizens recruited overseas.
301.202 Appointment of citizens recruited outside overseas areas.
301.203 Duration of appointment.
301.204 Status and trial period.
301.205 Requirements and restrictions.

[[Page 137]]

301.206 Within-grade increases.

  Subpart C_Overseas Employees Eligible for Noncompetitive Appointment 
                    Upon Return to the United States

301.301 Eligibility under the authority of Executive Order 12362.
301.302 Overseas appointing procedures.
301.303 Performance appraisal.

    Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., 
p. 218, as amended by E.O. 10641, 3 CFR, 1954-1958 Comp., p. 274, unless 
otherwise noted.

    Source: 44 FR 54691, Sept. 21, 1979, unless otherwise noted.

Subpart A [Reserved]



                 Subpart B_Overseas Limited Appointment



Sec.  301.201  Appointments of United States citizens recruited overseas.

    When there is a shortage of eligible applicants, as defined at Sec.  
337.202 of this chapter, resulting from a competitive announcement that 
is open to applicants in the local overseas area, an agency may give an 
overseas limited appointment to a United States citizen recruited 
overseas for a position overseas.

[69 FR 33275, June 23, 2004]



Sec.  301.202  Appointment of citizens recruited outside overseas areas.

    When an agency determines that unusual or emergency conditions make 
it infeasible to appoint from a register, it may give an overseas 
limited appointment to a United States citizen recruited in an area 
where an overseas limited appointment is not authorized.



Sec.  301.203  Duration of appointment.

    (a) An appointment under this subpart is of indefinite duration 
unless otherwise limited.
    (b) An agency may make an overseas limited term appointment for a 
period not in excess of 5 years when a time limitation is imposed as a 
part of a general program for rotating career and career-conditional 
employees between overseas areas and the United States after specified 
periods of overseas service.
    (c) An agency may make an overseas limited appointment for 1 year or 
less to meet administrative needs for temporary employment. An agency 
may extend such an appointment for up to a maximum of 1 additional year.
    (d) Upon request from the headquarters level of a Department or 
agency, OPM may approve, or delegate to agencies the authority to 
approve, exceptions to the time limits set out in paragraph (c) of this 
section.

[44 FR 54691, Sept. 21, 1979, as amended at 60 FR 3057, Jan. 13, 1995]



Sec.  301.204  Status and trial period.

    (a) An overseas limited employee does not acquire a competitive 
status on the basis of his or her overseas limited appointment. He or 
she is required to serve a trial period of 1 year when given an overseas 
limited appointment of indefinite duration or an overseas limited term 
appointment.
    (b) The agency may terminate an overseas limited employee at any 
time during the trial period. The employee is entitled to the procedures 
set forth in Sec.  315.804 or Sec.  315.805 of this chapter as 
appropriate.



Sec.  301.205  Requirements and restrictions.

    The requirements and restrictions in subpart F of part 300 of this 
chapter apply to appointments under this subpart.

[69 FR 33275, June 15, 2004]



Sec.  301.206  Within-grade increases.

    An employee serving under an overseas limited appointment of 
indefinite duration or an overseas limited term appointment in a 
position subject to the General Schedule, is eligible for within-grade 
increases in accordance with subpart D of part 531 of this chapter.

(5 U.S.C. 3301, 3302, E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218, as 
amended by E.O. 10641, 3 CFR, 1954-1958 Comp., p. 274)

[[Page 138]]



  Subpart C_Overseas Employees Eligible for Noncompetitive Appointment 
                    Upon Return to the United States

    Authority: E.O. 12362, 47 FR 21231, 3 CFR, 1982 Comp., p. 182.

    Source: 48 FR 52868, Nov. 23, 1983, unless otherwise noted. 
Correctly designated at 49 FR 5601, Feb. 14, 1984.



Sec.  301.301  Eligibility under the authority of Executive Order 12362.

    Employees who serve under overseas local hire appointments as 
defined in Sec.  315.608(b) of this chapter and meet the eligibility 
criteria of Sec.  315.608(a) of this chapter are eligible for 
noncompetitive career-conditional, term, or temporary limited 
appointment when they return to the United States.



Sec.  301.302  Overseas appointing procedures.

    Overseas agencies are required to insure that selection of employees 
for local hire appointments in the overseas area is made on the basis of 
the ability, knowledge, and skills of eligible candidates, in accordance 
with applicable law and regulation.



Sec.  301.303  Performance appraisal.

    As soon as practicable, but beginning not later than January 1, 
1984, overseas agencies are required to evaluate the performance of 
employees who serve under overseas local hire appointments as defined in 
Sec.  315.608(b) of this chapter and who are eligible to meet the 
criteria established in Sec.  315.608(a), of this chapter in accordance 
with the agency's performance appraisal plan established under chapter 
43 of title 5, U.S. Code, unless the agency is exempt from the 
provisions of that chapter.



PART 302_EMPLOYMENT IN THE EXCEPTED SERVICE--Table of Contents




                      Subpart A_General Provisions

Sec.
302.101 Positions covered by regulations.
302.102 Method of filling positions and status of incumbents.
302.103 Definitions.
302.104 Applicability of regulations to applicants and employees.
302.105 Special agency plans.
302.106 Vacancy announcements.

                     Subpart B_Eligibility Standards

302.201 Persons entitled to veteran preference.
302.202 Qualification requirements.
302.203 Disqualifying factors.

         Subpart C_Accepting, Rating and Arranging Applications

302.301 Receipt of applications.
302.302 Examination of applicants.
302.303 Maintenance of employment lists.
302.304 Order of consideration.

 Subpart D_Selection and Appointment; Reappointment; and Qualifications 
                              for Promotion

302.401 Selection and appointment.
302.402 Reappointment.
302.403 Qualifications for promotion.

                            Subpart E_Appeals

302.501 Entitlement.

    Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR 1954-
1958 Comp., p. 218); Sec.  302.105 also issued under 5 U.S.C. 1104, Pub. 
L. 95-454, sec. 3(5); Sec.  302.501 also issued under 5 U.S.C. 7701 et 
seq.

    Source: 55 FR 9407, Mar. 14, 1990, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  302.101  Positions covered by regulations.

    (a) Positions covered. With respect to the application of veteran 
preference, this part applies to each position in the Executive Branch 
of the Federal Government that is not in the competitive service and 
that is subject to the provisions of title 5, United States Code, or 
subject to a statutory requirement to follow the veteran preference 
provisions of title 5. With respect to restoration rights that are due 
to compensable injury and appeals therefrom, this part applies to those 
positions covered by 5 U.S.C. 8101(1) that are not in the competitive 
service.
    (b) Positions not covered. This part does not apply to a position or 
appointment that is required by the Congress to be confirmed by, or made 
with the advice and consent of, the Senate.

[[Page 139]]

    (c) Positions exempt from appointment procedures. In view of the 
circumstances and conditions surrounding employment in the following 
classes of positions, an agency is not required to apply the appointment 
procedures of this part to them, but each agency shall follow the 
principle of veteran preference as far as administratively feasible and, 
on the request of a qualified and available preference eligible, shall 
furnish him/her with the reasons for his/her nonselection. Also, the 
exemption from the appointment procedures of this part does not relieve 
agencies of their obligation to accord persons entitled to priority 
consideration (see Sec.  302.103) their rights under 5 U.S.C. 8151:
    (1) Positions filled by persons appointed without pay or at pay of 
$1 a year;
    (2) Positions outside the continental United States and outside the 
State of Hawaii and the Commonwealth of Puerto Rico when filled by 
persons resident in the locality, and positions in the State of Hawaii 
and the Commonwealth of Puerto Rico when paid in accordance with 
prevailing wage rates;
    (3) Positions which the exigencies of the national defense program 
demand be filled immediately before lists of qualified applicants can be 
established or used, but appointments to these positions shall be 
temporary appointments not to exceed 1 year which may be renewed for 1 
additional year at the discretion of the agency;
    (4) Positions filled by appointees serving on an irregular or 
occasional basis whose hours or days of work are not based on a 
prearranged schedule and who are paid only for the time when actually 
employed or for services actually performed;
    (5) Positions paid on a fee basis;
    (6) Positions included in Schedule A (see subpart C of part 213 of 
this chapter) and similar types of positions when OPM agrees with the 
agency that the positions should be included hereunder;
    (7) Positions included in Schedule C (see subpart C of part 213 of 
this chapter) and positions excepted by statute which are of a 
confidential, policy-making, or policy-advocating nature;
    (8) Student Trainee positions when filled under Schedule B (see 
subpart C of part 213 of this chapter);
    (9) Attorney positions; and
    (10) Positions filled by reemployment of an individual in the same 
agency and commuting area, at the same or lower grade, and under the 
same appointing authority as the position last held; Provided That, 
there are no candidates eligible for the position on the agency's 
priority reemployment list established in accordance with Sec.  302.303.
    (11) Positions for which a critical hiring need exists when filled 
under Sec.  213.3102(i)(2) of this chapter.

[55 FR 9407, Mar. 14, 1990, as amended at 58 FR 58260, Nov. 1, 1993; 60 
FR 10006, Feb. 23, 1995]



Sec.  302.102  Method of filling positions and status of incumbent.

    (a) To the extent permitted by statute and this chapter, each 
appointment, position change, and removal in the excepted service shall 
be made in accordance with any regulations or practices that the head of 
the agency concerned finds necessary.
    (b) Except as authorized under paragraph (c) of this section, a 
person appointed to an excepted position does not acquire a competitive 
status by reason of the appointment. When an employee serving under a 
nontemporary appointment in the competitive service is selected for an 
excepted appointment, the agency must--
    (1) Inform the employee that, because the position is in the 
excepted service, it may not be filled by a competitive appointment, and 
that acceptance of the proposed appointment will take him/her out of the 
competitive service while he/she occupies the position; and
    (2) Obtain from the employee a written statement that he/she 
understands he/she is leaving the competitive service voluntarily to 
accept an appointment in the excepted service.
    (c) Upon a finding by OPM that in a particular situation the action 
will be in the interest of good administration, OPM may authorize an 
agency to make appointments to specified positions in the excepted 
service in the same manner as to positions in the competitive service. 
Persons given career-conditional or career appointments pursuant

[[Page 140]]

to a specific authorization by OPM under this paragraph may acquire a 
competitive status as provided in part 315 of this chapter.

[55 FR 9407, Mar. 14, 1990, as amended at 58 FR 58261, Nov. 1, 1993]



Sec.  302.103  Definitions.

    Person entitled to priority consideration means a person who was 
furloughed or separated without misconduct, from a position without time 
limit, because of a compensable injury and whose recovery takes longer 
than 1 year from the date compensation began. To be eligible under this 
part the person must apply for reappointment to his or her former agency 
within 30 days of the date of cessation of compensation.



Sec.  302.104  Applicability of regulations to applicants and employees.

    Each agency shall follow the provisions of this part relating to 
examination, rating, and selection for appointment of an applicant when 
a qualified preference eligible or person entitled to priority 
consideration applies for appointment to a position covered by this 
part. Each agency, in its discretion, may follow these provisions when 
no preference eligible or person entitled to priority consideration 
applies.



Sec.  302.105  Special agency plans.

    An agency having a position subject to this part may establish a 
system which will result in granting to eligible persons the preference 
or priority consideration referred to in sections 1302(c) or 8151 of 
title 5, United States Code, but which does not conform to all the 
procedural requirements set forth in this part. The agency establishing 
such a system must ensure that all eligible applicants entitled to 
veteran preference or priority consideration receive at least as much 
advantage in referral as they would receive under the procedures set 
forth in this part.



Sec.  302.106  Vacancy announcements.

    When an agency announces a vacancy in the excepted service, the 
announcement must contain a reasonable accommodation statement that 
complies with requirements in Sec.  330.707 of subpart G of this 
chapter.

[66 FR 63906, Dec. 11, 2001]



                     Subpart B_Eligibility Standards



Sec.  302.201  Persons entitled to veteran preference.

    In actions subject to this part, each agency shall grant veteran 
preference as follows:
    (a) When numerical scores are used in the evaluation and referral, 
the agency shall grant 5 additional points to preference eligibles under 
section 2108(3) (A) and (B) of title 5, United States Code, and 10 
additional points to preference eligibles under section 2108(3) (C) 
through (G) of that title.
    (b) When eligible candidates are referred without ranking, the 
agency shall note preference as ``CP'' for preference eligibles under 5 
U.S.C. 2108(3)(C), as ``XP'' for preference eligibles under 5 U.S.C. 
2108(3) (D) through (G), and as ``TP'' for all other preference 
eligibles under that title.



Sec.  302.202  Qualification requirements.

    Before making an appointment to a position covered by this part, 
each agency shall establish qualification standards such as those 
relating to experience and training, citizenship, minimum age, physical 
condition, etc., which shall relate to the duties to be performed. An 
agency may delegate the establishment of standards relating to a group 
of positions or a specific position to the appropriate administrative 
level or subdivision in accordance with the needs of the locality in 
which the position is located, but the agency shall determine that each 
standard established is in conformity with this part. Each agency shall 
make its standards a matter of record in the appropriate office of the 
agency, and shall furnish information concerning the standards for a 
position to an applicant on his/her request. Each agency shall apply the 
standards for a position uniformly to all applicants, except for such 
waivers as are provided in this part for a preference eligible. An 
agency shall not include a minimum educational requirement in 
qualification

[[Page 141]]

standards, except for a scientific, technical, or professional position 
the duties of which the agency decides cannot be performed by a person 
who does not have a prescribed minimum education. An agency shall not 
establish a maximum age requirement for any position. Each agency shall 
make a part of its records the reasons for its decision under this 
section and shall furnish those reasons to an applicant on his/her 
request. The qualification standards shall include:
    (a) A provision for waiver by the agency of requirements as to age, 
height, and weight for each preference eligible when the requirements 
are not essential to the performance of the duties of the position; and
    (b) A provision for waiver by the agency of physical requirements 
for each preference eligible when the agency, after giving due 
consideration to the recommendation of an accredited physician, finds 
that the applicant is physically able to discharge the duties of the 
position.



Sec.  302.203  Disqualifying factors.

    (a) The qualification standards established by an agency or by an 
administrative level or subdivision of an agency may provide that 
certain reasons disqualify an applicant for appointment. The following, 
among others, may be included as disqualifying reasons:
    (1) Dismissal from employment for delinquency or misconduct;
    (2) Criminal, infamous, dishonest, immoral, or notoriously 
disgraceful conduct;
    (3) Intentional false statement or deception or fraud in examination 
or appointment;
    (4) Habitual use of intoxicating beverages to excess;
    (5) Reasonable doubt as to the loyalty of the person involved to the 
Government of the United States;
    (6) Any legal or other disqualification which makes the individual 
unfit for service; or
    (7) Lack of United States citizenship.
    (b) An agency may not disqualify an applicant solely because of his/
her retired status.



         Subpart C_Accepting, Rating, and Arranging Applications



Sec.  302.301  Receipt of applications.

    (a) Each agency shall establish definite rules regarding the 
acceptance of applications for employment in positions covered by this 
part and shall make these rules a matter of record.
    (b) Each agency shall apply its rules uniformly to all applicants 
who meet the conditions of the rules and shall furnish information 
concerning the rules to an applicant on his/her request.



Sec.  302.302  Examination of applicants.

    (a) Eligibility. An evaluation of the qualifications of applicants 
for positions covered by this part may be conducted at any time before 
an appointment is made. The evaluation may involve only determination of 
eligibility or ineligibility or may include qualitative rating of 
candidates. If the evaluation involves only basic eligibility numerical 
scores will not be assigned and eligible candidates will be referred in 
accordance with the procedures described in paragraph (b)(5) of Sec.  
302.304. If qualitative ranking is desired, numerical scores may be 
assigned in accordance with paragraph (b) of this section. Each agency 
shall make a part of the records the reasons for its decision to use 
ranked or unranked referral and, for ranked actions, the quality ranking 
factors used. This information shall be made available to an applicant 
on his/her request.
    (b) Rating. Numerical scores will be assigned on a scale of 100. 
Each applicant who meets the qualification requirements for the position 
established under Sec.  302.202 will be assigned a rating of 70 or more 
and will be eligible for appointment. Candidates scoring 70 or more will 
receive additional points for veteran preference as provided in Sec.  
302.201. Numerical ratings are not required when all qualified 
applicants will be offered immediate appointment. When there is an 
excessive number of applicants, numerical ratings are required only for 
a sufficient number of the highest qualified applicants to meet the 
anticipated needs of the agency within a reasonable period of time.

[[Page 142]]

The agency must, however, adopt procedures to insure the consideration 
of preference eligibles in the order in which they would have been 
considered if all applicants had been assigned numerical ratings. An 
agency shall furnish a notice of the rating assigned to an applicant on 
his/her request.
    (c) Nonpreference applicants for certain positions. An agency may 
not consider or rate an application for the position of elevator 
operator, messenger, guard, or custodian submitted by a nonpreference 
eligible as long as at least three qualified preference eligibles are 
available for the position.
    (d) Evaluating experience. When experience is a factor in 
determining eligibility, an agency shall credit a preference eligible 
(1) with time spent in the military service of the United States if the 
position for which he/she is applying is similar to the position which 
he/she held immediately before his/her entrance into the military 
service; and (2) with all valuable experience, including experience 
gained in religious, civic, welfare, service, and organizational 
activities, regardless of whether pay was received therefor.



Sec.  302.303  Maintenance of employment lists.

    (a) Establishment--(1) Agency's obligation. An agency must establish 
a priority reemployment list whenever any applicants rated eligible 
under Sec.  302.302 meet the conditions set out in paragraphs (b)(1) 
through (b)(3) of this section and must consider candidates from that 
list in accordance with Sec.  302.304(a). All applicants not included on 
the priority reemployment list will be listed on the regular employment 
list unless the agency elects to establish a reemployment list as 
provided in paragraph (c) of this section.
    (2) Agency discretion. In establishing its lists, an agency may, but 
is not required to: Afford priority consideration to non-preference 
eligibles who meet the conditions set out in paragraph (b)(4) of this 
section; afford priority consideration under paragraph (b) of this 
section for a longer time and/or in a broader geographic area than the 
minimum requirement; and/or provide reemployment consideration after the 
priority list is exhausted to additional current and former employees in 
accordance with paragraph (c) of this section. An agency may limit 
consideration granted at its discretion to applicants for specific 
positions or applicants who meet specific conditions, but must make 
those conditions a matter of record and must apply its policy uniformly 
to all eligible employees. Generally, full-time employees may be 
considered only for full-time positions and other-than-full-time 
employees only for other-than-full-time positions. However, full-time 
employees may be considered for other-than-full-time positions if there 
are no other-than-full-time employees on the appropriate priority or 
reemployment list; and other-than-full time employees may be considered 
for full-time positions if there are no full-time employees on the 
appropriate list.
    (b) Priority reemployment list. Candidates are entered on the 
priority reemployment list in the geographic areas specified in 
paragraph (b)(1) of this section and remain on the list for 2 years 
unless the agency elects to provide a longer period of eligibility. The 
priority reemployment list includes:
    (1) The name of each former employee of the agency who is a 
preference eligible, has been furloughed or separated from a continuing 
appointment without delinquency or misconduct, and applies for 
reemployment. Candidates in this category are considered for positions 
in the commuting area where they were separated unless the agency elects 
to provide broader consideration.
    (2) The name of each former employee of the agency who is a 
preference eligible and who, as the result of an appeal under part 752 
of this chapter, is found by the Merit Systems Protection Board to have 
been unjustifiably dismissed from the agency, but who is not entitled to 
immediate restoration under the Board's decision. Candidates in this 
category are considered in the commuting area from which separated 
unless the Board's decision specifies a broader or different area or the 
agency elects to afford broader geographic consideration.

[[Page 143]]

    (3) The name of each former employee of the agency who has been 
furloughed or separated due to compensable injury sustained under the 
provisions of 5 U.S.C. chapter 81, subchapter I, who is not entitled to 
immediate restoration, and who is eligible for priority consideration 
under this part. Candidates in this category are considered in the 
commuting area where they last served and, if the agency determines that 
an appropriate vacancy is unlikely to occur in that area during the 
candidates' period of reemployment priority, in other locations for 
which they are available.
    (4) At the agency's discretion, the name of each former employee of 
the agency who is not a preference eligible, has been furloughed or 
involuntarily separated from a continuing appointment without 
delinquency or misconduct, and applies for reemployment. Candidates in 
this category are considered in the geographic area specified by the 
agency.
    (c) Reemployment list. A reemployment list may be established at the 
agency's discretion to include the names of current employees of the 
agency and of former employees of the agency who are to be considered 
for future employment and who are not eligible for inclusion on the 
priority reemployment list. Employees may be entered on the reemployment 
list only for positions in which tenure and/or work schedule is no 
greater than that of the position previously held.
    (d) Order of entry. An agency shall enter the names of all 
applicants rated eligible under Sec.  302.302 on the appropriate list 
(priority reemployment, reemployment, or regular employment) in the 
following order:
    (1) When candidates have been rated only for basic eligibility under 
Sec.  302.302(a). (i) Preference eligibles having a compensable, 
service-connected disability of 10 percent or more (designated as 
``CP'') unless the list will be used to fill professional positions at 
the GS-9 level or above, or equivalent;
    (ii) All other candidates eligible for 10-point veteran preference;
    (iii) All candidates eligible for 5-point veteran preference; and
    (iv) Qualified candidates not eligible for veteran preference.
    (2) When qualified candidates have been assigned numerical scores 
under Sec.  302.302(b). (i) Preference eligibles having a compensable, 
service-connected disability of 10 percent or more, in the order of 
their augmented ratings, unless the list will be used to fill 
professional positions at the GS-9 level or above, or equivalent;
    (ii) All other qualified candidates in the order of their augmented 
ratings. At each score, qualified candidates eligible for 10-point 
preference will be entered ahead of those eligible for 5-point 
preference or those not eligible for veteran preference, and those 
eligible for 5-point preference will be entered ahead of those not 
eligible for preference.



Sec.  302.304  Order of consideration.

    (a) Consideration of priority reemployment candidates. An agency 
must consider all qualified candidates on its priority reemployment list 
before it may refer candidates from its reemployment list, if any, or 
regular employment list. When a qualified candidate is available on the 
priority list, the agency may appoint an individual who is not on the 
priority list or who has lower standing than others on that list only 
when necessary to obtain an employee for duties that cannot be taken 
over without undue interruption to the agency by an individual who is 
entitled to reemployment priority or has higher standing on the priority 
reemployment list than the one appointed. The agency must notify each 
individual on the priority reemployment list who is adversely affected 
by an appointment under this paragraph of the reasons for the exception 
and must further notify each such individual who is a preference 
eligible of his or her right of appeal to the Merit Systems Protection 
Board.
    (b) Consideration of other candidates. Except as provided in 
paragraphs (b)(4) and (b)(5) of this section, an agency shall consider 
applicants on the reemployment and/or regular employment list who have 
been assigned eligible ratings for a given position in Order A, Order B, 
or Order C, as described in paragraphs (b)(1) through (b)(3) of this 
section. Order A must be used when the

[[Page 144]]

agency has not established a reemployment list.
    (1) Order A. (i) The name of each qualified preference eligible who 
has a compensable, service-connected disability of 10 percent or more 
and is entitled to 10-point preference under section 3309 of title 5, 
United States Code, in the order of his/her numerical ranking.
    (ii) The name of each other qualified applicant in the order of his/
her numerical ranking.
    (2) Order B. (i) The name of each qualified preference eligible who 
has a compensable, service-connected disability of 10 percent or more 
and is entitled to 10-point preference under section 3309 of title 5, 
United States Code, and whose name appears on the agency's reemployment 
list, in the order of his/her numerical ranking.
    (ii) The name of each qualified preference eligible who has a 
compensable, service-connected disability of 10 percent or more and is 
entitled to 10-point preference under section 3309 of title 5, United 
States Code, and whose name appears on the agency's regular employment 
list, in the order of his/her numerical ranking.
    (iii) The name of each other qualified applicant on the agency's 
reemployment list, in the order of his/her numerical ranking.
    (iv) The name of each other qualified applicant on the agency's 
regular employment list, in the order of his/her numerical ranking.
    (3) Order C. (i) The name of each qualified preference eligible who 
has a compensable, service-connected disability of 10 percent or more 
and is entitled to 10-point preference under section 3309 of title 5, 
United States Code, and whose name appears on the agency's reemployment 
list, in the order of his/her numerical ranking.
    (ii) The name of each other qualified applicant on the agency's 
reemployment list, in the order of his/her numerical ranking.
    (iii) The name of each qualified preference eligible who has a 
compensable, service-connected disability of 10 percent or more and is 
entitled to 10-point preference under section 3309 of title 5, United 
States Code, and whose name appears on the agency's regular employment 
list, in the order of his/her numerical ranking.
    (iv) The name of each other qualified applicant on the agency's 
regular employment list, in the order of his/her numerical ranking.
    (4) Professional order. An agency shall consider applicants who have 
been assigned eligible ratings for professional and scientific positions 
at the GS-9 level and above, or equivalent, in the following order:
    (i) Applicants on the agency's reemployment list, if any. If 
numerical scores have been assigned, the applicants will be considered 
in the order of their augmented scores. If numerical scores have not 
been assigned, all preference eligibles will be considered together 
regardless of the type of preference, followed by all other priority 
reemployment candidates.
    (ii) Applicants on the agency's regular employment list. If 
numerical scores have been assigned, the applicants will be considered 
in the order of their augmented scores. If numerical scores have not 
been assigned, all preference eligibles will be considered together 
regardless of the type of preference, followed by all other candidates.
    (5) Unranked order. When numerical scores are not assigned, the 
agency may consider applicants who have received eligible ratings for 
positions not covered by paragraph (b)(4) of this section in either of 
the following orders:
    (i) By preference status. Under this method, preference eligibles 
having a compensable service-connected disability of 10 percent or more 
are considered first, followed, second, by other 10-point preference 
eligibles, third, by 5-point preference eligibles, and, last, by 
nonpreference eligibles. Within each category, applicants from the 
reemployment list will be placed ahead of applicants from the regular 
employment list.
    (ii) By reemployment/regular list status. Under this method, all 
applicants on the reemployment list are considered before applicants on 
the regular employment list. On each list, preference eligibles having a 
compensable service-connected disability of 10 percent or more are 
considered first, followed, second, by other 10-point preference 
eligibles, third, by 5-point preference

[[Page 145]]

eligibles, and, last, by nonpreference eligibles.



 Subpart D_Selection and Appointment; Reappointment; and Qualifications 
                              for Promotion



Sec.  302.401  Selection and appointment.

    (a) Selection. When making an appointment from a priority 
reemployment, reemployment, or regular list on which candidates have not 
received numerical scores, an agency must make its selection from the 
highest available preference category, as long as at least three 
candidates remain in that group. When fewer than three candidates remain 
in the highest category, consideration may be expanded to include the 
next category. When making an appointment from a list on which 
candidates have received numerical scores, the agency must make its 
selection for each vacancy from not more than the highest three names 
available for appointment in the order provided in Sec.  302.304. Under 
either method, an agency is not required to--
    (1) Accord an applicant on its priority reemployment or reemployment 
list the preference consideration required by Sec.  302.304 if the list 
on which the applicant's name appears does not contain the names of at 
least three preference eligibles; or
    (2) Consider an applicant who has previously been considered three 
times or a preference eligible if consideration of his/her name has been 
discontinued for the position as provided in paragraph (b) of this 
section.
    (b) Passing over a preference applicant. When an agency, in making 
an appointment as provided in paragraph (a) of this section, passes over 
the name of a preference eligible who is entitled to priority 
consideration under Sec.  302.304 and selects a nonpreference eligible, 
it shall record its reasons for so doing, and shall furnish a copy of 
those reasons to the preference eligible or his/her representative on 
request. An agency may discontinue consideration of the name of a 
preference eligible for a position if on three occasions the agency has 
considered him/her for the position and has passed over his/her name and 
recorded its reasons for so doing.



Sec.  302.402  Reappointment.

    An agency may reappoint a current or former nontemporary employee of 
the executive branch of the Federal Government who is a preference 
eligible to a position covered by this part without regard to the names 
of qualified applicants on the agency's priority reemployment, 
reemployment, or regular employment list.



Sec.  302.403  Qualifications for promotion.

    In determining qualifications for promotion with respect to an 
employee who is a preference eligible, an agency shall waive:
    (a) Requirements as to age, height, and weight unless the 
requirement is essential to the performance of the duties of the 
position; and
    (b) Physical requirements if, in the opinion of the agency, after 
considering the recommendation of an accredited physician, the 
preference eligible is physically able to perform efficiently the duties 
of the position for which the promotion is proposed.



                            Subpart E_Appeals



Sec.  302.501  Entitlement.

    An individual who is covered by 5 U.S.C. 8101(1) and is entitled to 
priority consideration under this part (see Sec.  302.103) may appeal a 
violation of his/her restoration rights to the Merit Systems Protection 
Board under the provisions of the Board's regulations by presenting 
factual information that he or she was denied restoration rights because 
of the employment of another person.



PART 304_EXPERT AND CONSULTANT APPOINTMENTS--Table of Contents




Sec.
304.101 Coverage.
304.102 Definitions.
304.103 Authority.
304.104 Determining rate of pay.
304.105 Daily and biweekly basic pay limitations.
304.106 Pay and leave administration.
304.107 Reports.
304.108 Compliance.

    Authority: 5 U.S.C. 3109.

    Source: 60 FR 45648, Sept. 1, 1995, unless otherwise noted.

[[Page 146]]



Sec.  304.101  Coverage.

    These regulations apply to the appointment of experts and 
consultants as Federal employees under 5 U.S.C. 3109. They do not apply 
to the appointments of experts and consultants under other employment 
authorities or to the procurement of services by contracts under the 
procurement laws.



Sec.  304.102  Definitions.

    For purposes of this part:
    (a) An agency is an executive department, a military department, or 
an independent agency.
    (b) A consultant is a person who can provide valuable and pertinent 
advice generally drawn from a high degree of broad administrative, 
professional, or technical knowledge or experience. When an agency 
requires public advisory participation, a consultant also may be a 
person who is affected by a particular program and can provide useful 
views from personal experience.
    (c) A consultant position is one that requires providing advice, 
views, opinions, alternatives, or recommendations on a temporary and/or 
intermittent basis on issues, problems, or questions presented by a 
Federal official.
    (d) An expert is a person who is specially qualified by education 
and experience to perform difficult and challenging tasks in a 
particular field beyond the usual range of achievement of competent 
persons in that field. An expert is regarded by other persons in the 
field as an authority or practitioner of unusual competence and skill in 
a professional, scientific, technical or other activity.
    (e) An expert position is one that requires the services of a 
specialist with skills superior to those of others in the same 
profession, occupation, or activity to perform work on a temporary and/
or intermittent basis assigned by a Federal official. For example, a 
microbial contamination specialist may apply new test methods to 
identify bacteria on products, a computer scientist may adapt advanced 
methods to develop a complex software system, or a plate maker may 
engrave a novel design.
    (f) Intemittent employment, as defined in part 340, subpart D, of 
this chapter, means employment without a regularly scheduled tour of 
duty.
    (g) Temporary employment means employment not to exceed 1 year. An 
expert or consultant serving under a temporary appointment may have a 
full-time, part-time, seasonal, or intermittent work schedule.
    (h) Employment without compensation means unpaid service that is 
provided at the agency's request and is to perform duties that are 
unclassified. It is not volunteer service.



Sec.  304.103  Authority.

    (a) Basic authority. (1) When authorized by an appropriation or 
other statute to use 5 U.S.C. 3109, an agency may appoint a qualified 
expert or consultant to an expert or consultant position that requires 
only intermittent and/or temporary employment. Such an appointment is 
excepted from competitive examination, position classification, and the 
General Schedule pay rates.
    (2) An expert or consultant who works on a strictly intermittent 
basis may be appointed under this authority without time limit or for 
any period determined by the agency. All other experts and consultants 
must receive temporary appointments. Temporary experts and consultants 
may be reappointed in the same agency only as provided in paragraph (c) 
of this section.
    (b) Inappropriate use. An agency must not use 5 U.S.C. 3109 to 
appoint an expert or consultant:
    (1) To a position requiring Presidential appointment. However, 
subject to the conditions of this part, an agency may appoint an 
individual awaiting final action on a Presidential appointment to an 
expert or consultant position.
    (2) To a Senior Executive Service position (including an FBI or DEA 
Senior Executive Service position).
    (3) To perform managerial or supervisory work (although an expert 
may act as team leader or director of the specific project for which he/
she is hired), to make final decisions on substantive policies, or to 
otherwise function in the agency chain of command (e.g., to approve 
financial transactions, personnel actions, etc.).

[[Page 147]]

    (4) To do work performed by the agency's regular employees.
    (5) To fill in during staff shortages.
    (6) Solely in anticipation of giving that individual a career 
appointment. However, subject to the conditions of this part, an agency 
may appoint an individual to an expert or consultant position pending 
Schedule C appointment or noncareer appointment in the Senior Executive 
Service.
    (c) Reappointment. An agency may reemploy an expert or consultant to 
perform demonstrably different duties without regard to the length of 
that individual's previous expert or consultant service with the agency. 
Reappointment to perform substantially the same duties is subject to the 
following limits:
    (1) An agency may employ an expert or consultant who works on a 
full-time basis for a maximum of 2 years--i.e., on an initial 
appointment not to exceed 1 year and a reappointment not to exceed 1 
additional year.
    (2) An agency may reappoint an expert or consultant who works on a 
part-time or intermittent schedule in accordance with one of the 
following options. The agency must determine which option it will use in 
advance of any reappointment and must base its determination on 
objective criteria (e.g., nature of duties, pay level, whether or not 
work is regularly scheduled). Option 1 must be applied to reappointments 
of experts and consultants appointed without compensation.
    (i) Option 1--Annual service. An agency may reappoint an expert or 
consultant, with no limit on the number of reappointments, as long as 
the individual is paid for no more than 6 months (130 days or 1,040 
hours) of work, or works for no more than that amount of time without 
compensation, in a service year. (The service year is the calendar year 
that begins on the date of the individual's initial appointment in the 
agency.) An expert or consultant who exceeds this limit in his/her first 
service year may be reappointed for 1 additional year. An expert or 
consultant who exceeds the limit during any subsequent service year may 
not be reappointed thereafter.
    (ii) Option 2--Cumulative earnings. Each expert or consultant will 
have a lifetime limit of twice the maximum annual rate payable under the 
annualized basic pay limitations of section 304.105. The agency may 
adjust this limit to reflect statutory increases in basic pay rates. The 
agency may reappoint an expert or consultant until his/her total 
earnings from expert or consultant employment with the agency reach the 
lifetime maximum, as determined by using the applicable maximum salary 
rate. At that point, the employment must be terminated.
    (3) OPM may authorize reappointment of an expert or consultant as an 
exception to the limits in the section when necessitated by unforeseen 
and unusual circumstances.



Sec.  304.104  Determining rate of pay.

    (a) The rate of basic pay for experts and consultants is set by 
administrative action. The head of an agency, or his or her designee, 
must determine the appropriate rate of basic pay on an hourly or daily 
basis, subject to the limitations described in section 304.105.
    (b) The head of an agency, or his or her designee, shall consider 
the following factors in setting the initial rate of basic pay for an 
expert or consultant:
    (1) The level and difficulty of the work to be performed;
    (2) The qualifications of the expert or consultant;
    (3) The pay rates of comparable individuals performing similar work 
in Federal or non-Federal sectors; and
    (4) The availability of qualified candidates.
    (c) An expert or consultant appointed under 5 U.S.C. 3109 may be 
employed without pay, provided the individual agrees in advance in 
writing to waive any claim for compensation for those services.



Sec.  304.105  Daily and biweekly basic pay limitations.

    (a) Unless specifically authorized by an appropriation or other 
statute, agencies subject to chapter 51 and subchapter III of chapter 53 
of title 5, United States Code, may not pay for any 1 day an aggregate 
amount of pay (including basic pay, locality pay under subpart F of part 
531 of this chapter, and premium pay under subpart A of

[[Page 148]]

part 550 of this chapter) that exceeds the daily equivalent of the 
highest rate payable under 5 U.S.C. 5332--that is, the daily rate for 
GS-15, step 10, under the General Schedule (excluding locality pay or 
any other additional pay). The daily rate is computed by dividing the 
annual GS-15, step 10, rate by 2,087 hours to find the hourly rate of 
pay and by multiplying the hourly rate of pay by 8 hours.
    (b) Unless specifically authorized by an appropriation or other 
statute, an expert or consultant shall not be paid for any biweekly pay 
period an aggregate amount of pay (including basic pay, locality pay 
under subpart F of part 531 of this chapter, and premium pay under 
subpart A of part 550 of this chapter) in excess of the biweekly rate of 
pay for GS-15, step 10, under the General Schedule (excluding locality 
pay or any other additional pay). The biweekly rate is computed by 
dividing the annual GS-15, step 10, rate by 2,087 hours to find the 
hourly rate of pay and by multiplying the hourly rate of pay by 80 
hours.



Sec.  304.106  Pay and leave administration.

    (a) The employing agency has the authority to adjust the pay of 
experts and consultants after initial appointment and to establish 
appropriate policies governing the amount and timing of any such 
adjustments, subject to the limitations of Sec.  304.105. In addition to 
the factors listed in Sec.  304.104(b), the agency may consider factors 
such as job performance, contributions to agency mission, and the 
general pay increases granted to other Federal employees. Experts and 
consultants are not entitled to receive automatic adjustments in their 
rates of basic pay at the time of general pay increases under 5 U.S.C. 
5303 unless specifically provided for in the official appointing 
document. In the absence of such automatic entitlement, any pay 
adjustments are at the agency's discretion.
    (b) Experts and consultants paid on a daily rate basis are not 
entitled to overtime pay under section 5542 of title 5, United States 
Code. Otherwise, experts and consultants qualify for premium pay under 
subchapter V of chapter 55 of title 5, United States Code, if they meet 
the applicable eligibility requirements (including the requirement that 
an employee have a regularly scheduled tour of duty, where applicable).
    (c) Experts and consultants may be entitled to overtime pay under 
the Fair Labor Standards Act if they are nonexempt under OPM regulations 
implementing that Act for Federal employees. (See 5 CFR part 551).
    (d) An expert or consultant may be paid for service on an 
intermittent basis in more than one expert or consultant position, 
provided the pay is not received for the same period of time (5 U.S.C. 
5533(d)(1)).
    (e) Experts and consultants are subject to the provisions of 5 
U.S.C. 8344 and 8468 on reduction of basic pay by the amount of annuity 
received.
    (f) Experts and consultants are subject to the provisions of 5 
U.S.C. 5532 on reduction of retired military pay.
    (g) Experts and consultants with a regularly scheduled tour of duty 
(i.e., not intermittent) are entitled to sick and annual leave in 
accordance with chapter 63 of title 5, United States Code, and to pay 
for any holiday occurring on a workday on which they perform no work, 
provided that workday is part of the basic workweek. Those employed on 
an intermittent basis do not earn leave and are not entitled to paid 
holidays.



Sec.  304.107  Reports.

    As required by 5 U.S.C. 3109(e), each agency shall report to the 
Office of Personnel Management on an annual basis:
    (a) The number of days the agency employed each paid expert or 
consultant; and
    (b) The total amount the agency paid each expert or consultant so 
employed. (Do not include payments for travel and related expenses.)



Sec.  304.108  Compliance.

    (a) Each agency using 5 U.S.C. 3109 must establish and maintain a 
system of controls and oversight necessary to assure compliance with 5 
U.S.C. 3109 and these regulations. The system must include--
    (1) Appropriate training and information procedures to ensure that 
officials

[[Page 149]]

and employees using the authority understand the statutory and 
regulatory requirements; and
    (2) Appropriate provision for review of expert and consultant 
appointments.
    (b) OPM will, as necessary--
    (1) Review agency employment of experts and consultants and agency 
controls and oversight to determine compliance; and
    (2) Issue instructions and guidance to agencies on employing experts 
and consultants and on reporting procedures.

                           PART 305 [RESERVED]



PART 307_VETERANS RECRUITMENT APPOINTMENTS--Table of Contents




Sec.
307.101 Purpose.
307.102 Definitions.
307.103 Nature of VRAs.
307.104 Treatment of individuals serving under VRAs.
307.105 Appeal rights.

    Authority: 5 U.S.C. 3301, 3302; E.O. 11521, 3 CFR, 1970 Comp., p. 
912; 38 U.S.C. 4214.

    Source: 70 FR 72066, Dec. 1, 2005, unless otherwise noted.



Sec.  307.101  Purpose.

    This part implements 38 U.S.C. 4214 and Executive Order 11521, which 
authorizes agencies to appoint qualified covered veterans to positions 
in the competitive service under Veterans Recruitment Appointments 
(VRAs) without regard to the competitive examining system.



Sec.  307.102  Definitions.

    For purposes of this part--
    Agency, as defined in 38 U.S.C. 4211(5), means any agency of the 
Federal Government or the District of Columbia, including any Executive 
agency as defined in section 105 of title 5, and the United States 
Postal Service and Postal Rate Commission.
    Covered veterans, as defined in 38 U.S.C. 4212(a)(3), means any of 
the following:
    (1) Disabled veterans;
    (2) Veterans who served on active duty in the Armed Forces during a 
war or in a campaign or expedition for which a campaign badge has been 
authorized;
    (3) Veterans who, while serving on active duty with the Armed 
Forces, participated in a United States military operation for which an 
Armed Forces Service Medal (AFSM) was awarded pursuant to Executive 
Order 12985 (61 FR 1209); and
    (4) Recently separated veterans.
    Disabled veteran, as defined in 38 U.S.C. 4211 means:
    (1) A veteran who is entitled to compensation (or who, but for the 
receipt of military retired pay, would be entitled to compensation) 
under laws administered by the Secretary of Veterans Affairs; or
    (2) A person who was discharged or released from active duty because 
of a service-connected disability.
    Qualified, as defined in 38 U.S.C. 4212(a)(3) with respect to 
employment in a position, means having the ability to perform the 
essential functions of the position with or without reasonable 
accommodation for an individual with a disability.
    Recently separated veteran, as defined in 38 U.S.C. 4211(6), means 
any veteran during the three-year period beginning on the date of such 
veteran's discharge or release from active duty.
    Substantially continuous service is defined in 5 CFR 315.201(b)(3).
    War means any armed conflict declared by Congress as such.



Sec.  307.103  Nature of VRAs.

    VRAs are excepted appointments, made without competition, to 
positions otherwise in the competitive service. The veterans' preference 
procedures of part 302 of this chapter apply when there are preference 
eligible candidates being considered for a VRA. Qualified covered 
veterans who were separated under honorable conditions may be appointed 
to any position in the competitive service at grade levels up to and 
including GS-11 or equivalent, provided they meet the qualification 
standards for the position. To be eligible for a VRA as a covered 
veteran under paragraph (2) or (3) of the definition of that term in 
Sec.  307.102, the veteran must be in receipt of the appropriate 
campaign badge, expeditionary medal, or AFSM. For purposes of a VRA, any 
military service is qualifying at the GS-3 level

[[Page 150]]

or equivalent. Upon satisfactory completion of 2 years of substantially 
continuous service, the incumbent's VRA must be converted to a career or 
career conditional appointment. An individual may receive more than one 
VRA appointment as long as the individual meets the definition of a 
covered veteran at the time of appointment.



Sec.  307.104  Treatment of individuals serving under VRAs.

    (a) Because VRAs are made to positions otherwise in the competitive 
service, the incumbents, like competitive service employees, may be 
reassigned, promoted, demoted, or transferred in accordance with the 
provisions of part 335 of this chapter.
    (b) A veteran with less than 15 years of education must receive 
training or education prescribed by the agency.
    (c) Appointments are subject to investigation by OPM. A law, 
Executive order, or regulation that disqualifies a person for 
appointment in the competitive service also disqualifies a person for a 
VRA.
    (d) The Veterans Recruitment Appointment date for a recently 
separated veteran must occur before the end of the 3-year eligibility 
period and may not be extended.



Sec.  307.105  Appeal rights.

    Individuals serving under VRAs have the same appeal rights as 
excepted service employees under parts 432 and 752 of this chapter. In 
addition, as established in Sec.  315.806 of this chapter, any 
individual serving under a VRA, whose employment under the appointment 
is terminated within 1 year after the date of such appointment, has the 
same right to appeal that termination as a career or career-conditional 
employee has during the first year of employment.



PART 308_VOLUNTEER SERVICE--Table of Contents




Sec.
308.101 Definitions.
308.102 Eligibility and status.
308.103 Authority.

    Authority: 5 U.S.C. 3111.

    Source: 44 FR 51183, Aug. 31, 1979, unless otherwise noted.



Sec.  308.101  Definitions.

    In this part: Student is an individual who is enrolled not less than 
half-time in a high school, trade school, technical or vocational 
institute, junior college, college, university or other accredited 
educational institution. An individual who is a student is deemed not to 
have ceased to be a student during an interim between school years if 
the interim is not more than 5 months and if such individual shows to 
the satisfaction of the agency that the individual has a bona fide 
intention of continuing to pursue a course of study or training in the 
same or different educational institution during the school semester (or 
other period into which the school year is divided) immediately after 
the interim.
    Volunteer Service under the Act is limited to services performed by 
a student, with the permission of the institution at which the student 
is enrolled, as part of an agency program established for the purpose of 
providing educational experience for the student. Such service is to be 
uncompensated and will not be used to displace any employee or to staff 
a position which is a normal part of the agency's work force.



Sec.  308.102  Eligibility and status.

    (a) Minimum Age. The selection of students to participate under the 
program should be in conformance with either Federal, State, or local 
laws and standards governing the employment of minors.
    (b) Status. A student participating under an agency volunteer 
program is not considered to be a Federal employee for any purposes 
other than injury compensation or laws related to the Tort Claims Act. 
Service is not creditable for leave accrual or any other employee 
benefits.



Sec.  308.103  Authority.

    Section 301 of the Civil Service Reform Act of 1978, Public Law 95-
454, authorized Federal departments and agencies to establish programs 
designed to provide educationally related work assignments for students 
in nonpay status.

[[Page 151]]



PART 310_EMPLOYMENT OF RELATIVES--Table of Contents




Sec.
310.101 Legal restrictions on public officials in the employment of 
          relatives.
310.102 Exceptions to the legal restrictions on the employment of 
          relatives.

    Authority: 5 U.S.C. 3110.

    Source: 70 FR 20457, Apr. 20, 2005, unless otherwise noted.



Sec.  310.101  Legal restrictions on public officials in the employment of relatives.

    Section 3110 of title 5, United States Code, sets forth the legal 
restrictions on the employment of relatives.



Sec.  310.102  Exceptions to the legal restrictions on the employment of relatives.

    Subsection (d) of 5 U.S.C. 3110 authorizes the Office of Personnel 
Management to prescribe regulations authorizing the temporary employment 
of relatives, in certain conditions, notwithstanding the restrictions. 
This regulation sets forth exceptions to the restrictions. When 
necessary to meet urgent needs resulting from an emergency posing an 
immediate threat to life or property, or a national emergency as defined 
in Sec.  230.402(a)(1) of this title, a public official may employ 
relatives to meet those needs without regard to the restrictions on the 
employment of relatives in 5 U.S.C. 3110. Such appointments are 
temporary and may not exceed 30 days, but the agency may extend such an 
appointment for one additional 30-day period if the emergency need still 
exists at the time of the extension.



PART 315_CAREER AND CAREER-CONDITIONAL EMPLOYMENT--Table of Contents




Subpart A [Reserved]

           Subpart B_The Career-Conditional Employment System

Sec.
315.201 Service requirement for career tenure.
315.202 Conversion from career-conditional to career tenure.

    Subpart C_Career or Career-Conditional Employment From Registers

315.301 Tenure on appointment from register.
315.302 Acquisition of competitive status.

   Subpart D_Career or Career-Conditional Employment by Reinstatement

315.401 Reinstatement.
315.402 Tenure on reinstatement.
315.403 Acquisition of competitive status.

      Subpart E_Career or Career-Conditional Employment by Transfer

315.501 Transfer.
315.502 Tenure on transfer.
315.503 Acquisition of competitive status.

    Subpart F_Career or Career-Conditional Appointment Under Special 
                               Authorities

315.601 Appointment of former employees of the Canal Zone Merit System 
          or Panama Canal Employment System.
315.602 Appointment based on service in the Office of the President or 
          Vice President or on the White House Staff.
315.603 Appointment based on former incumbency of a position brought 
          into the competitive service.
315.604 Employment of disabled veterans who have completed a training 
          course under Chapter 31 of title 38, United States Code.
315.605 Appointment of former ACTION volunteers.
315.606 Noncompetitive appointment of certain present and former Foreign 
          Service officers and employees.
315.607 Noncompetitive appointment of present and former Peace Corps 
          personnel.
315.608 Noncompetitive appointment of certain former overseas employees.
315.609 Appointment based on service in United States positions of the 
          Panama Canal Commission.
315.610 Noncompetitive appointment of certain National Guard 
          technicians.
315.611 Appointment of certain veterans who have competed under agency 
          merit promotion announcements.

  Subpart G_Conversion to Career or Career-Conditional Employment From 
                        Other Types of Employment

315.701 Incumbents of positions brought into the competitive service.
315.702 Employees serving without competitive examination in rare cases.
315.703 Employees formerly reached on a register.

[[Page 152]]

315.704 Conversion to career employment from indefinite or temporary 
          employment.
315.705 Employees serving under transitional or veterans recruitment 
          appointments.
315.706 Certain nonpermanent employees of the Department of Energy.
315.707 Disabled veterans.
315.708 Conversion based on service as a Fellow or Senior Fellow in the 
          Presidential Management Fellows Program.
315.709 Appointment for Persons With Disabilities.
315.710 Professional and administrative career employees serving under 
          Schedule B appointments.
315.711 Readers, interpreters, and personal assistants serving under 
          Schedule A appointments.
315.712 Conversion based on service as a Federal Career Intern.
315.725 Disqualifications.

  Subpart H_Probation on Initial Appointment to a Competitive Position

315.801 Probationary period; when required.
315.802 Length of probationary period; crediting service.
315.803 Agency action during probationary period (general).
315.804 Termination of probationers for unsatisfactory performance or 
          conduct.
315.805 Termination of probationers for conditions arising before 
          appointment.
315.806 Appeal rights to the Merit Systems Protection Board.

     Subpart I_Probation on Initial Appointment to a Supervisory or 
                           Managerial Position

315.901 Statutory requirement.
315.902 Definitions.
315.903 Coverage.
315.904 Basic requirement.
315.905 Length of the probationary period.
315.906 Crediting service toward completion of the probationary period.
315.907 Failure to complete the probationary period.
315.908 Appeals.
315.909 Relationship to other actions.

    Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577. 3 CFR, 1954-
1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. Secs. 315.601 
and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and 
315.604 also issued under 5 U.S.C. 1104. Sec. 315.603 also issued under 
5 U.S.C. 8151. Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 
Comp. p. 111. Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-
1965 Comp. p. 303. Sec. 315.607 also issued under 22 U.S.C. 2506. Sec. 
315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 
315.610 also issued under 5 U.S.C. 3304(d). Sec. 315.611 also issued 
under Section 511, Pub. L. 106-117, 113 Stat. 1575-76. Sec. 315.708 also 
issued under E.O. 13318. Sec. 315.710 also issued under E.O. 12596, 3 
CFR, 1987, Comp. p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 
12107, 3 CFR, 1978 Comp. p. 264.

    Source: 33 FR 12418, Sept. 4, 1968, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 315 appear at 70 FR 
72067, Dec. 1, 2005.

Subpart A [Reserved]



           Subpart B_The Career-Conditional Employment System



Sec.  315.201  Service requirement for career tenure.

    (a) Service requirement. A person employed in the competitive 
service for other than temporary, term, or indefinite employment is 
appointed as a career or career-conditional employee subject to the 
probationary period required by subpart H of this part. Except as 
provided in paragraph (c) of this section, an employee must serve 3 
years of substantially continuous creditable service as defined in 
paragraph (b) of this section to become a career employee.
    (b) Creditable service. Unless otherwise approved by OPM, the 
service required for career tenure must begin and end with nontemporary 
employment in the competitive service except as described in paragraph 
(1) of this subsection, must include service under an appointment based 
on or leading to competitive status, be substantially continuous, and 
total 3 years, as follows:
    (1) Nontemporary employment. To be creditable, the 3-year period of 
service must begin with one of the following:
    (i) Nontemporary appointment in the competitive service. For this 
purpose, nontemporary appointment includes a career-conditional 
appointment; career appointment; reinstatement under subpart D of this 
part; and transfer under subpart E of this part. The 3-year period may 
also begin, but not end, with status quo employment under subpart G of 
part 316 of this chapter, and overseas limited appointment of indefinite

[[Page 153]]

duration or overseas limited term appointment under part 301 of this 
chapter. The 3-year period also may have begun with permanent employment 
under now obsolete appointing authorities such as probational, war 
service indefinite, and emergency indefinite appointments. 
Determinations of whether an obsolete authority provides the basis for 
creditable service may be obtained from OPM;
    (ii) The acquisition of competitive status on January 23, 1955, 
under provisions of Executive Order 10577, while serving in the excepted 
service;
    (iii) Nontemporary appointment from a civil service register to a 
position in the excepted service before January 23, 1955;
    (iv) Nontemporary appointment to a position in the District of 
Columbia Government before January 23, 1955, evidencing selection in 
regular order from a civil service register used to certify for 
probational appointment in the Federal service. Appointment from a 
register maintained only for District of Columbia Government would not 
meet this condition;
    (v) Nontemporary appointment to an excepted position, provided the 
employee's excepted position was brought into the competitive service 
and, on that basis, the employee acquired competitive status or was 
converted to a career or career-conditional appointment;
    (vi) Nontemporary appointment to a nonappropriated fund (NAF) 
position in or under the Department of Defense, provided the employee's 
NAF position was brought into the competitive service and, on that 
basis, the employee acquired competitive status or was converted to a 
career or career-conditional appointment;
    (vii) Nontemporary excepted or nonappropriated fund appointment, 
Foreign Service appointment, or appointment in the Canal Zone Merit 
System, provided the employee is appointed or transferred to a 
competitive service position under the terms of an interchange agreement 
with another merit system under Sec.  6.7 of this chapter, under 
Executive Order 11219 as amended by Executive Order 12292, or under 
Executive Order 11171;
    (viii) The date of appointment to a position on the White House 
Staff or in the immediate office of the President or Vice President, 
provided the service has been continuous and the individual was 
appointed to a competitive service position under Sec.  315.602 of this 
chapter;
    (ix) The date of nontemporary excepted appointment under Sec.  
213.3202(b) of this chapter, provided the student's appointment is 
converted to career or career-conditional appointment under Executive 
Order 12015, with or without an intervening term appointment, and 
without a break in service of one day.
    (x) The date of veterans recruitment appointment (VRA), provided the 
appointment is converted to career or career-conditional appointment 
under Sec.  315.705 of this chapter, or the person is appointed from a 
civil service register without a break in service while serving under a 
VRA;
    (xi) The date of nontemporary appointment to the Postal Career 
Service or the Postal Rate Commission after July 1, 1971, provided the 
individual is appointed to a career or career-conditional appointment 
under 39 U.S.C. 1006;
    (xii) The date of nontemporary appointment under Schedule A, Sec.  
213.3102(u) of this chapter, of a person with mental retardation, a 
severe physical disability, or a psychiatric disability, provided the 
employee's appointment is converted to a career or career-conditional 
appointment under Sec.  315.709;
    (xiii) The date of appointment as a participant in the Presidential 
Management Fellows Program under the provisions of Executive Order 
13318, provided the employee's appointment is converted without a break 
in service to career or career-conditional appointment under Sec.  
315.708;
    (xiv) The date of temporary appointment pending establishment of a 
register, provided the appointment was converted to career executive 
assignment;
    (xv) The date of temporary appointment pending establishment of a 
register (TAPER), provided:
    (A) The employee is serving on or after February 8, 1968, and his or 
her TAPER employment is changed by conversion or by an appointment 
without a break in service of a single workday

[[Page 154]]

to a career or career-conditional appointment from a civil service 
register; and
    (B) His or her TAPER service has been continuous without a break in 
service of more than 30 calendar days or without interruption for more 
than 30 calendar days by other than status quo or indefinite employment 
in the competitive service, or military service provided he or she is 
reemployed as a TAPER employee within 120 days after separation under 
honorable conditions from the military service;
    (xvi) The starting date of National Guard technician service 
performed before January 1, 1969, provided the person was employed as a 
National Guard technician on December 31, 1968, and his or her position 
was brought into the competitive service on January 1, 1969;
    (xvii) The starting date of active service as an administrative 
enrollee in the United States Merchant Marine Academy; and
    (xviii) The date on which an employee became eligible for benefits 
under Public Law 83-121, unless an earlier date can be chosen because of 
prior nontemporary service.
    (xix) Appointment as a career intern under Schedule B, Sec.  
213.3202(o) of this chapter, provided the employee's appointment is 
converted to career or career-conditional appointment under Sec.  
315.712.
    (2) Competitive status. Career tenure is acquired only under a 
permanent appointment in the competitive service that provides or leads 
to competitive status.
    (3) Substantially continuous service. A single break in creditable 
service of more than 30 calendar days will require the beginning of a 
new 3-year period, except for:
    (i) Breaks incident to entry into or return from military service 
and return from defense transfer, provided the person is reemployed in 
Federal service during his or her period of statutory or regulatory 
restoration or reemployment rights;
    (ii) Breaks incident to transfer to and from an international 
organization, provided the person is reemployed in Federal service under 
subpart C of part 352 of this chapter;
    (iii) Breaks during which an employee was eligible to receive injury 
compensation under the Office of Workers' Compensation Programs, 
provided the person is reemployed under part 353 of this chapter;
    (iv) Breaks incident to a restoration to correct an unjustified or 
unwarranted separation;
    (v) Breaks following separation by reduction in force of employees 
who are eligible for entry on the reemployment priority list under 
subpart B of part 330 of this chapter, provided the person is reemployed 
in Federal service during the period of his or her reemployment 
priority;
    (vi) Breaks following involuntary separation without personal cause 
of employees who are eligible for a noncompetitive appointment based on 
an interchange agreement with another merit system under Sec.  6.7 of 
this chapter, provided the person is employed in the competitive service 
under the agreement during the period of his or her eligibility;
    (vii) Breaks incident to volunteer service or training required 
after enrollment in volunteer service provided the person is reemployed 
in Federal service within 90 days of the termination of volunteer 
service or training. This provision applies to Peace Corps, VISTA, or 
other ACTION full-time programs that are potentially creditable in 
subsequent Federal employment for length of service for leave, reduction 
in force, and retirement purposes;
    (viii) Breaks incident to employment in a nonfederal organization 
that occurred because a Federal function was transferred to the 
organization by law, provided the employee moved as a result of the 
transfer of function without a break in service of more than 3 days to 
the nonfederal organization and is reemployed by nontemporary 
appointment in the competitive service without a break in service of 
more than 30 calendar days after separation from the nonfederal 
organization;
    (ix) Employment with the District of Columbia Government after 
January 1, 1980 (the date the District implemented an independent merit 
personnel system

[[Page 155]]

not tied to the Federal system), provided the person was a District 
employee on December 31, 1979, was converted to the District system on 
January 1, 1980, and is reemployed by nontemporary appointment in the 
competitive service without a break in service of more than 30 calendar 
days after separation from District employment; and
    (x) Breaks that occur when a career-conditional employee leaves 
Federal employment to accompany a spouse or parent (if the employee is 
their unmarried child under 21 years of age) who is a member of the 
Armed Forces or a Federal civilian employee on official assignment to an 
overseas post of duty, provided the employee's separation from 
employment occurs no more than 90 calendar days prior to going overseas 
and reinstatement occurs while overseas or within 180 calendar days of 
return to the United States. Overseas posts of duty are duty locations 
outside the 50 States of the United States, the District of Columbia, 
Guam, Puerto Rico, and the Virgin Islands.
    (4) Crediting service. An employee's creditable service must total 3 
years, under the following conditions.
    (i) Work schedule. (A) Full-time service, and part-time service on 
or after July 1, 1962, are counted as calendar time from the date of 
appointment to date of separation.
    (B) Intermittent service on or after July 1, 1962 is counted as 1 
day for each day an employee is in pay status, regardless of the number 
of hours for which the employee is actually paid on a given day. For 
this purpose, 780 days in pay status are equivalent to 3 years' service, 
but the service requirement may not be satisfied in less than 3 years of 
calendar time.
    (C) Part-time and intermittent service before July 1, 1962, is 
counted based on the number of hours actually employed, including any 
paid leave. For this purpose, 6,240 hours of paid time are equivalent to 
3 years' service, but the service requirement may not be satisfied in 
less than 3 years of calendar tine.
    (ii) Nonpay status on the rolls and time off the rolls. No credit is 
given for periods of nonpay status and time off the rolls, except under 
the following conditions:
    (A) Credit is given for the first 30 calendar days of each period of 
nonpay status on the rolls during full-time employment, or during part-
time employment on or after July 1, 1962. On this same basis, a seasonal 
employee receives credit for the first 30 calendar days of each period 
of nonduty/nonpay status. Nonpay status in excess of 30 days extends the 
3-year waiting period by the amount of the excess;
    (B) Full credit is given for periods of nonpay status and time off 
the rolls incident to entry into and return from military service and 
return from defense transfer, provided the person is reemployed in 
Federal service during the period of his or her statutory or regulatory 
restoration or reemployment rights;
    (C) Full credit is given for periods of nonpay status and time off 
the rolls incident to transfer to and return from an international 
organization, provided the person is reemployed in Federal service under 
subpart C of part 352 of this chapter;
    (D) Full credit is given for periods of nonpay status during which 
an employee was eligible to receive continuation of pay or injury 
compensation under the Office of Workers' Compensation Programs. Full 
credit also is given for periods of time off the rolls during which an 
employee was eligible to receive injury compensation under the Office of 
Workers' Compensation Programs, provided the person is reemployed under 
part 353 of this chapter.
    (E) Credit is given for up to 30 calendar days for time off the 
rolls that follows separation by reduction in force of employees who are 
eligible for entry on the reemployment priority list under subpart B of 
part 330 of this chapter, provided the person is reemployed in Federal 
service during the period of his or her reemployment priority; and
    (F) Credit is given for up to 30 calendar days for time off the 
rolls that follow involuntary separation without personal cause of 
employees who are eligible for a noncompetitive appointment based on an 
interchange agreement with another merit system under

[[Page 156]]

Sec.  6.7 of this chapter, provided the person is employed in the 
competitive service under the agreement during the period of his or her 
eligibility.
    (iii) Restoration based on unwarranted or improper actions. (A) 
Based on a finding made before March 30, 1966, that a furlough, 
suspension, or separation was unwarranted or improper, an employee 
restored to duty receives full calendar time credit for the period of 
furlough, suspension, or separation if he or she was eligible to receive 
retroactive pay under 5 U.S.C. 5591-93 (formerly Pub. L. 80-623) or 5 
U.S.C. 5594 (formerly Pub. L. 81-733).
    (B) Based on a finding made on or after March 30, 1966, that a 
furlough, suspension, or separation was unwarranted or improper, an 
employee restored to duty receives full calendar time credit for the 
period of furlough, suspension, or separation for which he or she is 
eligible to receive back pay. If the employee is restored to duty at a 
date later than the original adverse action, credit for intervening 
periods of nonpay status or breaks in service is given in accordance 
with other provisions of this subsection. If the employee had been 
properly separated from the rolls of the agency before a finding was 
made that the adverse action was unwarranted or improper, the correction 
and additional service credit given the employee may not extend beyond 
the date of the proper separation.
    (iv) Intervening service. Certain types of service that ordinarily 
are not creditable are counted when they intervene between two periods 
of creditable service without a single break in service in excess of 30 
calendar days, excepted as provided in subparagraph (H) of his 
paragraph. Under these conditions, credit is given for periods of 
service:
    (A) In the excepted service of the Federal executive branch, 
including employment in nonappropriated fund positions in or under any 
Federal agency;
    (B) Under temporary, term, or other nonpermanent employment in the 
Federal competitive service;
    (C) In the Senior Executive Service;
    (D) In the Federal legislative branch;
    (E) In the Federal judicial branch;
    (F) In the armed forces;
    (G) In the District of Columbia Government through December 31, 
1979. For an employee on the District rolls on December 31, 1979, who 
converted on January 1, 1980, to the District independent personnel 
system, credit also is given for service between January 1, 1980, and 
September 25, 1980. Otherwise, service in the District of Columbia 
Government on or after January 1, 1980, is not creditable as intervening 
service; and
    (H) Performed overseas by family members, as defined by Sec.  
315.608 of this chapter. Such service is creditable toward career tenure 
if it intervenes between two periods of creditable service without a 
single break in excess of 180 days.
    (c) Exceptions from service requirement. The service requirement for 
career tenure does not apply to:
    (1) An appointment to a position required by law to be filled on a 
permanent basis, or a conversion under this part while the employee is 
serving in such a position;
    (2) An appointment from a register of a person who once completed 
the service requirement for career tenure;
    (3) An appointment under Sec.  315.601 of a former Canal Zone Merit 
System employee who completed the service requirement for career tenure 
under that system; or
    (4) The reinstatement of a person who once completed the service 
requirement for career tenure.

[33 FR 12418, Sept. 4, 1968, as amended at 43 FR 34428, Aug. 4, 1978; 59 
FR 68104, Dec. 30, 1994; 60 FR 53504, Oct. 16, 1995; 62 FR 63630, Dec. 
2, 1997; 63 FR 57046, Oct. 26, 1998; 65 FR 78078, Dec. 14, 2000; 70 FR 
28779, May 19, 2005; 70 FR 44221, Aug. 2, 2005; 71 FR 42245, July 26, 
2006]



Sec.  315.202  Conversion from career-conditional to career tenure.

    A career-conditional employee becomes a career employee 
automatically on completion of the service requirement for career 
tenure.

[[Page 157]]



    Subpart C_Career or Career-Conditional Employment From Registers



Sec.  315.301  Tenure on appointment from register.

    (a) Except as provided in paragraph (b) of this section, an eligible 
appointed from a register for other than temporary or term employment 
becomes a career-conditional employee.
    (b) An eligible appointed from a register for other than temporary 
or term employment becomes a career employee when he is excepted from 
the service requirement for career tenure by Sec.  315.201(c).



Sec.  315.302  Acquisition of competitive status.

    An employee appointed as provided in Sec.  315.301 acquires a 
competitive status automatically on completion of probation.



   Subpart D_Career or Career-Conditional Employment by Reinstatement



Sec.  315.401  Reinstatement.

    (a) Agency authority. Subject to part 335 of this chapter and 
paragraph (b) of this section, an agency may appoint by reinstatement to 
a competitive service position a person who previously was employed 
under career or career-conditional appointment (or equivalent).
    (b) Time limit. There is no time limit on the reinstatement 
eligibility of a preference eligible or a person who completed the 
service requirement for career tenure. Except as provided in paragraph 
(c) of this section, an agency may reinstate a nonpreference eligible 
who has not completed the service requirement for career tenure only 
within 3 years following the date of separation. This time limit begins 
to run from the date of separation from the last position in which the 
person served under a career appointment, career-conditioned 
appointment, indefinite appointment in lieu of reinstatement, or an 
appointment under which he or she acquired competitive status.
    (c) Extension of time limit. Intervening service of the following 
types extends the 3-year limit on reinstatement of eligibility of a 
nonpreference eligible who has not completed the service requirement for 
career tenure:
    (1) Employment in Federal competitive service positions under 
temporary, term, indefinite, or other nonpermanent appointment.
    (2) Employment in Federal excepted, nonappropriated fund, or Senior 
Executive Service positions in the executive branch;
    (3) Employment in the Federal judicial branch or in the executive or 
judicial branches of the insular possessions of the United States;
    (4) Employment in Federal legislative branch;
    (5) Employment in an international governmental organization or a 
territorial, State, county, municipal, or foreign government in a 
position in which the agency determines that the proposed appointee 
acquired valuable training and experience for the position to be filled;
    (6) A substantially full-time training course in any educational 
institution of recognized standing when the agency finds that the 
proposed appointee acquired valuable training or experience for the 
position to be filled;
    (7) Compulsory service on work of national importance under civilian 
direction as required by the Military Selective Service Act;
    (8) Active military duty terminated under honorable conditions;
    (9) Service with the District of Columbia Government prior to 
January 1, 1980. In addition, for an employee on the District Government 
rolls on December 31, 1979, who was converted on January 1, 1980, to the 
District of Columbia merit personnel system, continuous District 
Government service after that date also extends the 3-year period;
    (10) Periods of nonemployement during which a person is eligible for 
injury compensation under the Office of Workers' Compensation Programs;
    (11) Periods of nonemployment during which a person receives 
disability retirement under the Civil Service or Federal Employees 
Retirement System;
    (12) Employment by a nonfederal organization when the person's 
function

[[Page 158]]

was transferred to the nonfederal organization on a contract basis or by 
law or executive order;
    (13) Volunteer service and training required prior to actual 
enrollment as a volunteer with Peace Corps, VISTA, and other programs of 
the Corporation for National and Community Service if it begins within 
the period the person is eligible for reinstatement; and
    (14) Periods of overseas residence during which a spouse or 
unmarried child, under 21 years of age, of a member of the Armed Forces 
or of a Federal civilian employee is accompanying that individual on 
official assignment to an overseas post of duty. Overseas posts of duty 
are duty locations outside the 50 States of the United States, the 
District of Columbia, Guam, Puerto Rico, and the Virgin Islands.

[33 FR 12418, Sept. 4, 1968, as amended at 59 FR 68107, Dec. 30, 1994; 
60 FR 53504, Oct. 16, 1995]



Sec.  315.402  Tenure on reinstatement.

    (a) Except as provided in paragraph (b) of this section, a person 
who is reinstated becomes a career-conditional employee.
    (b) A person who is reinstated becomes a career employee when he has 
completed the service requirement for career tenure or is excepted from 
it by Sec.  315.201(c).



Sec.  315.403  Acquisition of competitive status.

    A person who was serving probation when he was separated and who is 
reinstated under Sec.  315.401 acquires a competitive status 
automatically on completion of probation.



      Subpart E_Career or Career-Conditional Employment by Transfer



Sec.  315.501  Transfer.

    Subject to part 335 of this chapter, an agency may appoint by 
transfer to a competitive service position, without a break in service 
of a single workday, a current career or career-conditional employee of 
another agency.

[60 FR 53504, Oct. 16, 1995]



Sec.  315.502  Tenure on transfer.

    (a) General rule. Except as provided in paragraph (b) of this 
section, a career employee who transfers remains a career employee and a 
career-conditional employee who transfers remains a career-conditional 
employee.
    (b) Exceptions. (1) A career-conditional employee who transfers to a 
position required by law to be filled on a permanent basis becomes a 
career employee.
    (2) A career employee who transfers from a position required by law 
to be filled on a permanent basis becomes a career-conditional employee 
unless he or she has completed the service requirement for career 
tenure.

[60 FR 53504, Oct. 16, 1995]



Sec.  315.503  Acquisition of competitive status.

    An employee who was serving probation when he was appointed under 
Sec.  315.501 acquires a competitive status automatically on completion 
of probation.



    Subpart F_Career or Career-Conditional Appointment Under Special 
                               Authorities



Sec.  315.601  Appointment of former employees of the Canal Zone Merit System or Panama Canal Employment System.

    (a) Agency authority. This section may be used by an agency to 
appoint noncompetitively, for other than temporary or term employment, a 
United States citizen separated from a career or career-conditional 
appointment under the Canal Zone Merit System, which was in effect 
before March 31, 1982, or under the Panama Canal Employment System, 
which became effective on March 31, 1982. (Appointments of such persons 
for temporary or term employment are to be made under applicable 
provisions of part 316 of this chapter.)
    (b) Service requirement. An agency may appoint such a former 
employee under this section only when, immediately prior to separation 
from a qualifying appointment, the employee served continuously for at 
least one

[[Page 159]]

year under a nontemporary appointment in the Canal Zone Merit System, 
the Panama Canal Employment System, or a combination of the two systems.
    (c) Time limits. (1) There is no time limit on the appointment under 
this section of an employee who:
    (i) Is a preference eligible; or
    (ii) Has completed at least 3 years of service, which did not 
include any break in service longer than 30 days, under one or more 
career-conditional or career appointments in the Canal Zone Merit System 
and/or the Panama Canal Employment System.
    (2) An agency may appoint under this section an employee who does 
not meet the conditions in (c)(1) of this section provided no more than 
3 years have elapsed since:
    (i) separation from a qualifying Canal Zone Merit System or Panama 
Canal Employment System appointment; or
    (ii) separation from service in Panama in a position excluded from 
the Canal Zone Merit System or Panama Canal Employment System, when such 
service immediately followed service under a qualifying appointment in 
one of those systems.
    (d) Tenure on appointment. On appointment under paragraph (a) of 
this section: (1) A former career employee of the Canal Zone Merit 
System or Panama Canal Employment System becomes a career employee.
    (2) A former Canal Zone Merit System and/or Panama Canal Employment 
System employee whose service from the date of career-conditional 
appointment in the Canal Zone Merit System or Panama Canal Employment 
System through the date of noncompetitive appointment under this 
section, inclusive, does not include any break in service of more than 
30 days and totals at least 3 years becomes a career employee.
    (3) All other former Canal Zone Merit System and Panama Canal 
Employment System employees become career-conditional employees.
    (e) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section automatically acquires a competitive 
status:
    (1) On appointment, if he or she has satisfactorily completed a 1-
year probationary period under the Canal Zone Merit System and/or the 
Panama Canal Employment System.
    (2) On satisfactory completion of probation in accordance with Sec.  
315.80 (a)(3) if he or she had not completed a 1-year probationary 
period under the Canal Zone Merit System or Panama Canal Employment 
System.

[48 FR 13951, Apr. 1, 1983]



Sec.  315.602  Appointment based on service in the Office of the President or Vice-President or on the White House Staff.

    (a) Agency authority. An agency may appoint noncompetitively a 
person who has served at least 2 years in the immediate Office of the 
President or Vice-President or on the White House Staff, provided that 
the appointment is effected without a break in service of 1 full 
workday.
    (b) Tenure on appointment. (1) Except as provided in paragraph 
(b)(2) of this section, a person appointed under paragraph (a) of this 
section becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) of this section becomes a 
career employee when he or she has completed the service requirement for 
career tenure or is excepted from it by Sec.  315.201(c).
    (c) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires a competitive status 
automatically on appointment.

[44 FR 54692, Sept. 21, 1979]



Sec.  315.603  Appointment based on former incumbency of a position brought into the competitive service.

    (a) Agency authority--(1) Employee in military service. An agency 
may appoint a former incumbent of a permanent excepted position who was 
serving under an appointment not limited to 1 year or less, or of a 
position in public or private enterprise when the position was brought 
into the competitive service on a continuing basis and who left his 
position after June 30, 1950, to perform active military service when:
    (i) The position was brought into the competitive service before or 
during

[[Page 160]]

his military service or during the period in which he had restoration 
rights thereto, and he left the position to enter military service 
before the end of the time limits set forth in Sec.  315.701(c);
    (ii) He has been released from military service under honorable 
conditions;
    (iii) The agency submits a recommendation for his appointment to OPM 
within 6 months after release from military service under honorable 
conditions or after hospitalization continuing after release for not 
more than 1 year; and
    (iv) He performed 6 months of satisfactory service immediately 
before the date his position was brought into the competitive service in 
a position or positions brought into the competitive service, or in the 
civilian executive branch of the Government, unless OPM has excepted his 
particular type of case from this requirement.
    (2) Employee separated. An agency may appoint a former incumbent of 
a permanent excepted position under an appointment not limited to 1 year 
or less or of a position in public or private enterprise when the 
position was brought into the competitive service on a continuing basis, 
and who was separated thereafter, when:
    (i) He is recommended for appointment within the time limits set 
forth in Sec.  315.701(c); and
    (ii) He performed 6 months of satisfactory service immediately 
before the date his position, was brought into the competitive service, 
in a position or positions brought into the competitive service or in 
the civilian executive branch of the Government, unless OPM has excepted 
his particular type of case from this requirement.
    (3) Employee recovered from compensable injury. An agency may 
appoint a former incumbent of a permanent excepted position who was 
serving under an appointment not limited to 1 year or less, when the 
position has been brought into the competitive service and when:
    (i) The employee is entitled to restoration based on recovery from 
compensable injury in accordance with 5 U.S.C. 8151 and part 353;
    (ii) The employee's position was brought into the competitive 
service either before the employee's separation for compensable injury 
or during his or her period of statutory restoration rights following 
such injury, and the employee's separation for compensable injury 
occurred before the end of the time limits set forth in Sec.  
315.701(c);
    (iii) The agency initiates the appointment within 6 months after 
cessation of compensation; and
    (iv) The employee performed 6 months of statisfactory service 
immediately before the date his or her position was brought into the 
competitive service in the civilian executive branch of the Government, 
unless OPM has excepted his or her particular type of case from this 
requirement.
    (b) Review of disapproved recommendations. Agencies shall establish 
procedures for reviewing disapprovals of recommendations for appointment 
under this section when such review is requested within 6 months after 
the date of disapproval.
    (c) Tenure on appointment. (1) Except as provided in paragraph 
(c)(2) of this section, a person appointed under paragraph (a) of this 
section becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) of this section becomes a 
career employee when he has completed the service requirement for career 
tenure or is excepted from it by Sec.  315.201(c).
    (d) Acquisition of competitive status. (1) A person appointed under 
paragraph (a)(1) of this section acquires a competitive status 
automatically on appointment.
    (2) A person appointed under paragraph (a)(2) or (a)(3) of this 
section acquires a competitive status automatically on completion of 
probation.

[33 FR 12418, Sept. 4 1968, as amended at 43 FR 34428, Aug. 4, 1978; 54 
FR 37092, Sept. 7, 1989; 66 FR 66710, Dec. 27, 2001]



Sec.  315.604  Employment of disabled veterans who have completed a training course under Chapter 31 of title 38, United States Code.

    (a) When a disabled veteran satisfactorily completes an approved 
course of training prescribed by the Veterans Administration under 
chapter 31, title 38, United States Code, any agency

[[Page 161]]

may appoint the veteran noncompetitively to the position of class of 
positions for which trained.
    (b) Conversion. An agency may convert to career or career-
conditional employment a person appointed under paragraph (a) of this 
section.
    (c) Disqualifications. Any law, Executive order, or civil service 
rule or regulation which would disqualify an applicant for appointment 
also disqualifies him or her for conversion of his or her employment to 
career or career-conditional employment under this section.
    (d) Tenure on approval of recommendation. When an agency converts 
the employee under paragraph (b) of this section, the employee becomes:
    (1) A career-conditional employee, except as provided in paragraph 
(d)(2) of this section; and
    (2) A career employee when he or she has completed the service 
requirement for career tenure or is excepted from it by Sec.  
315.201(c).
    (e) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires a competitive status automatically on conversion.

[44 FR 54692, Sept. 21, 1979, as amended at 44 FR 55132, Sept. 25, 1979]



Sec.  315.605  Appointment of former ACTION volunteers.

    (a) Agency authority. An agency in the executive branch may appoint 
noncompetitively, for other than temporary employment, a person whom the 
Director of ACTION certifies as having served satisfactorily as a 
volunteer or volunteer leader under the Peace Corps Act (22 U.S.C. 2051 
et seq.), or as a VISTA volunteer under the Economic Opportunity Act of 
1964 (42 U.S.C. 2991 et seq.) or the Domestic Volunteer Service Act of 
1973 (Pub. L. 93-113), or as a full-time community volunteer (including 
criminal justice volunteer, volunteer in justice, and VET REACH 
volunteer) under part C of title I of Pub. L. 93-113. To be qualifying 
under this section VISTA and community volunteer service must total at 
least 1 year. In addition, a community volunteer must have served prior 
to October 1, 1976.
    (b) Time limit. An agency in the executive branch may make an 
appointment under this section only within 1 year after the person 
completes the qualifying service. (For Community volunteers who have 
completed their service before March 10, 1978, the 1-year period begins 
on March 10, 1978.) However, an agency may extend the period for 2 more 
years to a total of 3 years if the person, after the qualifying service, 
is:
    (1) In the military service;
    (2) Studying at a recognized institution of higher learning; or
    (3) In another activity which, in the agency's view, warrants 
extension.
    (c) Conditions. Any law, Executive order, or regulation that 
disqualifies an applicant for appointment also disqualifies an applicant 
for appointment under this section.
    (d) Tenure on appointment. (1) Except as provided in paragraph 
(d)(2) of this section, a person appointed under paragraph (a) of this 
section becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) or this section becomes a 
career employee if excepted from the service requirement for career 
tenure by Sec.  315.201(c).
    (e) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires a competitive status 
automatically on completion of probation.

[39 FR 961, Jan. 4, 1974, as amended at 43 FR 20954, May 16, 1978; 43 FR 
34428, Aug. 4, 1978]



Sec.  315.606  Noncompetitive appointment of certain present and former Foreign Service officers and employees.

    Subject to the conditions prescribed by OPM, an agency may appoint 
noncompetitively a present or former career officer or employee of the 
Foreign Service who was appointed under authority of the Foreign Service 
Act of 1946, as amended (22 U.S.C. 801 et seq.), or legislation that 
supplements or replaces that Act, if:
    (a) He qualifies under the requirements set forth in Executive Order 
11219, and

[[Page 162]]

    (b) OPM has concurred in his present or former agency's plan, and 
substantive changes thereto, for noncompetitive entry of civil service 
employees into the Foreign Service positions of that agency.

[33 FR 12418, Sept. 4 1968, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  315.607  Noncompetitive appointment of present and former Peace Corps personnel.

    (a) An agency in the executive branch may appoint noncompetitively, 
for other than temporary appointment, an individual:
    (1) Who has completed no less than 36 months of continuous service 
without a break in service of 3 days or more under section 7(a) of the 
Peace Corps Act (22 U.S.C. 2506) which pertains to the appointment of 
Peace Corps staff (not volunteers);
    (2) Whom the Director of the Peace Corps certifies as having 
satisfactorily served under such an appointment; and
    (3) Who meets OPM qualification standards--including any written 
test requirements--for the position in question.
    (4) Who is not a Peace Corps volunteer as this paragraph does not 
apply to Peace Corps volunteers.
    (b) Time limitations. (1) An individual's eligibility under this 
section extends through September 30, 1982, or until 3 years after 
separation from qualifying service with the Peace Corps, whichever is 
later.
    (2) An agency may not extend this period.
    (c) Conditions. Any law, Executive order, or regulation which 
disqualifies an applicant for appointment in the competitive service 
also disqualifies an applicant for appointment under this section.
    (d) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires competitive status automatically 
upon completion of probation.
    (e) Tenure on appointment. (1) Except as provided in paragraph 
(e)(2) of this section, a person appointed under paragraph (a) of this 
section becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) of this section becomes a 
career employee if excepted from the service requirement for career 
tenure by Sec.  315.201(c).

[45 FR 43365, June 27, 1980, as amended at 46 FR 35079, July 7, 1981; 54 
FR 37092, Sept. 7, 1989]



Sec.  315.608  Noncompetitive appointment of certain former overseas employees.

    (a) Authority. An executive branch agency may noncompetitively 
appoint, to a competitive service position within the United States 
(including Guam, Puerto Rico, and the Virgin Islands), an individual who 
has completed 52 weeks of creditable overseas service as defined in 
paragraph (b) of this section and is appointed within the time limits in 
paragraph (d) of this section. Any law, Executive order, or regulation 
that disqualifies an applicant for appointment in the competitive 
service, such as the citizenship requirement, also disqualifies the 
applicant for appointment under this section. An individual may be 
appointed to any occupation and grade level for which qualified. An 
agency may waive any requirement for a written test after determining 
that the duties and responsibilities of the applicant's overseas 
position were similar enough to make the written test unnecessary.
    (1) Tenure. A person appointed under this section becomes a career-
conditional employee unless he or she has already satisfied the 
requirements for career tenure or is exempt from the service requirement 
in 5 CFR 315.201.
    (2) Competitive status. A person appointed under this section 
acquires competitive status automatically upon completion of probation.
    (b) Creditable overseas service. For purposes of this section only, 
creditable service is service in an appropriated fund position(s) 
performed by a family member under a local hire appointment(s) overseas 
during the time the family member was accompanying a sponsor officially 
assigned to an overseas area and for which the family member received a 
fully successful or better (or equivalent) performance rating. 
Creditable overseas service is computed in accordance with the 
procedures in the OPM Guide to Processing Personnel Actions. Creditable 
service

[[Page 163]]

may have been under more than one appointment and need not be 
continuous. Leave without pay taken during the time an individual is in 
the overseas area is credited on the same basis as time worked.
    (c) Service waiver. Up to 26 weeks of the 52-week service 
requirement is waived when the head of an agency (or designee) that 
employed the family member overseas certifies that the family member's 
expected 52 weeks of employment were cut short because of a nonpersonal 
situation that necessitated the relocation of the family member from the 
overseas area. The certification must include the number of weeks 
waived. For this purpose, a nonpersonal situation includes disaster, 
conflict, terrorism or the threat of terrorism, and those situations 
when a family member is forced to return to the United States because of 
military deployment, drawdowns, or other management-initiated actions. A 
nonpersonal situation does not include circumstances that specifically 
relate to a particular individual, for example, ill health or personal 
interest in relocating.
    (d) Time limit on eligibility. An individual is eligible for 
appointment(s) under this authority for a period of 3 years following 
the date of returning from overseas to the United States to resume 
residence or until March 31, 1998, whichever date is later. An agency 
may extend an individual's appointment eligibility beyond 3 years for 
periods equivalent to--
    (1) The time the individual was accompanying a sponsor on official 
assignment to an area of the United States with no significant 
opportunities for Federal employment; or
    (2) The time an individual was incapacitated for employment.
    (e) Definitions. In this section terms have the following meaning:
    (1) Family member. An unmarried child under age 23 or a spouse. An 
individual must have been a family member at the time he or she met the 
overseas service requirement and other conditions but does not need to 
be a family member at the time of noncompetitive appointment in the 
United States.
    (2) Sponsor. A Federal civilian employee, a Federal nonappropriated 
fund employee, or a member of a uniformed service who is officially 
assigned to an overseas area.
    (i) Officially assigned. Under active orders issued by the United 
States Government.
    (ii) Federal civilian employee. An employee of the executive, 
judicial, or legislative branch of the United States Government who 
serves in an appropriated fund position.
    (iii) Nonappropriated fund employee. An employee paid from 
nonappropriated funds of the Army and Air Force Exchange Service, Navy 
Ship's Stores Ashore, Navy Exchanges, Marine Corps Exchanges, Coast 
Guard Exchanges, or other instrumentalities of the United States.
    (iv) Member of a uniformed service. Personnel of the U.S. Armed 
Forces (including the Coast Guard), the commissioned corps of the Public 
Health Service, and the commissioned corps of the National Oceanic and 
Atmospheric Administration.
    (3) Accompanying. The family member resided in the overseas area 
while the sponsor was officially assigned to an overseas post of duty. 
The family member need not have physically resided with the sponsor at 
all times or have traveled with the sponsor to or from the overseas 
area.
    (4) Local hire appointment. An appointment that is not actually or 
potentially permanent and that is made from among individuals residing 
in the overseas area. In this section only, a local hire appointment 
includes nonpermanent employment under:
    (i) Overseas limited appointment under 5 CFR 301.203(b) or (c);
    (ii) Expected appointment under Schedule A 213.3106(b)(1), 
213.3106(b)(6), or 213.3106(d)(1)) when the duration of the appointment 
is tied to the sponsor's rotation date or when the appointment is made 
on a not-to-exceed (NTE) basis;
    (iii) An ``American family member'' or ``part-time intermittent 
temporary (PIT)'' appointment in U.S. diplomatic establishments;
    (iv) 50 U.S.C. 403j; Public Law 86-36 (50 U.S.C. 402, note); the 
Berlin Tariff

[[Page 164]]

Agreement; or as a local national employee paid from appropriated funds; 
or
    (v) Any other nonpermanent appointment in the competitive or 
excepted service approved by OPM.
    (5) Overseas. A location outside the 50 States of the United States, 
the District of Columbia, Guam, Puerto Rico, and the Virgin Islands.

[61 FR 9322, Mar. 8, 1996]



Sec.  315.609  Appointment based on service in United States positions of the Panama Canal Commission.

    (a) Agency authority. An agency may appoint noncompetitively, for 
other than temporary or term employment, a United States citizen who has 
served under nontemporary appointment in a continuing career position of 
the Panama Canal Commission located in the United States.
    (b) Service requirement. An agency may appoint such an individual 
under this section only when, immediately prior to separation from a 
qualifying appointment with the Panama Canal Commission in the United 
States, the individual served continuously for at least 1 year under 
such qualifying appointment or under a combination of such appointment 
and nontemporary appointment in the Canal Zone Merit System or the 
Panama Canal Employment System.
    (c) Time limits. (1) There is no time limit on the appointment under 
this section of an employee who:
    (i) Is a preference eligible; or
    (ii) Has completed at least 3 years of service, which did not 
include any break in service longer than 30 days, under one or more 
nontemporary appointments in Panama Canal Commission positions located 
in the United States or in positions under the Canal Zone Merit System 
and/or the Panama Canal Employment System.
    (2) An agency may appoint under this section an employee who does 
not meet the conditions in (c)(1) of this section only if no more than 3 
years have elapsed since the individual's separation from a qualifying 
appointment.
    (d) Tenure on appointment. (1) On appointment under paragraph (a) of 
this section, an individual whose qualifying service does not include 
any break in service of more than 30 days and totals at least 3 years 
becomes a career employee.
    (2) All other individuals appointed under this section become 
career-conditional employees.
    (e) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section automatically acquires a competitive 
status:
    (1) On appointment, if he or she has satisfactorily completed a 1-
year trial period, which did not include more than 22 workdays in nonpay 
status, during qualifying employment with the Panama Canal Commission.
    (2) On satisfactory completion of probation in accordance with Sec.  
315.801(a)(3) if he or she had not completed such a 1-year trial period.

[48 FR 29667, June 28, 1983]



Sec.  315.610  Noncompetitive appointment of certain National Guard technicians.

    (a) An agency may appoint noncompetitively a National Guard 
technician who--
    (1) Was involuntarily separated (other than by removal for cause on 
charges of misconduct or delinquency);
    (2) Has served at least 3 years as a technician;
    (3) Meets the qualifications requirements of the job: and
    (4) Is appointed within 1 year after separating from service as a 
Guard Technician.
    (b) The noncompetitive appointing authority also applies to National 
Guard technicians separated before October 29, 1986, provided they are 
appointed within a year of the date of separation.

[52 FR 5431, Feb. 23, 1987]



Sec.  315.611  Appointment of certain veterans who have competed under agency merit promotion announcements.

    (a) Agency authority. An agency may appoint a preference eligible or 
a veteran who has substantially completed at least 3 years of continuous 
active military service provided
    (1) The veteran was selected from among the best qualified following 
competition under a merit promotion announcement open to candidates 
outside the agency's workforce; and

[[Page 165]]

    (2) The veteran's most recent separation from the military was under 
honorable conditions.
    (b) Definitions. ``Agency'' in this context means an executive 
agency as defined in 5 U.S.C. 105. The agency determines in individual 
cases whether a candidate was released ``shortly before'' completing the 
required 3 years and should therefore be eligible for appointment.

[65 FR 14432, Mar. 17, 2000]



  Subpart G_Conversion to Career or Career-Conditional Employment From 
                        Other Types of Employment



Sec.  315.701  Incumbents of positions brought into the competitive service.

    (a) Employee coverage. This section applies to an employee retained 
under Sec. Sec.  316.701 and 316.702 of this chapter who:
    (1) Was serving in a permanent excepted position under an 
appointment not limited to 1 year or less, or in a public or private 
enterprise in a position which the agency determines to be a continuing 
one, at the time his position was brought into the competitive service; 
and
    (2) Performed 6 months of satisfactory service immediately before 
the date his position was brought into the competitive service, in a 
position or positions brought into the competitive service, or in the 
civilian executive branch of the Government, unless OPM has excepted his 
particular type of case from this requirement.
    (b) Eligibility for conversion. Within the time limits set forth in 
paragraph (c) of this section, the employment of an employee covered by 
paragraph (a) of this section may be converted to career or career-
conditional employment.
    (c) Time limits. Conversion may be initiated under paragraph (b) of 
this section only within 6 months after the position is brought into the 
competitive service, except that:
    (1) When it is necessary for OPM to determine that Sec.  316.701 or 
Sec.  316.702 applies to a group of positions, the recommendation shall 
be submitted within 6 months after OPM advises the agency of its 
determination; and
    (2) When an employee is absent on an assignment to an organization 
or agency from which reemployment rights are provided under part 352 of 
this chapter or by statute, the conversion shall be initiated within 6 
months after the employee's return from such assignment, when 
reemployment occurs within the time limits prescribed in the applicable 
statute or regulation;
    (3) When an employee is absent on approved leave without pay, the 
conversion shall be initiated within 6 months of the employee's return 
to duty, when such return occurs within time limits authorized by the 
agency; and
    (4) When an employee who is serving on military duty or who is 
separated and rehired during the 6-month period after the position is 
brought into the competitive service is eligible for conversion under 
the provisions of Sec.  315.603, the conversion shall be initiated 
within the time limits prescribed by that section.
    (d) Tenure on approval of conversion. Upon conversion under 
paragraph (b) of this section, the employee becomes:
    (1) A career-conditional employee, except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee when he has completed the service requirement 
for career tenure or is excepted from it by Sec.  315.201(c).
    (e) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires a competitive status automatically on completion of probation.
    (f) Review of disapproved conversions. Agencies shall establish 
procedures for reviewing disapprovals of conversions under this section 
when such review is requested within 6 months after the date of the 
disapproval.

[33 FR 12418, Sept. 4, 1968, as amended at 43 FR 34428, Aug. 4, 1978; 66 
FR 66710, Dec. 27, 2001]



Sec.  315.702  Employees serving without competitive examination in rare cases.

    (a) Recommendation by agency. An agency may recommend to OPM that

[[Page 166]]

the employment of an employee who has completed at least 1 year of 
satisfactory service under Sec.  316.601 be converted to career or 
career-conditional employment.
    (b) Tenure on approval of recommendation. When OPM approves the 
agency's recommendation submitted under paragraph (a) of this section, 
the employee becomes:
    (1) A career-conditional employee, except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee when he has completed the service requirement 
for career tenure or is excepted from it by Sec.  315.201(c).
    (c) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires a competitive status automatically on conversion.



Sec.  315.703  Employees formerly reached on a register.

    (a) Employee coverage. An employee who was serving in a position 
when his or her name was within reach for career or career-conditional 
appointment on a register appropriate for that position may be converted 
to career or career-conditional employment when:
    (1) The employee's name was included on an appropriate certificate 
issued while the employee was serving in the position, or reconstruction 
of the appropriate register verifies that the employee would have been 
within reach;
    (2) The register was being used for career and career-conditional 
appointments when he or she was reached;
    (3) He or she has been continuously employed since being reached;
    (4) Conversion is initiated either before the expiration of the 
register or during a period of continuous service since the employee was 
reached; and
    (5) When the employee is a nonpreference eligible who was first 
reached after February 1, 1955, the Office, or the agency, in accordance 
with an agreement with the Office, determines that satisfactory reasons 
existed for passing over any preference eligible who preceded the 
employee on the register when he or she was reached and who is still 
within reach and available for appointment.
    (b) Tenure on conversion. An employee whose appointment is converted 
under paragraph (a) of this section becomes:
    (1) A career-conditional employee except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee when he or she has completed the service 
requirement for career tenure or is excepted from it by Sec.  
315.201(c).
    (c) Acquisition of competitive status. An employee whose employment 
is converted to career or career-conditional employment under this 
section acquires a competitive status automatically on completion of 
probation.

[44 FR 55132, Sept. 25, 1979]



Sec.  315.704  Conversion to career employment from indefinite or temporary employment.

    (a) General. Employees serving after February 7, 1968, in 
competitive positions under indefinite appointments or temporary 
appointments pending establishment of a register or as status quo 
employees acquire competitive status and are entitled to have their 
employment converted to career employment when such employees:
    (1) Complete a total of at least 3 years of service in such a 
position under one or more such appointments without a break in service 
of more than 30 calendar days or without an interruption by 
nonqualifying service of more than 30 calendar days;
    (2) Have rendered satisfactory service for the 12 months immediately 
preceding the conversion; and
    (3) Meet applicable qualification requirements for the positions and 
are otherwise eligible for career employment. This paragraph does not 
apply to employees serving under an overseas limited appointment or in 
positions above GS-15 or equivalent.
    (b) Creditable service. (1) In computing creditable service under 
paragraph (a) of this section for an employee who left a competitive 
position in which he or she was serving under a qualifying appointment 
covered in paragraph (a) of this section to enter the armed forces and 
who is reemployed in such a position within 120 calendar days after 
separation under honorable conditions,

[[Page 167]]

the period from the date he or she left the position to the date of 
reemployment is creditable.
    (2) The Office shall publish in its operating manuals the conditions 
under which full-time, part-time, and intermittent employment is 
creditable in meeting the service requirement under paragraph (a) of 
this section.
    (c) Termination after failure to meet conversion requirements. An 
employing agency shall terminate employees covered by paragraph (a) of 
this section not later than 90 days after they complete the 3-year 
service requirement referred to in paragraph (a)(1) of this section, if 
they have not met the requirements and conditions of paragraphs (a) (2) 
and (3) of this section before the end of the 90-day period. For an 
employee who is reemployed after intervening service in the armed 
forces, the 90-day period begins on the date of reemployment if the 
employee's combined civilian and military service satisfies the 3-year 
service requirement on that date.
    (d) Administrative error. When an employee has met the service 
requirement under paragraph (a)(1) of this section but, because of 
administrative error or oversight, has not been converted to career 
employment within the time limits prescribed in this section, the 
employing agency may effect the employee's conversion as of the date on 
which he or she met the service requirement, even though the time limit 
for such conversion has expired.

[44 FR 54692, Sept. 21, 1979. Redesignated at 44 FR 63080, Nov. 2, 1979, 
as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  315.705  Employees serving under transitional or veterans recruitment appointments.

    (a) Agency action. (1) An agency shall convert the employment of an 
employee who has served continuously under a transitional appointment 
for at least 1 year to career or career-conditional employment within 90 
calendar days after he completes the program of education or training 
approved for him.
    (2) Within 30 calendar days after an employee completes (i) 2 years 
of substantially continuous service under a veterans recruitment 
appointment or under a combination of transitional and veterans 
recruitment appointments and (ii) his training or educational programs, 
the employing agency shall convert his appointment to career or career-
conditional employment.
    (b) Tenure. Upon conversion of his employment, the employee becomes:
    (1) A career-conditional employee, except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee if he has completed the service requirement 
for career tenure or is excepted from it by Sec.  315.201(c).
    (c) Acquisition of competitive status. An employee whose employment 
is converted to career or career-conditional employment under this 
section, acquires a competitive status automatically on conversion.

[35 FR 5661, Apr. 8, 1970. Redesignated at 44 FR 63080, Nov. 2, 1979]



Sec.  315.706  Certain nonpermanent employees of the Department of Energy.

    (a) General. Employees transferred to the Department of Energy under 
Public Law 95-91, who are serving in nonpermanent appointments made 
under competitive procedures of the former Atomic Energy Commission or 
Energy Research and Development Administration and are determined by the 
Department to be performing continuing functions, may be converted to 
career or career-conditional by OPM upon recommendation by the 
Department.
    (b) Tenure upon conversion. Employees converted under this section 
become career-conditional employees unless they have completed the 
service requirement for career tenure.
    (c) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires competitive status automatically.

[43 FR 14002, Apr. 4, 1978. Redesignated at 44 FR 63080, Nov. 2, 1979]



Sec.  315.707  Disabled veterans.

    (a) Eligibility. (1) Subject to requirements concerning 
qualifications and probationary period published by the Office, an 
agency may convert the employment of a disabled veteran who meets the 
conditions below to career or

[[Page 168]]

career-conditional employment from a time-limited appointment of more 
than 60 days.
    (2) To be eligible for conversion under this paragraph, the veteran 
must:
    (i) Have been retired from active military service with a disability 
rating of 30 percent or more;
    (ii) Have been rated by the Veterans Administration within the 
preceding year as having a compensable service-connected disability of 
30 percent or more; or
    (iii) Have had such a rating by the Veterans Administration at the 
time of a qualifying temporary appointment effected within the year 
immediately preceding the conversion.
    (b) Tenure on conversion. (1) Except as provided in paragraph (b)(2) 
of this section, a person converted under paragraph (a) of this section 
becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) of this section becomes a 
career employee if excepted from the service requirement for career 
tenure by Sec.  315.201(c).
    (c) Acquisition of competitive status. A person converted under 
paragraph (a) of this section acquires a competitive status 
automatically on completion of probation.

[44 FR 44813, July 31, 1979. Redesignated at 44 FR 63080, Nov. 2, 1979; 
66 FR 66710, Dec. 27, 2001]



Sec.  315.708  Conversion based on service as a Fellow or Senior Fellow in the Presidential Management Fellows Program.

    (a) Agency authority. (1) An agency, not excepted from the 
competitive service, must appoint a Fellow or Senior Fellow to a full-
time, permanent position in the competitive service without further 
competition when the Fellow or Senior Fellow:
    (i) Has satisfactorily completed the Program as outlined in part 362 
of this chapter; and
    (ii) Meets the citizenship requirement set forth in part 338 of this 
chapter.
    (2) A Fellow or Senior Fellow who was initially appointed to a 
permanent position in an agency excepted from the competitive service 
upon completion of the Program may be appointed subsequently to a full-
time permanent position in the competitive service without further 
competition subject to paragraph (a)(1)(ii) of this section.
    (b) Tenure upon conversion. (1) Except as provided in paragraph 
(b)(2) of this section, a Fellow or Senior Fellow appointed under 
paragraph (a) of this section becomes a career-conditional employee.
    (2) A Fellow or Senior Fellow appointed under paragraph (a) of this 
section becomes a career employee when he/she has completed the service 
requirement for career tenure or is excepted from it under Sec.  
315.201(c).
    (c) Acquisition of Competitive Status. A Fellow or Senior Fellow 
appointed to a full-time, permanent position in the competitive service 
under this section does not serve a probationary period and acquires 
competitive status immediately upon appointment.

[70 FR 28779, May 19, 2005]



Sec.  315.709  Appointment for Persons With Disabilities.

    (a) Coverage. An employee appointed under Sec.  213.3102(u) of this 
chapter may have his or her appointment converted to a career or career-
conditional appointment when he or she:
    (1) Completes 2 or more years of satisfactory service, without a 
break of more than 30 days, under a nontemporary appointment under Sec.  
213.3102(u);
    (2) Is recommended for such conversion by his or her supervisor;
    (3) Meets all requirements and conditions governing career and 
career-conditional appointment except those requirements concerning 
competitive selection from a register and medical qualifications; and
    (4) Is converted without a break in service of one workday.
    (b) Tenure on conversion. An employee converted under paragraph (a) 
of this section becomes:
    (1) A career-conditional employee, except as provided in paragraph 
(b)(2) of this section; or
    (2) A career employee if he or she has completed 3 years of 
substantially continuous service in a temporary appointment under Sec.  
213.3102(u) of this chapter, or has otherwise completed

[[Page 169]]

the service requirement for career tenure, or is excepted from it by 
Sec.  315.201(c).
    (c) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires a competitive status automatically on conversion.

[71 FR 42245, July 26, 2006]



Sec.  315.710  Professional and administrative career employees serving under Schedule B appointments.

    (a) Coverage. This section covers employees serving in occupations 
that were covered by the Professional and Administrative Career 
Examination on August 30, 1982, and that were listed in the consent 
decree entered on November 19, 1981, by the U.S. District Court for the 
District of Columbia in the civil action known as Luevano v. Devine and 
numbered as No. 79-271. Those occupations are designated in these 
regulations as professional and administrative career (PAC) occupations 
or positions. OPM will publish a listing of PAC occupations.
    (b) Eligibility. An agency may, but is not required to, convert 
appointments of employees occupying PAC positions under nontemporary 
appointments effected under Sec.  213.3202(1) of this chapter to career 
or career-conditional appointments at the GS-9 level in any position in 
a PAC occupation when such employees--
    (1) Complete at least 1 year of Schedule B service at the GS-7 level 
that meets the quality of experience requirement for the GS-9 position 
in which converted (less than full-time service is credited according to 
the relation it bears to the full-time workweek);
    (2) Demonstrate performance that warrants conversion at GS-9 (a 
current performance rating of fully successful or better for the year 
immediately preceding conversion is necessary for this purpose);
    (3) Meet all requirements and conditions governing career and 
career-conditional appointment except those requirements concerning 
competitive selection from a register;
    (4) Are converted without a break in service of one workday or more; 
and
    (5) Are converted as a result of a deliberate decision by 
management.
    (c) Tenure on conversion. An employee converted under paragraph (a) 
of this section becomes--
    (1) A career-conditional employee, except as provided in paragraph 
(c)(2) of this section;
    (2) A career employee if he or she has completed 3 years of 
substantially continuous service in nontemporary appointments under 
Sec.  213.3202(l) of this chapter, or has otherwise completed the 
service requirement for career tenure, or is excepted from it by Sec.  
315.201(c).
    (d) Acquisition of competitive status. A person whose employment is 
converted to career or career-conditional employment under this section 
acquires a competitive status automatically on conversion.

[52 FR 25194, July 6, 1987, as amended at 52 FR 43722, Nov. 15, 1987; 66 
FR 66710, Dec. 27, 2001]



Sec.  315.711  Readers, interpreters, and personal assistants serving under Schedule A appointments.

    (a) Agency authority. An agency may convert noncompetitively to 
career or career-conditional employment, a reader, interpreter, or 
personal assistant:
    (1) Who completed at least 1 year of satisfactory service in such a 
position under a non-temporary appointment under 5 CFR 213.3102(11); and
    (2) Whose employment in such a position is no longer necessary for 
reasons beyond management control, e.g. resignation or reassignment of 
the employee being assisted.
    (b) Tenure on appointment. (1) Except as provided in paragraph 
(b)(2) of this section, a person appointed under paragraph (a) of this 
section becomes a career-conditional employee.
    (2) A person appointed under paragraph (a) of this section becomes a 
career employee when he or she has completed the service requirement for 
career tenure or is excepted from it by Sec.  315.201(c).
    (c) Acquisition of competitive status. A person appointed under 
paragraph (a) of this section acquires a competitive status 
automatically on appointment.

[55 FR 12327, Apr. 3, 1990]

[[Page 170]]



Sec.  315.712  Conversion based on service as a Federal Career Intern.

    (a) Agency authority. An agency may convert noncompetitively to 
career or career-conditional employment, a career intern who:
    (1) Has successfully completed a Federal Career Intern Program, 
under Sec.  213.3202(o) of this chapter, at the time of conversion; and
    (2) Meets all citizenship, suitability, and qualification 
requirements.
    (b) Tenure on conversion. An employee whose appointment is converted 
to career or career-conditional employment under paragraph (a) of this 
section becomes:
    (1) A career-conditional employee except as provided in paragraph 
(b)(2) of this section;
    (2) A career employee when he or she has completed the service 
requirement for career tenure or is excepted from it by Sec.  
315.201(c).
    (c) Acquisition of competitive status. An employee whose employment 
is converted to career or career-conditional employment under this 
section acquires competitive status on conversion.

[70 FR 44221, Aug. 2, 2005]



Sec.  315.725  Disqualifications.

    Any law, executive order, or civil service rule or regulation which 
would disqualify an applicant for appointment shall also disqualify an 
employee for conversion of his employment to career or career-
conditional employment under this subpart.

[33 FR 12418, Sept. 4, 1968. Redesignated at 44 FR 63080, Nov. 2, 1979]



   Subpart H_Probation on Initial Appoinment to a Competitive Position



Sec.  315.801  Probationary period; when required.

    (a) The first year of service of an employee who is given a career 
or career-conditional appointment under this part is a probationary 
period when the employee:
    (1) Was appointed from a competitive list of eligibles established 
under subpart C of this part;
    (2) Was reinstated under subpart D of this part unless during any 
period of service which affords a current basis for reinstatement, the 
employee completed a probationary period or served with competitive 
status under an appointment which did not require a probationary period.
    (b) A person who is:
    (1) Transferred under Sec.  315.501; or
    (2) Promoted, demoted, or reassigned; before he completed probation 
is required to complete the probationary period in the new position.
    (c) A person who is reinstated from the Reemployment Priority List 
to a position in the same agency and the same commuting area does not 
have to serve a new probationary period, but, if separated during 
probation, is required to complete the probationary period in the new 
position.
    (d) Upon noncompetitive appointment to the competitive service under 
the Postal Reorganization Act (39 U.S.C. 101 et seq.), an employee of 
the Postal Career Service (including substitute and part-time flexible) 
who has not completed 1 year of Postal service, must serve the remainder 
of a 1-year probationary period in the new agency.
    (e) A person who is appointed to the competitive service either by 
special appointing authority or by conversion under subparts F or G of 
this part serves a 1-year probationary period unless specifically exempt 
from probation by the authority itself.

[33 FR 12418, Sept. 4, 1968, as amended at 39 FR 962, Jan. 4, 1974; 45 
FR 43365, June 27, 1980; 60 FR 54504, Oct. 16, 1995; 65 FR 14432, Mar. 
17, 2000]



Sec.  315.802  Length of probationary period; crediting service.

    (a) The probationary period required by Sec.  315.801 is 1 year and 
may not be extended.
    (b) Prior Federal civilian service (including nonappropriated fund 
service) counts toward completion of probation when the prior service:
    (1) Is in the same agency, e.g., Department of the Army;
    (2) Is in the same line of work (determined by the employee's actual 
duties and responsibilities); and

[[Page 171]]

    (3) Contains or is followed by no more than a single break in 
service that does not exceed 30 calendar days.
    (c) Periods of absence while in a pay status count toward completion 
of probation. Absence in nonpay status while on the rolls (other than 
for compensable injury or military duty) is creditable up to a total of 
22 workdays. Absence (whether on or off the rolls) due to compensable 
injury or military duty is creditable in full upon restoration to 
Federal service. Nonpay time in excess of 22 workdays extends the 
probationary period by an equal amount. An employee serving probation 
who leaves Federal service to become a volunteer with the Peace Corps or 
the Corporation for National and Community Service serves the remainder 
of the probationary period upon reinstatement provided the employee is 
reinstated within 90 days of termination of service as a volunteer or 
training for such service.
    (d) The probationary period for part-time employees is computed on 
the basis of calendar time, in the same manner as for full-time 
employees. For intermittent employees, i.e., those who do not have 
regularly scheduled tours of duty, each day or part of a day in pay 
status counts as 1 day of credit toward the 260 days in a pay status 
required for completion of probation. (However, the probationary period 
cannot be completed in less than 1 year of calendar time.)

[60 FR 53504, Oct. 16, 1995]



Sec.  315.803  Agency action during probationary period (general).

    The agency shall utilize the probationary period as fully as 
possible to determine the fitness of the employee and shall terminate 
his services during this period if he fails to demonstrate fully his 
qualifications for continued employment.



Sec.  315.804  Termination of probationers for unsatisfactory performance or conduct.

    (a) When an agency decides to terminate an employee serving a 
probationary or trial period because his work performance or conduct 
during this period fails to demonstrate his fitness or his 
qualifications for continued employment, it shall terminate his services 
by notifying him in writing as to why he is being separated and the 
effective date of the action. The information in the notice as to why 
the employee is being terminated shall, as a minimum, consist of the 
agency's conclusions as to the inadequacies of his performance or 
conduct.
    (b) Probation ends when the employee completes his or her scheduled 
tour of duty on the day before the anniversary date of the employee's 
appointment. For example, when the last workday is a Friday and the 
anniversary date is the following Monday, the probationer must be 
separated before the end of the tour of duty on Friday since Friday 
would be the last day the employee actually has to demonstrate fitness 
for further employment.

[33 FR 12418, Sept. 4, 1988, as amended at 60 FR 53505, Oct. 16, 1995]



Sec.  315.805  Termination of probationers for conditions arising before appointment.

    When an agency proposes to terminate an employee serving a 
probationary or trial period for reasons based in whole or in part on 
conditions arising before his appointment, the employee is entitled to 
the following:
    (a) Notice of proposed adverse action. The employee is entitled to 
an advance written notice stating the reasons, specifically and in 
detail, for the proposed action.
    (b) Employee's answer. The employee is entitled to a reasonable time 
for filing a written answer to the notice of proposed adverse action and 
for furnishing affidavits in support of his answer. If the employee 
answers, the agency shall consider the answer in reaching its decision.
    (c) Notice of adverse decision. The employee is entitled to be 
notified of the agency's decision at the earliest practicable date. The 
agency shall deliver the decision to the employee at or before the time 
the action will be made effective. The notice shall be in writing, 
inform the employee of the reasons for the action, inform the employee 
of his right of appeal to the Merit Systems Protection Board (MSPB), and 
inform him of the time limit within which the appeal must be submitted 
as provided in Sec.  315.806(d).

[[Page 172]]



Sec.  315.806  Appeal rights to the Merit Systems Protection Board.

    (a) Right of appeal. An employee may appeal to the Merit Systems 
Protection Board in writing an agency's decision to terminate him under 
Sec.  315.804 or Sec.  315.805 only as provided in paragraphs (b) and 
(c) of this section. The Merit Systems Protection Board review is 
confined to the issues stated in paragraphs (b) and (c) of this section.
    (b) On discrimination. An employee may appeal under this paragraph a 
termination not required by statute which he or she alleges was based on 
partisan political reasons or marital status.
    (c) On improper procedure. A probationer whose termination is 
subject to Sec.  315.805 may appeal on the ground that his termination 
was not effected in accordance with the procedural requirements of that 
section.
    (d) An employee may apeal to the Board under this section a 
termination which the employee alleges was based on discrimination 
because of race, color, religion, sex, or national origin; or age 
(provided that at the time of the alleged discriminatory action the 
employee was at least 40 years of age); or handicapping condition if the 
individual meets the definition of ``handicapped person'' as set forth 
in regulations of the Equal Employment Opportunity Commission at 29 CFR 
1613.702(a). An appeal alleging a discriminatory termination may be 
filed under this subsection only if such discrimination is raised in 
addition to one of the issues stated in paragraph (b) or (c) of this 
section.

[33 FR 12418, Sept. 4, 1968, as amended at 40 FR 15380, Apr. 7, 1975; 44 
FR 48951, Aug. 21, 1979; 55 FR 29339, July 19, 1990]



     Subpart I_Probation on Initial Appointment to a Supervisory or 
                           Managerial Position

    Source: 44 FR 44811, July 31, 1979, unless otherwise noted.



Sec.  315.901  Statutory requirement.

    5 U.S.C. 3321 provides for ``a period of probation . . . before 
initial appointment as a supervisor or manager becomes final.'' It also 
says that a supervisor or manager ``who does not satisfactorily complete 
the probationary period . . . shall be returned to a position of no 
lower grade and pay than the position from which the individual was 
transferred, assigned or promoted.'' This subpart contains OPM 
regulations implementing those requirements of law.



Sec.  315.902  Definitions.

    In this subpart supervisory position and managerial position have 
the meaning given them by the General Schedule Supervisory Guide.

[60 FR 53505, Oct. 16, 1995]



Sec.  315.903  Coverage.

    This subpart applies to appointments and positions without time 
limitation in the competitive civil service. Agencies may, at their 
option, apply these provisions to time-limited appointments and 
positions. This subpart does not apply to appointments or positions in 
the Senior Executive Service.



Sec.  315.904  Basic requirement.

    (a) An employee is required to serve a probationary period 
prescribed by the agency upon initial appointment to a supervisory and/
or managerial position.
    (b) An employee is required to complete a single probationary period 
in a supervisory position and a single probationary period in a 
managerial position, regardless of the number of agencies, occupations, 
or positions in which the employee serves. However, an agency may by 
regulation provide for exceptions to the probationary period for 
managers who have satisfactorily completed a probationary period for 
supervisors when justified on the basis of performance and experience.
    (c) Employees who, as of the date this requirement is effective, are 
serving or have served in Federal civilian supervisory or managerial 
positions without time limitation, or in time-limited supervisory or 
managerial positions under an official assignment exceeding 120 days, 
are exempt from its provisions, except that supervisors who are assigned 
to managerial positions may, according to agency regulations, be 
required to serve a probationary period for managers.

[[Page 173]]



Sec.  315.905  Length of the probationary period.

    The authority to determine the length of the probationary period is 
delegated to the head of each agency, provided that it be of reasonable 
fixed duration, appropriate to the position, and uniformly applied. An 
agency may establish different probationary periods for different 
occupations or a single one for all agency employees.



Sec.  315.906  Crediting service toward completion of the probationary period.

    (a) An employee who is reassigned, transferred, or promoted to 
another supervisory or managerial position while serving a probationary 
period under this subpart is subject to the probationary period 
prescribed for the new position. Service in the former position counts 
toward completion of the probationary period in the new position. If the 
former position was supervisory and the new position managerial, service 
counts in the manner prescribed by agency regulation.
    (b) Service on detail, temporary promotion, or reassignment to 
another supervisory or managerial position while serving probation is 
creditable toward completion of probation. Service in a nonsupervisory 
or nonmanagerial position is not creditable.
    (c) Absence in nonpay status while on the rolls (other than for 
compensable injury or military duty) is creditable up to a total of 22 
workdays. Absence (whether on or off the rolls) due to compensable 
injury or military duty is creditable in full upon restoration to 
Federal service. Nonpay time in excess of 22 workdays extends the 
probationary period by an equal amount.
    (d) Service during a probationary period from which an employee was 
separated or demoted for performance or conduct reasons does not count 
toward completion of probation required under a subsequent appointment. 
In other situations in which an employee does not complete probation, 
service is creditable as determined by agency policy.
    (e) Temporary service in a supervisory or managerial position under 
temporary appointment, promotion, or reassignment prior to probation is 
creditable as determined by agency policy. Prior service under a detail 
may be credited only when a detail to a supervisory or managerial 
position is made permanent without a break in service.

[44 FR 44811, July 31, 1979, as amended at 60 FR 53505, Oct. 16, 1995]



Sec.  315.907  Failure to complete the probationary period.

    (a) Satisfactory completion of the prescribed probationary period is 
a prerequisite to continued service in the position. An employee who, 
for reasons of supervisory or managerial performance, does not 
satisfactorily complete the probationary period is entitled to be 
assigned, except as provided in paragraph (b) of this section, to a 
position in the agency of no lower grade and pay than the one the 
employee left to accept the supervisory or managerial position.
    (b) A nonsupervisory or nonmanagerial employee who is demoted into a 
position in which probation under Sec.  315.904 is required and who, for 
reasons of supervisory or managerial performance, does not 
satisfactorily complete the probationary period is entitled to be 
assigned to a position at the same grade and pay as the position in 
which he or she was serving probation. The employee is eligible for 
repromotion in accordance with agency promotion policy.
    (c) The agency must notify the employee in writing that he or she is 
being assigned in accordance with this section.

[49 FR 39287, Oct. 5, 1984, as amended at 60 FR 53505, Oct. 16, 1995]



Sec.  315.908  Appeals.

    (a) An employee who, in accordance with the provisions of this 
subpart, is assigned to a nonmanagerial or nonsupervisory position, has 
no appeal right.
    (b) An employee who alleges that an agency action under this subpart 
was based on partisan political affiliation or marital status, may 
appeal to the Merit Systems Protection Board.

[[Page 174]]



Sec.  315.909  Relationship to other actions.

    (a) If an employee is required to concurrently serve both a 
probationary period under this subpart and a probationary period under 
subpart H of this part, the latter takes precedence and completion of 
the probationary period for competitive appointment and fulfills the 
requirements of this subpart.
    (b) An action which demotes an employee to a lower grade than the 
one the employee left to accept the supervisory or managerial position, 
and an action against an employee for reasons other than supervisory or 
managerial performance, is governed by part 432 or part 752 procedures, 
whichever is applicable. If the employee believes an action under this 
subpart was based on improper discrimination or other prohibited 
practices under 5 U.S.C. 2302, he or she may appeal to the Merit Systems 
Protection Board or the Equal Employment Opportunity Commission, as 
appropriate.



PART 316_TEMPORARY AND TERM EMPLOYMENT--Table of Contents




Subparts A-B [Reserved]

                        Subpart C_Term Employment

Sec.
316.301 Purpose and duration.
316.302 Selection of term employees.
316.303 Tenure of term employees.
316.304 Trial period.

                 Subpart D_Temporary Limited Employment

316.401 Purpose and duration.
316.402 Procedures for making temporary appointments.
316.403 Designation of provisional appointments.

Subpart E [Reserved]

   Subpart F_Appointment Without Competitive Examination in Rare Cases

316.601 Appointment without competitive examination in rare cases.

    Subpart G_Retention of Incumbents of Positions Brought Into the 
                           Competitive Service

316.701 Public or private enterprise taken over by Government.
316.702 Excepted positions brought into the competitive service.
316.703 Effect on tenure of position change of status quo employees.

Subpart H [Reserved]

    Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., 
p. 218.

    Source: 33 FR 12423, Sept. 4, 1968, unless otherwise noted.

Subparts A-B [Reserved]



                        Subpart C_Term Employment

    Editorial Note: Nomenclature changes to subpart C of part 316 appear 
at 70 FR 72067, Dec. 1, 2005.



Sec.  316.301  Purpose and duration.

    (a) An agency may make a term appointment for a period of more than 
1 year but not more than 4 years to positions where the need for an 
employee's services is not permanent. Reasons for making a term 
appointment include, but are not limited to: project work, extraordinary 
workload, scheduled abolishment, reorganization, contracting out of the 
function, uncertainty of future funding, or the need to maintain 
permanent positions for placement of employees who would otherwise be 
displaced from other parts of the organization. Agencies may extend 
appointments made for more than 1 year but less than 4 years up to the 
4-year limit in increments determined by the agency. The vacancy 
announcement should state that the agency has the option of extending a 
term appointment up to the 4-year limit.
    (b) OPM may authorize exceptions beyond the 4-year limit when the 
extension is clearly justified and is consistent with applicable 
statutory provisions. Requests to make and/or extend appointments beyond 
the 4-year limit must be initiated by the employing office and sent to 
the appropriate OPM service center.

[63 FR 63783, Nov. 17, 1998]



Sec.  316.302  Selection of term employees.

    (a) Competitive term appointment. An agency may make a term 
appointment under part 332 of this chapter, by using competitive 
procedures, or under part

[[Page 175]]

337 of this chapter, by using direct-hire procedures, as appropriate.
    (b) Noncompetitive term appointment. An agency may give a 
noncompetitive term appointment, without regard to the requirements of 
parts 332 and 333 of this chapter, to an individual who is qualified for 
the position and who is eligible for:
    (1) Reinstatement under Sec.  315.401 of this chapter;
    (2) Veterans recruitment appointment (VRA) under Sec.  307.103 of 
this chapter. Term appointments under this section are permitted only at 
the grade levels authorized for VRA appointments. Such appointments are 
competitive service appointments not excepted VRA appointments and do 
not lead to conversion to career-conditional appointment;
    (3) Career or career-conditional appointment under Sec. Sec.  
315.601, 315.604, 315.605, 315.606, 315.607, 315.608, 315.609, 315.703, 
or 315.711 of this chapter;
    (4) Appointment under 5 U.S.C. 3112 (veterans with compensable 
service-connected disability of 30% or more). The disability must be 
documented by a notice of retirement of discharge due to service-
connected disability from active military service dated at any time, or 
by a notice of compensable disability rating from the Department of 
Veterans Affairs, dated within the last 12 months;
    (5) Appointment under 31 U.S.C. 732(g) for current and former 
employees of the General Accounting Office;
    (6) Appointment under 28 U.S.C. 602 for current and former employees 
of the Administrative Office of the U.S. Courts;
    (7) Reappointment on the basis of having left a term appointment 
prior to serving the 4-year maximum amount of time allowed under the 
appointment. Reappointment must be to a position in the same agency 
appropriate for filling under term appointment and for which the 
individual qualifies. Combined service under the original term 
appointment and reappointment must not exceed the 4-year limit; or
    (8) Conversion in the same agency from a current temporary 
appointment when the employee is or was within reach on a certificate of 
eligibles for term appointment at any time during service in the 
temporary position. Within reach means that the person could have been 
selected for the position under competitive hiring procedures, including 
veterans' preference. The certificate must have been actually used for 
term appointment. The person must have been continuously employed in the 
position from the date found within reach to the date converted to a 
term appointment.
    (c) Term employees are eligible for an extension of their 
appointment in accordance with the time limits in Sec.  316.301 even if 
their eligibility for noncompetitive appointment expires or is lost 
during the period they are serving under term employment.

[63 FR 63783, Nov. 17, 1998, as amended at 68 FR 35268, June 13, 2003; 
69 FR 33275, June 15, 2004]



Sec.  316.303  Tenure of term employees.

    (a) A term employee does not acquire a competitive status on the 
basis of his term appointment.
    (b) The employment of a term employee ends automatically on the 
expiration of his term appointment unless he has been separated earlier 
in accordance with this chapter.



Sec.  316.304  Trial period.

    (a) The first year of service of a term employee is a trial period 
regardless of the method of appointment. Prior Federal civilian service 
is credited toward completion of the required trial period in the same 
manner as prescribed by Sec.  315.802 of this chapter.
    (b) The agency may terminate a term employee at any time during the 
trial period. The employee is entitled to the procedures set forth in 
Sec.  315.804 or Sec.  315.805 of this chapter as appropriate.

[33 FR 12423, Sept. 4, 1968, as amended at 63 FR 63783, Nov. 17, 1998]



                 Subpart D_Temporary Limited Employment

    Editorial Note: Nomenclature changes to subpart D of part 316 appear 
at 70 FR 72067, Dec. 1, 2005.

[[Page 176]]



Sec.  316.401  Purpose and duration.

    (a) Appropriate use. An agency may make a temporary limited 
appointment--
    (1) To fill a short-term position (i.e., one that is not expected to 
last longer than 1 year);
    (2) To meet an employment need that is scheduled to be terminated 
within the timeframe set out in paragraph (c) of this section for such 
reasons as abolishment, reorganization, or contracting of the function, 
anticipated reduction in funding, or completion of a specific project or 
peak workload; or
    (3) To fill positions on a temporary basis when the positions are 
expected to be needed for placement of permanent employees who would 
otherwise be displaced from other parts of the organization.
    (b) Certification of appropriate use. The supervisor of each 
position filled by temporary appointment must certify that the 
employment need is truly temporary and that the proposed appointment 
meets the regulatory time limits. This certification may constitute 
appropriate documentation of compliance with the limits set out in 
paragraph (c) of this section. The reason(s) for making a temporary 
limited appointment must be stated on the form documenting each such 
appointment.
    (c) Time limits--general. (1) An agency may make a temporary 
appointment for a specified period not to exceed 1 year. The appointment 
may be extended up to a maximum of 1 additional year (24 months of total 
service). Appointment to a successor position (i.e., to a position that 
replaces and absorbs the position to which an individual was originally 
appointed) is considered to be an extension of the original appointment. 
Appointment to a position involving the same basic duties and in the 
same major subdivision of the agency and same local commuting area as 
the original appointment is also considered to be an extension of the 
original appointment.
    (2) An agency may not fill a position by temporary appointment if 
that position has previously been filled by temporary appointment(s) for 
an aggregate of 2 years, or 24 months, within the preceding 3-year 
period.
    (d) Exceptions to general time limits. (1) Agencies may make and 
extend temporary appointments to positions involving intermittent or 
seasonal work without regard to the requirements in paragraph (c) of 
this section, provided that:
    (i) Appointments and extensions are made in increments of 1 year or 
less.
    (ii) Employment in the same or a successor position under this and 
any other appointing authority totals less than 6 months (1,040 hours), 
excluding overtime, in a service year. The service year is the calendar 
year that begins on the date of the employee's initial appointment in 
the agency. Should employment in a position filled under this exception 
total 6 months or more in any service year, the provisions of paragraph 
(c) of this section will apply to subsequent extension or reappointment 
unless OPM approves continued exception under this section. An 
individual may be employed for training for up to 120 days following 
initial appointment and up to 2 weeks a year thereafter without regard 
to the service year limitation.
    (2) OPM will authorize exceptions to the limits set out in paragraph 
(c) of this section only when necessitated by major reorganizations or 
base closings or other unusual circumstances. Requests based on major 
reorganization, base closing, restructuring, or other unusual 
circumstances that apply agencywide must be made by an official at the 
headquarters level of the Department or agency. Requests involving 
extension of appointments to a specific position or project based on 
other unusual circumstances may be submitted by the employing office to 
the appropriate OPM service center.

[59 FR 46898, Sept. 13, 1994]



Sec.  316.402  Procedures for making temporary appointments.

    (a) Competitive temporary appointments. In accordance with the time 
limits in Sec.  316.401, an agency may make a temporary appointment 
under part 332 of this chapter, by using competitive procedures, or 
under part 337 of this chapter, by using direct-hire procedures, as 
appropriate.

[[Page 177]]

    (b) Noncompetitive temporary appointments. In accordance with the 
time limits in Sec.  316.401, an agency may give a noncompetitive 
temporary appointment, without regard to the requirements of parts 332 
and 333 of this chapter, to an individual who is qualified for the 
position and who is eligible for:
    (1) Reinstatement under Sec.  315.401 of this chapter;
    (2) Veterans recruitment appointment under Sec.  307.103 of this 
chapter. Temporary limited appointments under this section are permitted 
only at the grade levels authorized for VRA appointments. Such 
appointments are not VRA appointments and do not lead to conversion to 
career-conditional appointment;
    (3) Career-conditional appointment under Sec. Sec.  315.601, 
315.604, 315.605, 315.606, 315.607, 315.608, 315.609, or 315.711 of this 
chapter;
    (4) Appointment under 5 U.S.C. 3112 (veterans with compensable 
service-connected disability of 30% or more). The disability must be 
documented by a notice of retirement of discharge due to service-
connected disability from active military service dated at any time, or 
by a notice of compensable disability rating from the Department of 
Veterans Affairs, dated within the last 12 months;
    (5) Appointment under 31 U.S.C. 732(g) for current and former 
employees of the General Accounting Office;
    (6) Appointment under 28 U.S.C. 602 for current and former employees 
of the Administrative Office of the U.S. Courts;
    (7) Reappointment on the basis of being a former temporary employee 
of the agency who was originally appointed from a certificate of 
eligibles or under the provisions of part 333 of this chapter. An agency 
may not reappoint a former temporary employee if the individual has 
already served the maximum time allowed in Sec.  316.401 or if the 
position has been filled under temporary appointment for the maximum 
time allowed in Sec.  316.401. Reappointment must be to the same 
position or another position appropriate for temporary appointment with 
the same qualification requirements;
    (8) Reappointment on the basis of being a former temporary employee 
who was originally appointed from a certificate of eligibles or under 
the provisions of part 333 of this chapter and who sustained a 
compensable injury while serving on the temporary appointment. 
Reappointment must be to the same position or another position 
appropriate for temporary appointment with the same qualification 
requirements. If the compensable injury disqualifies the former 
individual from performing such a position, reappointment may be to any 
position for which the individual is qualified. Reappointment must be 
for a minimum of 120 days.
    (c) Extension of temporary appointments. An individual who receives 
a valid temporary appointment will be eligible for an extension in 
accordance with Sec.  316.401 even if his or her eligibility for 
noncompetitive appointment expires or is lost during the authorized 
period of temporary employment.

[63 FR 63784, Nov. 17, 1998, as amended at 68 FR 35268, June 13, 2003; 
69 FR 33275, June 15, 2004]



Sec.  316.403  Designation of provisional appointments.

    (a) Conditions for designation. An agency may designate a temporary 
appointment as a provisional appointment only when all of the following 
conditions are met:
    (1) The appointment is made to fill a continuing position by a 
provisional appointment leading to permanent appointment when the 
position must be filled more quickly than would be possible under the 
procedures required for nontemporary appointment or when such a 
provisional appointment is a requirement of the applicable authority;
    (2) The agency must have current budgetary and appointing authority 
for the nontemporary appointment (assuming satisfactory completion of 
the required procedures); and
    (3) The agency must have a specific intention to convert the 
appointee to a nontemporary appointment under appropriate authority 
before the expiration of the temporary appointment, must state this 
intention in any written offer of employment and document this intention 
as part of the permanent

[[Page 178]]

record of the initial appointment in accordance with instructions issued 
by OPM.
    (b) Authority for provisional appointments. Provisional appointments 
must be made under an authority established by law, Executive order, or 
regulation or granted by OPM. Appointments which may be treated as 
provisional appointments under this paragraph may be made under any 
appropriate authority, including, but not limited to:
    (1) Noncompetitive temporary appointments of disabled veterans under 
Sec.  316.402(b)(5), when the appointments are intended to afford 
eligibility for conversion in accordance with Sec.  315.707 of this 
chapter and section 3112 of title 5, United States Code;
    (2) Temporary appointments of nurses in the Department of Veterans 
Affairs, when the appointments are made under the provisions of section 
4114 of title 38, United States Code, with the intention of converting 
the appointees to continuing appointments as soon as the appointees 
obtain required State certification or registration and/or the agency 
completes necessary verification of references;
    (3) Temporary transitional Schedule C appointments made under Sec.  
213.3302 of this chapter, when the appointees are to be converted to 
nontemporary Schedule C appointments upon OPM approval and completion of 
necessary clearances.
    (4) Senior Executive Service limited term and limited emergency 
appointments made under Sec.  317.601 of this chapter, when the 
appointees are to be converted to nontemporary appointments in the 
Senior Executive Service or to nontemporary Presidential appointments, 
upon further action, such as OPM approval, White House clearance, and/or 
confirmation by the Senate; and
    (5) Temporary appointments of severely physically handicapped 
individuals, when such appointments are required to demonstrate 
qualifications for nontemporary appointment under Sec.  213.3102(u) of 
this chapter, and when the appointees will be converted to such 
nontemporary appointment upon successful performance in the trial 
position.

[56 FR 10142, Mar. 11, 1991, as amended at 60 FR 35120, July 6, 1995; 63 
FR 63784, Nov. 17, 1998; 66 FR 66710, Dec. 27, 2001]

Subpart E [Reserved]



   Subpart F_Appointment Without Competitive Examination in Rare Cases



Sec.  316.601  Appointment without competitive examination in rare cases.

    (a) An agency may make an appointment without competitive 
examination when:
    (1) The duties and compensation of the position are such, or 
qualified persons are so rare, that in the interest of good civil 
service administration the position cannot be filled through open 
competitive examination;
    (2) The person to be appointed meets all applicable qualification 
requirements for the position; and
    (3) The appointment is specifically authorized by the Office or is 
made under an agreement between the agency and the Office providing for 
such appointments.
    (b) A person appointed under paragraph (a) of this section does not 
acquire a competitive status on the basis of that appointment.
    (c) When a position filled under paragraph (a) of this section 
becomes vacant, the agency may fill the vacancy by another appointment 
under paragraph (a) of this section only if the conditions of paragraph 
(a)(3) of this section are again met.

[44 FR 55132, Sept. 25, 1979]



    Subpart G_Retention of Incumbents of Positions Brought Into the 
                           Competitive Service



Sec.  316.701  Public or private enterprise taken over by Government.

    (a) When the Office, or an agency acting under an agreement with the 
Office, finds that the Federal Government has taken over a public or 
private enterprise, or an identifiable unit thereof, and that a position 
has thereby been brought into the competitive

[[Page 179]]

service, the agency may retain the incumbent of the position.
    (b)(1) When an agency retains an employee under paragraph (a) of 
this section in a position which it determines to be a continuing one, 
the agency gives the employee a status quo appointment and shall decide 
on a timely basis whether it will convert that individual's employment 
to career or career-conditional under Sec.  315.701 of this chapter.
    (2) When an agency decides not to effect conversion under Sec.  
315.701 of this chapter, or the employee fails to qualify for 
conversion, the agency, in its discretion, may retain the employee as a 
status quo employee.
    (c) An agency may retain an employee under paragraph (a) of this 
section in a position that it determines is noncontinuing under a 
temporary appointment. That appointment may be made for a period not to 
exceed 1 year and will be subject to the time limits set out in Sec.  
316.402.

[44 FR 55133, Sept. 25, 1979, as amended at 60 FR 39101, Aug. 1, 1995; 
63 FR 63784, Nov. 17, 1998]



Sec.  316.702  Excepted positions brought into the competitive service.

    (a) When the Office, or an agency acting under an agreement with the 
Office, finds that an excepted position has been brought into the 
competitive service by statute, Executive order, or the revocation of an 
exception under Civil Service Rule VI (Sec.  6.6 of this chapter), or is 
otherwise made subject to competitive examination, the agency may retain 
the incumbent of the position.
    (b)(1) When an agency retains an employee under paragraph (a) of 
this section who was serving in an excepted position under an indefinite 
appointment or an appointment without time limit, the agency gives the 
employee a status quo appointment and may convert that employee's 
appointment to career or career-conditional under Sec.  315.701 of this 
chapter.
    (2) When the agency decides not to effect conversion under Sec.  
315.701 of this chapter, or the employee fails to qualify for 
conversion, the agency, in its discretion, may retain the employee as a 
status quo employee.
    (c) An employee who was serving under an excepted appointment 
limited to 1 year or less may be retained as a temporary employee under 
paragraph (a) of this section until the scheduled expiration date of the 
employee's excepted appointment. Extension of the employee's temporary 
appointment beyond that date will be subject to the provisions of Sec.  
316.402.
    (d) An employee who was serving under an excepted appointment with a 
definite time limit longer than 1 year may be retained under a term 
appointment. The term appointment is subject to all conditions and time 
limits applicable to term appointments. Service under excepted 
appointment does not count against the maximum time limit for term 
appointment in the competitive service.

[44 FR 55133, Sept. 25, 1979, as amended at 60 FR 39101, Aug. 1, 1995; 
63 FR 63784, Nov. 17, 1998]



Sec.  316.703  Effect on tenure of position change of status quo employees.

    (a) A status quo employee who is promoted, demoted, or reassigned 
becomes:
    (1) An indefinite employee when the position change occurs while he 
is not serving overseas; or
    (2) An overseas limited employee when the position change occurs 
while he is serving overseas.
    (b) An employee referred to in paragraph (a) of this section who is 
changed back to his status quo position becomes a status quo employee.

Subpart H [Reserved]



PART 317_EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE--Table of Contents




Subpart A [Reserved]

                      Subpart B_General Provisions

Sec.
317.201 Regulatory requirements.

          Subpart C_Conversion to the Senior Executive Service

317.301 Conversion coverage.
317.302 Conversion procedures.

[[Page 180]]

317.303 Status of employees who decline voluntary conversion to the 
          Senior Executive Service.
317.304 Conversion of career and career-type appointees.
317.305 Conversion of excepted appointees.
317.306 Conversion of employees under time limited appointments.

                   Subpart D_Qualifications Standards

317.401 General.
317.402 Career reserved positions.
317.403 General positions.
317.404 Retention of qualifications standards.

                      Subpart E_Career Appointments

317.501 Recruitment and selection for initial SES career appointment be 
          achieved from the brightest and most diverse pool possible.
317.502 Qualifications Review Board certification.
317.503 Probationary period.
317.504 [Reserved]

              Subpart F_Noncareer and Limited Appointments

317.601 Authorization.
317.602 Conditions of a limited appointment.
317.603 Selection.
317.604 Reassignment.
317.605 Tenure of appointees.

            Subpart G_SES Career Appointment by Reinstatement

317.701 Agency authority.
317.702 General reinstatement: SES career appointees.
317.703 Guaranteed reinstatement: Presidential appointees.

                  Subpart H_Retention of SES Provisions

317.801 Retention of SES provisions.

             Subpart I_Reassignments, Transfers, and Details

317.901 Reassignments.
317.902 Transfers.
317.903 Details.
317.904 Change in type of SES appointment.

                       Subpart J_Corrective Action

317.1001 OPM authority for corrective action.

    Authority: 5 U.S.C. 3392, 3393, 3395, 3397,3592, 3593, 3595, 3596, 
8414, and 8421.

Subpart A [Reserved]



                      Subpart B_General Provisions



Sec.  317.201  Regulatory requirements.

    This part contains the regulations of the Office of Personnel 
Management which implement the following provisions of law:
    (a) Section 413 of title IV of the Civil Service Reform Act of 1978;
    (b) Subchapter VIII of chapter 33 of title 5, U.S.C. on appointment, 
reassignment, and transfer in the Senior Executive Service; and
    (c) Subchapter V of chapter 35 of title 5, U.S.C. on reinstatement 
to the Senior Executive Service.

[45 FR 8541, Feb. 8, 1980]



          Subpart C_Conversion to the Senior Executive Service

    Source: 45 FR 8541, Feb. 8, 1980, unless otherwise noted.



Sec.  317.301  Conversion coverage.

    (a) When applicable. These conversion provisions apply in the 
following circumstances.
    (1) The implementation of the Senior Executive Service effective on 
July 13, 1979, and the initial conversions thereto.
    (2) The implementation of the Senior Executive Service in an agency 
following the revocation of that agency's Presidential exclusion under 5 
U.S.C. 3132(e). The Office of Personnel Management shall determine the 
date on which conversions under this authority shall become effective. 
Generally, this will be no later than six months following the effective 
date of the revocation of the Presidential exclusion.
    (3) The implementation of the Senior Executive Service in a formerly 
excluded agency following statutory action extending coverage under 5 
U.S.C. 3132(a)(1) to that agency. Except as otherwise provided by law, 
the Office of Personnel Management shall determine the date on which 
conversions under this authority shall become effective. Generally, this 
will be no later than six months following the effective date of the 
statutory action extending coverage under 5 U.S.C. 3132(a)(1).
    (4) The implementation of the SES in a formerly excluded agency when 
OPM

[[Page 181]]

determines that the agency is an ``Executive agency'' under 5 U.S.C. 
3132(a)(1).
    (5) The exercise of a reemployment right by an individual who at the 
time of his/her former agency's implementation of the Senior Executive 
Service was under a reemployment agreement to a position in that agency 
which meets the grade level and functional criteria for inclusion under 
the Senior Executive Service. The effective date of a conversion under 
this authority is prescribed by Sec.  317.302(d)(5).
    (b) Employees covered. This subpart covers:
    (1) An employee serving in a position at the time it is designated a 
Senior Executive Service position;
    (2) An individual appointed or reinstated to a position after it has 
been designated a Senior Executive Service position;
    (3) An employee transferred, promoted, voluntarily reassigned or 
voluntarily demoted to a position after it has been designated a Senior 
Executive Service position;
    (4) An employee involuntarily reassigned or involuntarily demoted to 
a position after it has been designated a Senior Executive Service 
position; and
    (5) An employee serving in a position which meets the grade level 
but not the functional criteria for designation as a Senior Executive 
Service position.
    (6) An employee appointed in his/her former agency under a 
reemployment right provided, however, that the employee was under a 
reemployment agreement at the time the Senior Executive Service was 
implemented in his/her former agency and that the reemployment right was 
to a position which meets the grade level and functional criteria for 
inclusion under the Senior Executive Service.
    (c) Employees excluded. The following employees are excluded from 
coverage of this subpart and are not entitled to conversion to the 
Senior Executive Service.
    (1) An employee in a position designated as Senior Executive Service 
who is serving under a time limited appointment which will terminate 
before the operational date of the Senior Executive Service.
    (2) An employee serving under a temporary promotion, detail, or 
temporary assignment in a position designated as Senior Executive 
Service unless the position which the employee encumbered on a permanent 
basis just prior to the current temporary action has been designated as 
Senior Executive Service.

[45 FR 8541, Feb. 8, 1980, as amended at 60 FR 6385, Feb. 2, 1995]



Sec.  317.302  Conversion procedures.

    (a) Employees appointed prior to designation; employees 
involuntarily reassigned or demoted after designation--(1) Notice. Each 
employee covered by this subpart who was appointed prior to the 
designation of his/her position as a Senior Executive Service position, 
or who was involuntarily reassigned or involuntarily demoted to a 
position after it was designated a Senior Executive Service position, 
shall be given a written notice which includes the following 
information:
    (i) A statement that the employee's position has been designated as 
either ``general'' or ``career reserved'';
    (ii) A statement that the employee is being offered an appointment 
under the Senior Executive Service or that the employee is not being 
offered an appointment under the Senior Executive Service but will be 
separated from the civil service pursuant to Sec.  317.305(b)(4) or 
Sec.  317.306(b)(4); If the employee is offered conversion, the notice 
shall also include:
    (iii) A statement that the employee has 90 calendar days from the 
date of receipt of the written notice to elect either to join the Senior 
Executive Service or to remain in his/her current appointment system;
    (iv) Identification of the position, SES pay rate, and kind of 
appointment which the employee will receive if the employee elects to 
convert to the Senior Executive Service;
    (v) For excepted appointees who have reinstatement eligibility to a 
position in the competitive service, or, as determined by the Office of 
Personnel Management, have substantial career-oriented service under 
career-type appointments as defined in Sec.  317.304(a)(2), a statement 
that the employee may request conversion to career appointment;

[[Page 182]]

    (vi) For employees under limited executive assignment who have 
reinstatement eligibility to a position in the competitive service, or 
as determined by the Office of Personnel Management, have substantial 
career-oriented service under career-type appointments as defined in 
Sec.  317.304(a)(2), and who are covered under Sec.  317.306(b)(3), a 
statement that the employee may request conversion to career 
appointment;
    (vii) A summary of the features of the Senior Executive Service 
(this can be accomplished by appending descriptive material prepared by 
the Office);
    (viii) A statement that the employee must submit his/her decision 
with regard to paragraphs (a)(1)(iii), (v) and (vi) of this section, in 
writing, on or before the end of the notice period; and
    (ix) A statement of the right of an employee who is aggrieved to 
appeal an action under this subpart to the Merit Systems Protection 
Board.

An employee whose involuntary reassignment or involuntary demotion to a 
designated position occurs less than 90 days before the operational date 
of the Senior Executive Service, shall be given this notice at the time 
of the personnel action. The employee shall have 90 calendar days from 
the date of receipt of the notice to make an election on conversion.
    (2) Pay. Upon conversion to the Senior Executive Service, an 
employee's SES rate will be determined under 5 CFR part 534, subpart D.
    (3) Freedom of choice. The employee shall decide whether he/she 
accepts conversion to the Senior Executive Service. The employing agency 
shall not attempt to influence the employee's decision through coercion, 
intimidation or duress.
    (4) Employee's election. On or before the end of the notice period, 
the employee shall signify in writing his/her decision to accept or to 
decline an appointment under the Senior Executive Service. An excepted 
or limited assignment employee covered under Sec.  317.305(b)(3) or 
Sec.  317.306(b)(3), respectively, shall also indicate whether he/she 
requests conversion to career appointment. Failure to respond shall be 
deemed a declination.
    (b) Employees receiving appointments after designation but before 
the operational date of the Senior Executive Service--(1) Condition of 
appointment. Each individual appointed, reinstated, transferred, 
promoted, voluntarily reassigned or voluntarily demoted to a position 
after it has been designated a Senior Executive Service position shall 
be required to accept conversion to the Senior Executive Service. The 
agency shall advise the individual of this requirement prior to the 
appointment or other personnel action. The individual shall signify his/
her acceptance of conversion in writing at the time of the personnel 
action.
    (2) Notice. At the time of the personnel action, or 90 days before 
the Senior Executive Service becomes operational, whichever is later, 
the agency shall give the employee a written notice which identifies the 
position, SES pay rate, and kind of appointment the employee will 
receive under the Senior Executive Service.
    (3) Pay. An employee's SES rate will be determined under 5 CFR part 
534, subpart D.
    (c) Employees whose positions are not designated Senior Executive 
Service positions--Notice. Each employee covered by Sec.  317.301(b)(5) 
shall be given a written notice advising the employee that his/her 
position is not designated a Senior Executive Service position; that the 
employee is not entitled to conversion to the Senior Executive Service; 
and that the employee has a right to appeal an action under this subpart 
to the Merit Systems Protection Board.
    (d) Employees appointed under a reemployment right--(1) Notice. At 
the time the employee exercises his/her reemployment right, the agency 
shall give the employee a written notice which includes the following 
information:
    (i) A statement that the employee meets the requirements of Sec.  
317.301(b)(6) for eligibility for conversion to the Senior Executive 
Service and that he/she is being offered an appointment under the Senior 
Executive Service;
    (ii) A statement that the employee has 90 calendar days from the 
date of receipt of the written notice to elect either to join the Senior 
Executive Service or to remain under the type of

[[Page 183]]

appointment upon which the reemployment right was based;
    (iii) Identification of the position, SES pay rate, and kind of 
appointment which the employee will receive if the employee elects to 
convert to the Senior Executive Service;
    (iv) If the reemployment right is to a position in the excepted 
service and the employee has reinstatement eligibility to a position in 
the competitive service, or, as determined by the Office of Personnel 
Management, has substantial career-oriented service under career-type 
appointments as defined in Sec.  317.304(a)(2), a statement that the 
employee may request conversion to career appointment;
    (v) A summary of the features of the Senior Executive Service (this 
can be accomplished by appending descriptive material prepared by the 
Office); and
    (vi) A statment that the employee must submit his/her decision with 
regard to paragraphs (d)(1)(ii) and (iv) of this section, in writing, on 
or before the end of the notice period.
    (2) Pay. An employee's SES rate will be determined under 5 CFR part 
534, subpart D.
    (3) Freedom of choice. The employee shall decide whether he/she 
accepts conversion to the Senior Executive Service. The employing agency 
shall not attempt to influence the employee's decision through coercion, 
intimidation or duress.
    (4) Employee's election. On or before the end of the notice period, 
the employee shall signify in writing his/her decision to accept or to 
decline an appointment under the Senior Executive Service. An excepted 
service employee shall also indicate whether he/she requests conversion 
to career appointment. Failure to respond shall be deemed a declination.
    (5) Effective date. A conversion under this section for an employee 
who elects to join the SES shall become effective at the end of the 
notice period.

[45 FR 8541, Feb. 8, 1980, as amended at 45 FR 19213, Mar. 25, 1980; 69 
FR 2050, Jan. 13, 2004]



Sec.  317.303  Status of employees who decline voluntary conversion to the Senior Executive Service.

    (a) An employee who declines conversion pursuant to Sec.  
317.302(a)(4) or Sec.  317.302(d)(4) shall remain in his/her current 
appointment and pay system, and shall retain the grade, seniority, and 
other rights and benefits associated with such type of appointment and 
pay system. The employee may continue in the current SES position or be 
reassigned to another position within or outside the Senior Executive 
Service.
    (b) The assignment of an employee who declines conversion under this 
subpart shall not result in the separation or reduction in grade of any 
other employee in the agency.
    (c) Nothing in these regulations affects an agency's right to 
terminate a limited executive appointment pursuant to Civil Service Rule 
IX.

[45 FR 8541, Feb. 8, 1980, as amended at 45 FR 19213, Mar. 25, 1980]



Sec.  317.304  Conversion of career and career-type appointees.

    (a) Coverage. This section covers employees serving under:
    (1) A career or career-conditional appointment; or
    (2) A similar type of appointment (``career-type'' appointment) in 
an excepted service position as determined by the Office. A career-type 
appointment is an appointment in the excepted service other than an 
appointment:
    (i) To a Schedule C position established under part 213 of this 
chapter;
    (ii) To a position authorized to be filled by noncareer executive 
assignment under part 305 of this chapter;
    (iii) To a position which meets the same criteria as a Schedule C 
position or a position authorized to be filled by non-career executive 
assignment; or
    (iv) To a position where the incumbent is traditionally changed upon 
a change in Presidential Administrations.
    (b) Senior Executive Service appointment. An employee covered by 
this section shall be converted to a Senior Executive Service career 
appointment. The employee may be assigned to either a ``general'' or a 
``career reserved'' position.

[[Page 184]]



Sec.  317.305  Conversion of excepted appointees.

    (a) Coverage. This section covers employees serving under an 
excepted appointment in a position:
    (1) In Schedule C of subpart C of part 213 of title 5, Code of 
Federal Regulations;
    (2) Filled by noncareer executive assignment under subpart F of part 
305 of title 5, Code of Federal Regulations;
    (3) In the Executive Schedule under subchapter II of chapter 53 of 
title 5, United States Code, other than a career Executive Schedule 
position; or,
    (4) Filled under an authority equivalent to paragraph (a) (1), (2), 
or (3) of this section.
    (b) Senior Executive Service appointment. An employee covered by 
this section shall be subject to one of the following actions.
    (1) If the employee's position is designated a ``general'' position, 
the agency may convert the employee to a Senior Executive Service 
noncareer appointment. The employee may be assigned only to a 
``general'' position.
    (2) If the employee's position is designated a ``career reserved'' 
position, the agency may convert the employee to a Senior Executive 
Service noncareer appointment and assign the employee to a ``general'' 
position. The employee cannot remain in a ``career reserved'' position.
    (3) If the employee subject to Sec.  317.302(a) or Sec.  317.302(d) 
has reinstatement eligibility to a position in the competitive service, 
or, as determined by the Office of Personnel Management, had substantial 
career-oriented service under a career-type appointment as defined in 
Sec.  317.304(a)(2), the employee may request conversion to a career 
appointment. Such request must be made on or before the end of the 
notice period.
    (i) If the request is approved by the Office, the agency will 
convert the employee to a Senior Executive Service career appointment. 
The employee may be assigned to a ``general'' or a ``career reserved'' 
position. The name of the individual and basis for approving the request 
must be published in the Federal Register.
    (ii) If the employee's request for conversion to career is not 
approved by the Office, or if the employee elects not to make such a 
request, the agency will convert the employee to a Senior Executive 
Service noncareer appointment. The employee may be assigned only to a 
``general'' position.
    (4) In lieu of action under paragraph (b) (1), (2), or (3) of this 
section, the agency may separate the employee from the civil service.



Sec.  317.306  Conversion of employees under time limited appointments.

    (a) Coverage. This section covers employees serving under:
    (1) A limited executive assignment under subpart E of part 305 of 
title 5, Code of Federal Regulations; or
    (2) A similar type of time limited appointment in an excepted 
service position.
    (b) Senior Executive Service appointment. An employee covered by 
this section shall be subject to one of the following actions.
    (1) If the position in which the employee is serving under a limited 
executive assignment or similar type of time limited appointment will 
terminate within three years from the date of the proposed conversion 
action, the agency may convert the employee to a Senior Executive 
Service limited term appointment.
    (2) If the position in which the employee is serving under a limited 
executive assignment or similar type of time limited appointment will 
not terminate within three years from the date of the proposed 
conversion action, the agency may convert the employee to a Senior 
Executive Service noncareer appointment and assign the employee to a 
``general'' position.
    (3) If the employee under a limited executive assignment has 
reinstatement eligibility to a position in the competitive service, or, 
as determined by the Office of Personnel Management, had substantial 
career-oriented service under a career-type appointment as defined in 
Sec.  317.304(a)(2), and if immediately prior to the limited executive 
assignment and without a break in service the employee served under a 
career appointment or career-type appointment in a position now being 
designated a Senior Executive Service position then the employee may 
request

[[Page 185]]

conversion to a career appointment. Such request must be made on or 
before the end of the notice period.
    (i) If the employee requests conversion to career, the agency will 
convert the employee to a Senior Executive Service career appointment. 
The employee may be assigned to a ``general'' or a ``career reserved'' 
position. The name of the individual and basis for approving the request 
must be published in the Federal Register.
    (ii) If the employee does not request conversion to career, the 
agency will convert the employee as provided for in paragraphs (b) (1) 
and (2) of this section.
    (4) In lieu of action under paragraph (b) (1), (2), or (3) of this 
section, the agency may separate the employee from the civil service.



                   Subpart D_Qualifications Standards

    Source: 54 FR 9758, Mar. 8, 1989, unless otherwise noted.



Sec.  317.401  General.

    (a) The head of each agency is responsible for establishing 
qualifications standards for Senior Executive Service (SES) positions in 
accordance with the procedures described in this subpart.
    (b) A written qualification standard must be established for a 
position before any appointment is made to the position. If a position 
is being filled competitively, the standard must be established before 
the position is announced.

[54 FR 9758, Mar. 8, 1989, as amended at 60 FR 6385, Feb. 2, 1995]



Sec.  317.402  Career reserved positions.

    (a) The qualifications standard must be in writing and identify the 
breadth and depth of the professional/technical and executive/managerial 
knowledges, skills, and abilities, or other qualifications, required for 
successful performance in the position.
    (b) The standard must be specific enough to enable applicants to be 
rated and ranked according to their degree of qualifications when the 
position is being filled on a competitive basis.
    (c) Each qualifications criterion in the standard must be job 
related. The standard may not emphasize agency-related experience, 
however, to the extent that it precludes otherwise well-qualified 
condidates from outside the agency from appointment consideration.
    (d) The standard may not include--
    (1) A minimum length of experience requirement beyond that 
authorized for similar positions in the General Schedule;
    (2) A minimum education requirement beyond that authorized for 
similar positions in the General Schedule; or
    (3) Any criterion prohibited by law or regulation.



Sec.  317.403  General positions.

    An agency may apply the criteria in Sec.  317.402 when developing 
qualifications standards for general positions. If it does not, OPM must 
be consulted before the agency develops the standard.



Sec.  317.404  Retention of qualifications standards.

    If a qualifications standard is changed, or a position is cancelled, 
the former standard shall be retained for 2 years.



                      Subpart E_Career Appointments

    Source: 54 FR 9758, Mar. 8, 1989, unless otherwise noted.



Sec.  317.501  Recruitment and selection for initial SES career appointment be achieved from the brightest and most diverse pool possible.

    (a) Executive Resources Board (ERB). The head of each agency shall 
appoint one or more ERBs from among employees of the agency or 
commissioned officers of the uniformed services serving on active duty 
in the agency. The ERB shall, in accordance with the requirements of 
this section, conduct the merit staffing process for initial SES career 
appointment.
    (b) Recruitment. (1) As a minimum, the source of recruitment to fill 
a SES position by career appointment must include all groups of 
qualified individuals within the civil service (as defined by 5 U.S.C. 
2101). It may also include

[[Page 186]]

qualified individuals outside the civil service.
    (2) Before an agency can fill an SES vacancy by career appointment, 
it must post a vacancy announcement in USAJOBS for at least 14 calendar 
days, including the date of publication. Each agency's SES vacancy 
announcement must comply with criteria in Sec.  330.707 of subpart G of 
this chapter.
    (c) Merit staffing requirements. As a minimum, agencies must--
    (1) Provide that competition be fair and open, that all candidates 
compete and be rated and ranked on the same basis, and that selection be 
based solely on qualifications and not on political or other non-job-
related factors. If a candidate is a current SES career appointee or an 
SES reinstatement eligible, an agency may consider the candidate either 
competitively or noncompetitively.
    (2) Provide that the ERB consider the executive and technical 
qualifications of each candidate, other than those found ineligible 
because they do not meet the requirements of the vacancy announcement. 
Preliminary qualifications screening, rating, and ranking of candidates 
may be delegated by the ERB.
    (3) Provide that the rating procedures sufficiently differentiate 
among eligible candidates on the basis of the knowledges, skills, 
abilities, and other job-related factors in the qualifications standard 
for the position so as to enable the relative ranking of the candidates. 
For this purpose, eligible candidates may be grouped into broad 
categories, such as highly qualified, well qualified, and qualified. 
Numerical rating and ranking are not required.
    (4) Provide that the record be adequately documented to show the 
basis of qualifications, rating, and ranking determinations.
    (5) Provide that the ERB make written recommendations to the 
appointing authority on the eligible candidates and identify the best 
qualified candidates. Rating sheets may be used to satisfy the written 
recommendation requirement for individual candidates, but the ERB must 
certify in writing the list of candidates to the appointing authority.
    (6) Provide that the appointing authority select from among the 
candidates identified as best qualified by the ERB and certify the 
candidate's executive and technical qualifications.
    (7) Provide that the appointing authority or the ERB certify in 
writing that appropriate merit staffing procedures were followed.
    (d) Retention of documentation. Agencies must keep such 
documentation as OPM prescribes for 2 years to permit reconstruction of 
merit staffing actions.
    (e) Applicant inquiries and appeals. Individuals are entitled to 
obtain information from an agency regarding the process used to recruit 
and select candidates for career appointment to SES positions. Upon 
request, applicants must be told whether they were considered qualified 
for the position and whether they were referred for appointment 
consideration. Also, they may have access to questionnaires or other 
written material regarding their own qualifications, except for material 
that would identify a confidential source. There is no right of appeal 
by applicants to OPM on SES staffing actions taken by ERBs, 
Qualifications Review Boards, or appointing authorities.
    (f) OPM review. OPM may review proposed career appointments to 
ensure that they comply with all merit staffing requirements and are 
free of any impropriety. An agency shall take such action as OPM may 
require to correct an action contrary to any law, rule, or regulation.

[54 FR 9758, Mar. 8, 1989, as amended at 58 FR 58261, Nov. 1, 1993; 60 
FR 6385, Feb. 2, 1995; 65 FR 33740, May 25, 2000; 66 FR 63906, Dec. 11, 
2001]



Sec.  317.502  Qualifications Review Board certification.

    (a) A Qualification Review Board (QRB) convened by OPM must certify 
the executive/managerial qualifications of a candidate before initial 
career appointment may be made to an SES position. More than one-half of 
the members of a QRB must be SES career appointees.
    (b) Agency requests for certification of a candidate by a QRB must 
contain such information as prescribed by OPM, including evidence that 
merit

[[Page 187]]

staffing procedures were followed and that the appointing authority has 
certified the candidate's qualifications for the position.
    (c) Qualifications Review Board certification of executive 
qualifications just be based on demonstrated executive experience; 
successful completion of an OPM-approved candidate development program; 
or possession of special or unique qualities that indicate a likelihood 
of executive success. Any existing time limit on a previously approved 
certification is removed.
    (d) OPM may determine the disposition of agency QRB requests where 
the QRB has not yet acted if the agency head leaves office or announces 
an intention to leave office, if the President has nominated a new 
agency head, or if there is a Presidential transition.
    (e) An action to convert a ``noncareer-type'' employee to a career 
SES appointment in the employee's current position or a successor to 
that position will not be forwarded to a QRB. A ``noncareer-type'' 
employee includes a noncareer SES appointee, a Schedule C appointee, or 
equivalent.
    (f) A new QRB certification is required for an individual to be 
reappointed as an SES career appointee following separation of the 
individual from an SES career appointment if:
    (1) The individual was removed during the SES probationary period 
for performance or disciplinary reasons; or
    (2) The individual completed an SES probationary period, or did not 
have to serve one, and was removed for a reason that made the individual 
ineligible for reinstatement to the SES under subpart G of this part.

[54 FR 9758, Mar. 8, 1989, as amended at 56 FR 170, Jan. 3, 1991; 60 FR 
6385, Feb. 2, 1995; 61 FR 46533, Sept. 4, 1996; 65 FR 33740, May 25, 
2000]



Sec.  317.503  Probationary period.

    (a) An individual's initial appointment as an SES career appointee 
becomes final only after the individual has served a 1-year probationary 
period as a career appointee; there has been an assessment of the 
appointee's performance during the probationary period; and the 
appointing authority, or his or her designee, has certified that the 
appointee performed at the level of excellence expected of a senior 
executive during the probationary period.
    (b) When a career appointee's executive qualification have been 
certified by a Qualifications Review Board on the basis of special or 
unique qualities, as described in Sec.  317.502(c), the probationary 
assessment must address any executive development activities the agency 
identified in support of the request for QRB certification.
    (c) The probationary period begins on the effective date of the 
personnel action initially appointing the individual to the SES as a 
career appointee and ends one calendar year later.
    (d) The following conditions apply to crediting service towards 
completion of the probationary period.
    (1) Time on leave with pay while in an SES position is credited. 
Earned leave for which the employee is compensated by lump-sum payment 
upon separation is not credited.
    (2) Time in a nonpay status while in an SES position is credited up 
to a total of 30 calendar days (or 22 workdays). After 30 calendar days, 
the probationary period is extended by adding to it time equal to that 
served in a nonpay status.
    (3) Time absent on military duty or due to compensable injury is 
credited upon restoration to the SES when no other break in SES service 
has occurred.
    (4) Time following transfer to an SES position in another agency is 
credited, i.e., the individual does not have to start a new probationary 
period.
    (e) Removal of a career appointee during the probationary period is 
covered by subpart D of part 359 of this chapter.
    (f) A career appointee who resigns or is removed from the SES before 
completion of the probationary period may not receive another SES career 
appointment unless selected under SES merit staffing procedures. The 
individual, however, need not be recertified by a QRB unless the 
individual was removed for performance or disciplinary reasons.
    (g) An individual who separated from the SES during the probationary 
period and who has been out of the SES more than 30 calendar days must 
serve a new 1-year probationary period upon

[[Page 188]]

reappointment and may not credit previous time in a probationary period. 
In the following situations, however, there is an exception and the 
individual is only required to complete the remainder of the previously 
served probationary period.
    (1) The individual left the SES without a break in service for a 
Presidential appointment and is exercising reinstatement rights under 5 
U.S.C. 3593(b).
    (2) The individual left the SES without a break in service for other 
civilian employment that provides a statutory or regulatory reemployment 
right to the SES when no other break in service occurred.
    (3) The break in SES service was the result of military duty or 
compensable injury, and the time credited under paragraph (c)(3) of this 
section was not sufficient to complete the probationary period.

[54 FR 9758, Mar. 8, 1989, as amended at 60 FR 6386, Feb. 2, 1995; 65 FR 
33740, May 25, 2000]



Sec.  317.504  [Reserved]



              Subpart F_Noncareer and Limited Appointments

    Source: 45 FR 62414, Sept. 19, 1980, unless otherwise noted.



Sec.  317.601  Authorization.

    (a) An agency may make a noncareer or limited appointment only to a 
general position.
    (b) Each use of a noncareer appointment authority must be approved 
individually by the Office of Personnel Management, and the authority 
reverts to the Office upon departure of the incumbent, unless otherwise 
provided by the Office.
    (c) Use of a limited appointment authority is subject to the 
conditions in this paragraph.
    (1) Agencies are provided a pool of limited appointment authorities 
equal to 3 percent of their Senior Executive Service (SES) position 
allocation, or one authority, whichever is greater. An agency may use 
the pool to make a limited appointment only of an individual who has a 
career or career-conditional appointment (or an appointment of 
equivalent tenure) in a permanent civil service position outside the 
SES. If necessary, the Office of Personnel Management may suspend use of 
the pool authority.
    (2) Each use of a limited appointment authority other than under 
paragraph (c)(1) of this section must be approved individually by the 
Office, and the authority reverts to the Office upon departure of the 
incumbent, unless otherwise provided by the Office.

[60 FR 6386, Feb. 2, 1995, as amended at 65 FR 33741, May 25, 2000]



Sec.  317.602  Conditions of a limited appointment.

    (a) Appointments authorized under this provision may be deemed 
provisional appointments for purposes of the regulations set out in 
parts 831, 842, 870, and 890 of this chapter if they meet the criteria 
set out in Sec. Sec.  316.401 and 316.403 of this chapter.
    (b) A limited appointment is not renewable. If an agency initially 
made the appointment for less than the maximum period authorized by the 
Office of Personnel Management, however, the agency may extend the 
appointment to the maximum period without the approval of the Office. 
The Office must be notified of the extension.
    (c) A limited term or limited emergency appointee may not be 
appointed to, or continue to hold, a position under such an appointment 
if, within the preceding 48 months, the individual has served more than 
36 months, in the aggregate, under any combination of limited term and 
limited emergency appointments.

[45 FR 62414, Sept. 19, 1980, as amended at 56 FR 10142, Mar. 11, 1991; 
60 FR 6386, Feb. 2, 1995]



Sec.  317.603  Selection.

    An agency may make a noncareer or limited appointment without the 
use of merit staffing procedures. The appointee, however, must meet the 
qualifications requirements for the position, as determined in writing 
by the appointing authority.

[45 FR 62414, Sept. 19, 1980, as amended at 60 FR 6386, Feb. 2, 1995]

[[Page 189]]



Sec.  317.604  Reassignment.

    (a) An agency may reassign a noncareer appointee only with the prior 
approval of the Office unless otherwise provided by the Office.
    (b)An agency may make the following reassignments of limited 
appointees to positions for which qualified without the prior approval 
of the Office of Personnel Management. The Office must be notified of 
the reassignment, however.
    (1) An agency may reassign a limited emergency appointee to another 
general position established to meet a bona fide, unanticipated, urgent 
need, except that the appointee may not serve in one or more positions 
in the agency under such appointment in excess of 18 months.
    (2) An agency may reassign a limited term appointee to another 
general position the duties of which will expire at the end of 3 years 
or less except that the appointee may not serve in one or more positions 
in the agency under such appointment in excess of 3 years.

[45 FR 62414, Sept. 19, 1980, as amended at 60 FR 6386, Feb. 2, 1995]



Sec.  317.605  Tenure of appointees.

    (a) A noncareer or limited appointee does not acquire status within 
the Senior Executive Service on the basis of the appointment.
    (b) An agency may terminate a noncareer or limited appointment at 
any time, unless a limited appointee is covered under 5 CFR 
752.601(c)(2). The agency must give the noncareer or limited appointee a 
written notice at least 1 day prior to the effective date of the 
removal.
    (c) The employment of a limited appointee ends automatically on the 
expiration of the appointment if the appointment has not been terminated 
earlier.
    (d) An employee: (1) Who received a limited appointment without a 
break of 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) in a permanent civil service position outside the 
Senior Executive Service, and
    (2) Whose limited appointment is terminated for reasons other than 
misconduct, neglect of duty, or malfeasance, shall be entitled to be 
placed in his/her former position or a position of like status, tenure, 
and grade.

[45 FR 62414, Sept. 19, 1980, as amended at 60 FR 6386, Feb. 2, 1995]



            Subpart G_SES Career Appointment by Reinstatement

    Source: 54 FR 9759, Mar. 8, 1989, unless otherwise noted.



Sec.  317.701  Agency authority.

    As provided for in Sec. Sec.  317.702 and 317.703, an agency may 
reinstate a former SES career appointee without regard to the merit 
staffing requirements established by OPM in Sec.  317.501(c).



Sec.  317.702  General reinstatement: SES career appointees.

    (a) Eligibility for general reinstatement. A former SES career 
appointee who meets the following conditions is eligible for 
reinstatement under this section:
    (1) The individual completed an SES probationary period under a 
previous SES career appointment or was exempted from that requirement; 
and
    (2) The individual's separation from his or her last SES career 
appointment was not a removal under subpart C of part 359 of this 
chapter for failure to be recertified as a senior executive; or a 
removal under subpart E of part 359 of this chapter for less than fully 
successful executive performance; or under 5 U.S.C. 1207 by order of the 
Merit Systems Protection Board as a result of a disciplinary action 
initiated by the Special Counsel under 5 U.S.C. 1206; or under 5 U.S.C. 
7532 (National Security); or under subpart F of part 752 of this chapter 
for misconduct, neglect of duty, or malfeasance; or a resignation after 
receipt of a notice proposing or directing removal under any of the 
above conditions. Removal for failure to accept a directed reassignment 
to another commuting area, or to accompany a position in a transfer of 
function to another commuting area, does not preclude reinstatement to 
the SES

[[Page 190]]

unless the appointment to the original position included acceptance of a 
written nationwide mobility agreement or policy.
    (b) Applying for reinstatement; time limit. Application for 
reinstatement under this section shall be made directly to the agency in 
which SES employment is sought. There is no time limit for reinstatement 
under this section.
    (c) Qualifications. The individual must meet the qualification 
requirements of the position to which reinstated. The agency makes this 
determination.
    (d) Tenure upon reinstatement. An individual who is reinstated under 
Sec.  317.702 becomes an SES career appointee.

[54 FR 9759, Mar. 8, 1989, as amended at 56 FR 172, Jan. 3, 1991]



Sec.  317.703  Guaranteed reinstatement: Presidential appointees.

    (a) Eligibility for reinstatement. (1) A former SES career appointee 
who was appointed by the President to a civil service position outside 
the SES without a break in service, and who left the Presidential 
appointment for reasons other than misconduct, neglect of duty, or 
malfeasance, is entitled by law to be reinstated to the SES.
    (2) If an individual is serving under a Presidential appointment 
with reinstatement entitlement and receives another Presidential 
appointment without a break in service between the two appointments, the 
individual continues to be entitled to be reinstated to the SES 
following termination of the second appointment. If there is an interim 
period between the two Presidential appointments, the individual must be 
reinstated as an SES career appointee before the effective date of the 
second appointment to preserve reinstatement entitlement following 
termination of the second appointment.
    (b) Applying for reinstatement; time limit. Except as provided in 
paragraph (d) of this section, an application in writing for 
reinstatement under this section must be made to OPM within 90 days 
after separation from the Presidential appointment. An application may 
be submitted as soon as the Presidential appointee's resignation is 
requested or submitted.
    (c) Directing reinstatement. (1) To the extent practicable, OPM will 
direct reinstatement within 45 days of the date of receipt by OPM of the 
application for reinstatement or the date of separation from the 
Presidential appointment, whichever is later.
    (2) OPM will use the following order of precedence in directing 
reinstatement of a former Presidential appointee:
    (i) The agency in which the individual last served as an SES career 
appointee before accepting the Presidential appointment;
    (ii) The successor agency to the one in which the individual last 
served as an SES career appointee;
    (iii) The agency or agencies in which the individual served as a 
Presidential appointee; or
    (iv) Any other agency in the Executive branch with positions under 
the SES.
    (3) The agency being directed to take the reinstatement action is 
responsible for assigning the individual to a position for which he or 
she meets the qualifications requirements.
    (4) When directing the reinstatement of a Presidential appointee, 
OPM may, as appropriate, allocate an additional SES space authority to 
the agency.
    (5) When a Presidential appointee tenders his or her resignation, 
voluntarily or upon request, the agency in which the Presidential 
appointment was held, upon approval by OPM, may place the appointee as 
an interim measure on an SES limited term or limited emergency 
appointment as appropriate, pending reinstatement, to preclude a break 
in service after the Presidential appointment has terminated.
    (6) To preserve reinstatement rights under this section, an 
individual who has been serving in a presidential appointment, if 
selected by the President for another appointment in the same or a new 
agency, must be reinstated to an appropriate position as an SES career 
appointee before the effective date of the new Presidential appointment, 
unless service as a Presidential appointee would be continuous.

[[Page 191]]

    (d) Reinstatement following direct negotiations with an agency. (1) 
A Presidential appointee who qualifies under paragraph (a) of this 
section may initiate direct negotiations with an agency regarding 
reinstatement under this section.
    (2) An agency may voluntarily reinstate a former Presidential 
appointee without an order from OPM directing such action.
    (3) The agency is responsible for assigning the individual to a 
position for which he or she meets the qualification requirements.
    (4) Direct negotiations with an agency do not extend the time limit 
stated in paragraph (b) of this section for making application to OPM.
    (5) OPM may, when appropriate and upon request by the agency, 
allocate an additional SES space authority to an agency that voluntarily 
reinstates a former Presidential appointee under this paragraph.
    (6) An individual who is reinstated under this paragraph because of 
direct negotiations with an agency is not entitled to further assistance 
by OPM.
    (e) Tenure upon reinstatement. (1) An individual reinstated under 
Sec.  317.703 becomes an SES career appointee.
    (2) An individual reinstated under Sec.  317.703 who was serving an 
SES probationary period at the time of his or her Presidential 
appointment is required to complete the 1-year SES probationary period 
upon reinstatement.
    (f) Compliance. (1) An agency must comply with an order to reinstate 
issued by OPM under this section as promptly as possible, but not more 
than 30 calendar days from the date of the order.
    (2) The agency will notify OPM of a reinstatement action taken under 
this section within 5 workdays of the effective date of the 
reinstatement.
    (3) An individual who declines a reinstatement ordered by OPM is not 
entitled to further placement assistance by OPM under this section.

[54 FR 9759, Mar. 8, 1989, as amended at 60 FR 6386, Feb. 2, 1995]



                  Subpart H_Retention of SES Provisions



Sec.  317.801  Retention of SES provisions.

    (a) Coverage. This subpart applies to--
    (1) A career appointee in the SES appointed at any time by the 
President to a civilian position in the executive branch with the advice 
and consent of the Senate at a rate of basic pay which is equal to or 
greater than the rate payable for Executive Level V; or
    (2) A career appointee in the SES who is not covered under paragraph 
(a)(1) of this section and who was appointed on or after November 1, 
1986, to a civilian position in the executive branch which is covered by 
the Executive Schedule, or the rate of basic pay for which is fixed by 
statute at a rate equal to one of the levels of the Executive Schedule.
    (b) Election. (1) At the time of appointment, an appointee covered 
by paragraph (a) of this section may elect to retain some, all, or none 
of the following SES provisions related to basic pay (including the 
aggregate limitation on pay established by 5 U.S.C. 5307), performance 
awards, awarding of ranks, severance pay, leave, and retirement. That 
election will remain in effect for no less than 1 year, unless the 
appointee leaves the position sooner.
    (2) The appointing agency is responsible for advising the appointee 
of the election opportunity. The election decision must be in writing.
    (c) Change in election. Except as provided by paragraph (b) of this 
section, a career appointee is permitted to make an election for 
purposes of adding or dropping coverage no more than once during any 
twelve-month period.

[50 FR 6154, Feb. 14, 1985, as amended at 56 FR 15273, Apr. 16, 1991; 57 
FR 54677, Nov. 20, 1992; 60 FR 6386, Feb. 2, 1995; 69 FR 2050, Jan. 13, 
2004; 72 FR 12035, Mar. 15, 2007]



             Subpart I_Reassignments, Transfers, and Details

    Source: 54 FR 9760, Mar. 8, 1989, unless otherwise noted.

[[Page 192]]



Sec.  317.901  Reassignments.

    (a) In this section, reassignment means a permanent assignment to 
another SES position within the employing executive agency or military 
department. (See 5 U.S.C. 105 for a definition of ``executive agency'' 
and 5 U.S.C. 102 for a definition of ``military department.'')
    (b) A career appointee may be reassigned to any SES position for 
which qualified in accordance with the following conditions:
    (1) Reassignment within a commuting area. For reassignment within a 
commuting area, the appointee must receive a written notice at least 15 
days before the effective date of the reassignment. This notice 
requirement may be waived only when the appointee consents in writing.
    (2) Reassignment outside of a commuting area. For reassignment 
outside of a commuting area, (i) the agency must consult with the 
appointee on the reasons for, and the appointee's preferences with 
respect to, the proposed reassignment; and (ii) following such 
consultation, the agency must provide the appointee a written notice, 
including the reasons for the reassignment, at least 60 days before the 
effective date of the reassignment. This notice requirement may be 
waived only when the appointee consents in writing.
    (c) A career appointee may not be involuntarily reassigned within 
120 days after the appointment of the head of an agency, or within 120 
days after the appointment of the career appointee's most immediate 
supervisor who is a noncareer appointee and who has the authority to 
make an initial appraisal of the career appointee's performance under 
subpart C of part 430 of this chapter.
    (1) In this paragraph--
    (i) Head of an agency means the head of an executive or military 
department or the head of an independent establishment.
    (ii) Noncareer appointee includes an SES noncareer or limited 
appointee, an appointee in a position filled by Schedule C, or an 
appointee in an Executive Schedule or equivalent position that is not 
required to be filled competitively.
    (2) These restrictions do not apply to the involuntary reassignment 
of a career appointee under 5 U.S.C. 4314(b)(3) based on a final 
performance rating of ``Unsatisfactory'' that was issued before the 
appointment of a new agency head or a new noncareer supervisor as 
defined in paragraph (c)(1) of this section. If a moratorium is already 
underway at the time the final rating is issued, then that moratorium 
must be completed before the reassignment action can be effected.
    (3) A voluntary reassignment during the 120-day period is permitted, 
but the appointee must agree in writing before the reassignment.
    (4) For the purpose of calculating the 120-day period, any days, not 
to exceed a total of 60, during which the career appointee is serving on 
a detail or other temporary assignment apart from the appointee's 
regular position shall not be counted. Any days in excess of 60 days on 
one or more details or other temporary assignments shall be counted.
    (5) The prohibition in this paragraph on involuntary reassignments 
may be applied by an agency, at its discretion, in the case of a detail 
of an individual as the head of an agency or of a noncareer appointee as 
a supervisor, or when a noncareer appointee in a deputy position is 
acting as the agency head or in a vacant supervisory position. If the 
individual later receives a permanent appointment to the position 
without a break in service, the 120-day moratorium initiated by the 
permanent appointment shall include any days spent in the position on an 
acting basis.
    (d) A 15 or 60-day advance notice described in paragraph (b) of this 
section may be issued during the 120-day moratorium on the involuntary 
reassignment of a career appointee described in paragraph (c) of this 
section, but an involuntary reassignment may not be effected until the 
moratorium has ended.

[54 FR 9760, Mar. 8, 1989, as amended at 57 FR 10124, Mar. 24, 1992; 58 
FR 58261, Nov. 1, 1993; 60 FR 6387, Feb. 2, 1995; 63 FR 34258, June 24, 
1998]



Sec.  317.902  Transfers.

    (a) Definition. In this section, transfer means a permanent 
assignment or appointment to another SES position in a

[[Page 193]]

different executive agency or military department.
    (b) Requirements. Transfers are voluntary and cannot occur without 
the consent of the appointee and the gaining agency, except transfers 
connected with a transfer of functions to another agency.



Sec.  317.903  Details.

    (a) Definition. In this section, detail means the temporary 
assignment of an SES member to another position (within or outside of 
the SES) or the temporary assignment of a non-SES member to an SES 
position, with the expectation that the employee will return to the 
official position of record upon expiration of the detail. For purposes 
of pay and benefits, the employee continues to encumber the position 
from which detailed. The provisions of this section cover details within 
or outside of the employing agency.
    (b) Time limits. (1) Details within an executive agency or military 
department must be made in no more than 120-day increments.
    (2) An agency may not detail an SES employee to unclassified duties 
for more than 240 days.
    (3) An agency must use competitive procedures when detailing a non-
SES employee to an SES position for more than 240 days unless the 
employee is eligible for a noncompetitive career SES appointment.
    (4) An agency must obtain OPM approval for a detail of more than 240 
days if the detail is of:
    (i) A non-SES employee to an SES position that supervises other SES 
positions; or
    (ii) An SES employee to a position at the GS-15 or equivalent level 
or below.
    (c) SES career reserved positions. Only a career SES appointee or a 
career-type non-SES appointee may be detailed to a career reserved 
position.
    (d) SES general positions. Any SES appointee or non-SES appointee 
may be detailed to a general position.

[54 FR 9760, Mar. 8, 1989, as amended at 60 FR 6387, Feb. 2, 1995]



Sec.  317.904  Change in type of SES appointment.

    An agency may not require a career SES appointee to accept a 
noncareer or limited SES appointment as a condition of appointment to 
another SES position. If a career appointee elects to accept a noncareer 
or limited appointment, the voluntary nature of the action must be 
documented in writing before the effective date of the new appointment. 
A copy of such documentation must be retained permanently in the 
appointee's Official Personnel Folder.



                       Subpart J_Corrective Action



Sec.  317.1001  OPM authority for corrective action.

    If OPM finds that an agency has taken an action contrary to law or 
regulation under this part, it may require the agency to take 
appropriate corrective action.

[54 FR 9761, Mar. 8, 1989]



PART 319_EMPLOYMENT IN SENIOR-LEVEL AND SCIENTIFIC AND PROFESSIONAL POSITIONS--Table of Contents




                            Subpart A_General

Sec.
319.101 Coverage.
319.102 Senior-level positions.
319.103 Scientific and professional positions.
319.104 Applicable instructions.
319.105 Reporting requirements.

            Subpart B_Position Allocations and Establishment

319.201 Coverage.
319.202 Allocation of positions.
319.203 Establishment of positions.

                  Subpart C_Qualifications Requirements

319.301 Qualifications standards.
319.302 Individual qualifications.

                  Subpart D_Recruitment and Examination

319.401 Senior-level positions.
319.402 Scientific and professional positions.

    Authority: 5 U.S.C. 1104, 3104, 3324, 3325, 5108, and 5376.

    Source: 60 FR 6387, Feb. 2, 1995, unless otherwise noted.

[[Page 194]]



                            Subpart A_General



Sec.  319.101  Coverage.

    (a) This part covers senior-level (SL) and scientific and 
professional (ST) positions that are classified above GS-15 and are paid 
under 5 U.S.C. 5376. See 5 CFR part 534, subpart E, for pay provisions.
    (b) Positions that meet the criteria for placement in the Senior 
Executive Service (SES) under 5 U.S.C. 3132(a) may not be placed in the 
SL or ST system and are not covered by this part.



Sec.  319.102  Senior-level positions.

    (a) SL positions are positions classified above GS-15 pursuant to 5 
U.S.C. 5108 that are not covered by other pay systems (e.g. the SES and 
ST systems).
    (b) Positions in agencies that are excluded from 5 U.S.C. chapter 51 
(Classification) under section 5102(a), or positions that meet one of 
the exclusions in section 5102(c), are excluded from the SL system.
    (c) SL positions in the executive branch are in the competitive 
service unless the position is excepted by statute, Executive order, or 
the Office of Personnel Management (OPM).



Sec.  319.103  Scientific and professional positions.

    (a) ST positions are established under 5 U.S.C. 3104 to carry out 
research and development functions that require the services of 
specially qualified personnel.
    (b) Research and development functions are defined in The Guide to 
Personnel Data Standards under the data element ``Functional 
Classification.'' The guide is available for inspection at the Office of 
Personnel Management library, 1900 E Street, NW., Washington DC 20415.
    (c) An ST position must be engaged in research and development in 
the physical, biological, medical, or engineering sciences, or a closely 
related field.
    (d) ST positions are in the competitive service.



Sec.  319.104  Applicable instructions.

    Provisions in statute, Executive order, or regulations that relate 
in general to competitive and excepted service positions and employment 
apply to positions and employment under the SL and ST systems unless 
there is a specific provision to the contrary.



Sec.  319.105  Reporting requirements.

    Agencies shall report such information as may be requested by OPM 
relating to SL and ST positions and employees.



            Subpart B_Position Allocations and Establishment



Sec.  319.201  Coverage.

    This section applies to SL positions in an executive agency per 5 
U.S.C. 5108 and ST positions in any agency per 5 U.S.C. 3104.



Sec.  319.202  Allocation of positions.

    SL and ST positions may be established only under a position 
allocation approved by OPM.



Sec.  319.203  Establishment of positions.

    (a) Prior approval of OPM is not required to establish individual SL 
and ST positions within an allocation, but the positions must be 
established in accordance with the standards and procedures in paragraph 
(b) of this section. OPM reserves the right to require the prior 
approval of individual positions if the agency is not in compliance with 
these standards and procedures.
    (b) Before an SL or ST position may be established, an agency must:
    (1) Prepare a description of the duties, responsibilities, and 
supervisory relationships of the position; and
    (2) Determine, consistent with published position classification 
standards and guides and accepted classification principles, that the 
position is properly classified above GS-15. In addition, for an ST 
position an agency must determine that the position meets the functional 
research and development criteria described in Sec.  319.103.



                  Subpart C_Qualifications Requirements



Sec.  319.301  Qualifications standards.

    (a) General. Agency heads are responsible for establishing 
qualifications

[[Page 195]]

standards in accordance with the criteria in this section.
    (1) The standard must be in writing and identify the breadth and 
depth of the knowledges, skills, and abilities, or other qualifications, 
required for successful performance in the position.
    (2) Each criterion in the standard must be job related.
    (3) The standard may not include any criterion prohibited by law or 
regulation.
    (b) Standards for senior-level positions. (1) The standard must be 
specific enough to enable applicants to be rated and ranked according to 
their degree of qualifications when the position is being filled on a 
competitive basis.
    (2) The standard may not include a minimum length of experience or 
minimum education requirement beyond that authorized for similar 
positions in the General Schedule.
    (c) Standards for scientific and professional positions. (1) Unless 
the agency obtains the approval of OPM, the standard must provide that 
the candidate have at least 3 years of specialized experience in, or 
closely related to, the field in which the candidate will work. At least 
1 year of this experience must have been in planning and executing 
difficult programs of national significance or planning and executing 
specialized programs that show outstanding attainments in the field of 
research or consultation.
    (2) Agencies may require that at least 1 year of the specialized 
experience must be at least equivalent to experience at GS-15.
    (3) Agencies may require applicants to furnish positive evidence 
that they have performed highly creative or outstanding research where 
similar abilities are required in the ST position.



Sec.  319.302  Individual qualifications.

    Agency heads are delegated authority to approve the qualifications 
of individuals appointed to SL and ST positions. The agency head must 
determine that the individual meets the qualifications standards for the 
position to which appointed.



                  Subpart D_Recruitment and Examination



Sec.  319.401  Senior-level positions.

    (a) General. SL positions may be in either the competitive or 
excepted service. This section only applies to appointments in the 
competitive service from a civil service register. Reassignments, 
promotions, transfers, and reinstatements to SL positions in the 
competitive service shall be made in accordance with applicable 
statutory and regulatory provisions. Employment of SL employees in the 
excepted service is covered by 5 CFR, part 302.
    (1) Agency heads are delegated authority to recruit and examine 
applicants for SL positions in the competitive service, establish 
competitor inventories, and issue certificates of eligibility in 
conformance with the requirements of this section, other applicable 
regulations, and statute.
    (2) Agencies shall take such action as OPM may require to correct an 
action taken under delegated authority.
    (3) Delegated authority may be terminated or suspended at any time 
by OPM for reasons such as, but not limited to:
    (i) Evidence of unequal treatment of candidates; or
    (ii) Identifiable merit system abuses.
    (b) Recruitment. (1) A recruiting plan, with appropriate emphasis on 
affirmative recruitment, must be developed and followed.
    (2) Vacancy announcements must remain open for a minimum of 14 
calendar days. The closing date may not be a nonworkday.
    (3) State Job Service offices must be notified of the vacancy in 
accordance with 5 CFR 330.102. Publication in OPM's listing of Senior 
Executive Service and other executive vacancies, which is provided the 
offices, will satisfy this requirement.
    (c) Evaluation and selection. Examination and selection procedures, 
and rights of applicants, are subject to the same provisions in statute 
and regulation that govern civil service examinations and appointments 
in general.
    (d) Records. (1) Agencies must maintain records sufficient to allow 
reconstruction of the merit staffing process.

[[Page 196]]

    (2) Records must be kept for 2 years after an appointment, or, if no 
appointment is made, for 2 years after the closing date of the vacancy 
announcement.



Sec.  319.402  Scientific and professional positions.

    (a) ST positions are filled without competitive examination under 5 
U.S.C. 3325.
    (b) ST positions are not subject to the citizenship requirements in 
5 CFR part 338, subpart A. Agencies, however, must observe any 
restrictions on the employment of noncitizens in applicable 
appropriations acts.
    (c) ST employees acquire competitive status immediately upon 
appointment. They are not required to serve a probationary or trial 
period.



PART 330_RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)--Table of Contents




                Subpart A_Discretion in Filling Vacancies

Sec.
330.101 Methods of filling vacancies.
330.102 Federal employment information.

               Subpart B_Reemployment Priority List (RPL)

330.201 Establishment and maintenance of RPL.
330.202 Application.
330.203 Eligibility due to reduction in force.
330.204 Eligibility due to compensable injury.
330.205 Employment restrictions.
330.206 Job consideration.
330.207 Selection from RPL.
330.208 Qualification requirements.
330.209 Appeals.

Subpart C [Reserved]

         Subpart D_Positions Restricted to Preference Eligibles

330.401 Competitive examination.
330.402 Direct recruitment.
330.403 Noncompetitive actions.
330.404 Displacement of preference eligibles occupying restricted 
          positions in contracting out situations.
330.405 Agency placement assistance.
330.406 OPM placement assistance.
330.407 Eligibility for the Interagency Career Transition Assistance 
          Plan.

        Subpart E_Restrictions To Protect Competitive Principles

330.501 General restriction on movement after competitive appointment.
330.502 [Reserved]
330.503 Assessment of compliance with competitive principles.
330.504 Special restrictions after appointment under Part-time Direct 
          Hire Program.
330.505 Nonapplicability to persons within reach on registers.

  Subpart F_Agency Career Transition Assistance Plans (CTAP) for Local 
                     Surplus and Displaced Employees

330.601 Purpose.
330.602 Agency plans.
330.603 [Reserved]
330.604 Definitions.
330.605 Eligibility.
330.606 Order of selection for filling vacancies from within the agency.
330.607 Notification of surplus and displaced employees.
330.608 Application and selection.
330.609 Qualification reviews.
330.610 [Reserved]
330.611 Oversight.

 Subpart G_Interagency Career Transition Assistance Plan for Displaced 
                                Employees

330.701 Purpose.
330.702 [Reserved]
330.703 Definitions.
330.704 Eligibility.
330.705 Order of selection in filling vacancies from outside the 
          agency's workforce.
330.706 Notification of displaced employees.
330.707 Reporting vacancies to OPM.
330.708 Application and selection.
330.709 Qualification reviews.
330.710 [Reserved]
330.711 Oversight.

Subparts H-I [Reserved]

                     Subpart J_Prohibited Practices

330.1001 Withdrawal from competition.

    Subpart K_Federal Employment Priority Consideration Program for 
     Displaced Employees of the District of Columbia Department of 
                               Corrections

330.1101 Purpose.
330.1102 Duration.
330.1103 Definitions.
330.1104 Eligibility.
330.1105 Selection.

[[Page 197]]

330.1106 Appointment.

Subpart L_Interagency Career Transition Assistance for Displaced Former 
                       Panama Canal Zone Employees

330.1201 Purpose.
330.1202 Definitions.
330.1203 Eligibility
330.1204 Selection.

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 19 FR 7521, 3 CFR, 
1954-58, Comp., p. 218.
    Section 330.102 also issued under 5 U.S.C. 3327.
    Subpart B also issued under 5 U.S.C. 3315 and 8151.
    Section 330.401 also issued under 5 U.S.C. 3310.
    Subpart G also issued under 5 U.S.C. 8337(h) and 8456(b).
    Subpart K also issued under sec. 11203 of Pub. L. 105-33 (111 Stat. 
738) and Pub. L. 105-274 (112 Stat. 2424).
    Subpart L also issued under sec. 1232 of Pub. L. 96-70, 93 Stat. 
452.

    Source: 33 FR 12425, Sept. 4, 1968, unless otherwise noted.



                Subpart A_Discretion in Filling Vacancies



Sec.  330.101  Methods of filling vacancies.

    An appointing officer may fill a position in the competitive service 
by any of the methods authorized in this chapter. He shall exercise his 
discretion in each personnel action solely on the basis of merit and 
fitness and without the discrimination prohibited in part 713 of this 
chapter.



Sec.  330.102  Federal employment information.

    (a) Vacancies open to the public--(1) Notice required--(i) Under 5 
U.S.C. 3327, Federal agencies must notify OPM promptly of:
    (A) Open competitive examinations;
    (B) Vacancies in the competitive service to be filled under direct 
hire procedures or part 333 of this chapter; and
    (C) Vacancies in the Senior Executive Service for which the agency 
seeks applications from persons outside the Federal service. Also, in 
accordance with Sec.  317.501(b)(2) of this chapter, agencies must 
notify OPM of all Senior Executive Service vacancies to be filled by 
initial career appointment.
    (ii) OPM will provide this information to the employment offices of 
the United States Employment Service.
    (2) Agencies covered. Paragraph (a)(1) of this section applies to:
    (i) The executive departments listed at 5 U.S.C. 101;
    (ii) The military departments listed at 5 U.S.C. 102;
    (iii) Government owned corporations in the executive branch as 
described at 5 U.S.C. 103;
    (iv) Independent establishments in the executive branch as described 
at 5 U.S.C. 104, including the Nuclear Regulatory Commission; and
    (v) Government Printing Office.
    (b) All other vacancies--(1) Notice required. Under 5 U.S.C. 3330, 
OPM must maintain, and make available to the public, a list of agency 
vacancy announcements for positions in the competitive service. Under 
Sec.  330.707 of this chapter, agencies must notify OPM promptly of 
competitive service vacancies to be filled for more than 120 days when 
the agency will accept applications from individuals outside the 
agency's own work force.
    (2) [Reserved]
    (c) Funding. Under 5 U.S.C. 3330(f), OPM is authorized to charge 
fees to agencies for their share of the cost of providing employment 
information to the public and to Federal employees. OPM will work with 
agencies to review the effectiveness and efficiency of the Federal 
Employment Information System in meeting Federal agency and public needs 
and identify improvements to the system, consistent with the minimum 
level of service and statutory requirements. Subsequently, OPM will 
annually compute the cost of providing employment information and notify 
each agency of its share, along with a full accounting of the costs, and 
payment procedures.

[61 FR 11501, Mar. 21, 1996, as amended at 62 FR 31320, June 9, 1997]



               Subpart B_Reemployment Priority List (RPL)

    Source: 53 FR 45067, Nov. 8, 1988, unless otherwise noted.

[[Page 198]]


    Editorial Note: Nomenclature changes to subpart B of part 330 appear 
at 70 FR 72067, Dec. 1, 2005.



Sec.  330.201  Establishment and maintenance of RPL.

    (a) The reemployment priority list (RPL) is the mechanism agencies 
use to give reemployment consideration to their former competitive 
service employees separated by reduction in force (RIF) or fully 
recovered from a compensable injury after more than 1 year. The RPL is a 
required component of agency positive placement programs. In filling 
vacancies, the agency must give RPL registrants priority consideration 
over certain outside job applicants and, if it chooses, also may 
consider RPL registrants before considering internal candidates.
    (b) Each agency is required to establish and maintain a reemployment 
priority list for each commuting area in which it separates eligible 
competitive service employess by RIF or when a former employee recovers 
from a compensable injury after more than 1 year, except as provided in 
paragraph (c) of this section. For purposes of this subpart, agency 
means Executive agency as defined in 5 U.S.C. 105. All components of an 
agency within the commuting area utilize a single RPL and are 
responsible for giving priority consideration to the RPL registrants.
    (c) An agency need not maintain a distinct RPL for employees 
separated by reduction in force if the agency operates a placement 
program for its employees and obtains OPM concurrence that the program 
satisfies the basic requirements of this subpart. The intent of this 
provision is to allow agencies to adopt different placement strategies 
that are effective for their particular programs yet satisfy legal 
entitlements to priority consideration in reemployment.

[60 FR 3058, Jan. 13, 1995]



Sec.  330.202  Application.

    (a)(1) To be entered on the RPL, an eligible employee under Sec.  
330.203 must complete an application prescribed by the employing agency 
and inform the agency of any significant changes in the information 
provided. This application must provide for the employee to specify the 
conditions under which he or she will accept employment, including 
grade, occupation, and minimum hours or work per week, in addition to 
positions at the same representative rate and type of work schedule 
(e.g., full-time, part-time, seasonal, intermittent, on-call, etc.) as 
the position from which the employee was or will be separated. 
Registration may take place as soon as a specific notice of separation 
under part 351 of this chapter, or a Certification of Expected 
Separation as provided in Sec.  351.807 of this chapter, has been 
issued. The employee must submit the application within 30 calendar days 
after the RIF separation date. An employee who fails to submit a timely 
application is not entitled to be placed on the RPL. If an agency has 
components scattered throughout a large commuting area, the agency may 
allow eligibles to indicate their availability only for certain sub-
areas within the commuting area. However, the agency cannot deny 
consideration throughout the entire commuting area if the eligible wants 
it.
    (2) An eligible employee under Sec.  330.204 must request 
reemployment within 30 calendar days after the date compensation ceases, 
except that when an appeal for continuation of compensation is filed, 
the 30-day period begins the day after resolution is reached. No 
specific format is required.
    (b) An agency must enroll an individual on the RPL no later than 10 
calendar days after receipt of an application or request.
    (c) Agencies should be prepared to assist employees, when requested, 
in identifying and listing on the reemployment priority list (RPL) 
application those positions within the agency for which the employee 
qualifies and is interested.

[53 FR 45067, Nov. 8, 1988, as amended at 60 FR 3059, Jan. 13, 1995]



Sec.  330.203  Eligibility due to reduction in force.

    (a) To apply for the RPL, an employee must meet all the following 
conditions:
    (1) Be serving under an appointment in the competitive service in 
tenure group I or II;

[[Page 199]]

    (2) Have received a rating above unacceptable (level 1) as the last 
annual performance rating of record for part 351 purposes (except for 
employees in positions excluded from a performance appraisal system by 
law, regulation, or OPM administrative action);
    (3) Have received a specific notice of separation under part 351 of 
this chapter, or a Certification of Expected Separation as provided in 
Sec.  351.807 of this chapter; and
    (4) Have not declined an offer under subpart G of part 351 of this 
chapter of a position with the same type of work schedule and a 
representative rate at least as high as that of the position from which 
the employee was or will be separated.
    (b) At the time it gives a specific RIF notice of separation or a 
Certification of Expected Separation, the agency must give each eligible 
employee information about the RPL, including appeal rights.
    (c) A tenure group I employee is eligible for the RPL for 2 years, 
and a tenure group II employee is eligible for 1 year, from the date the 
employee is entered on the RPL.
    (d)(1) When an individual declines an offer of career, career-
conditional, or excepted appointment without time limit or fails to 
reply to an inquiry, under this subpart, and the position meets the 
acceptable conditions shown in his or her application, he or she loses 
RPL consideration for all positions with a representative rate at or 
below that grade. However, subject to paragraph (d)(2)(iii) of this 
section, the individual retains eligibility for positions with a higher 
representative rate up to the last grade held.
    (2) Also, an individual is taken off the RPL before the period of 
eligibility expires when the individual:
    (i) Requests removal;
    (ii) Receives a career, career-conditional, or excepted appointment 
without time limit in any agency;
    (iii) Declines an offer of career, career-conditional, or excepted 
appointment without time limit or fails to reply to an inquiry, under 
this subpart, by the employee's former agency, concerning a specific 
position having a representative rate at least as high, and with the 
same type of work schedule, as that of the position from which the 
person was or will be separated.
    (iv) Separates for some other reason (such as retirement, 
resignation, etc.) before the date the RIF separation would take effect. 
An employee who retires on or after the date of separation by RIF does 
not lose RPL eligibility.
    (v) Declines an interview or fails to appear for a scheduled 
interview only if notified in advance of this requirement and the 
subsequent consequences.
    (vi) In the case of an individual enrolled on an RPL for Alaska or 
overseas, leaves the area covered by that RPL or becomes disqualified 
for overseas employment because of previous service or residence.
    (3) When an agency removes an individual from the RPL because of 
failure to reply to a specific permanent job offer or an inquiry of 
availability for a specific permanent vacancy, the agency must have 
evidence to show that a written offer or inquiry was made (e.g., a 
Postal Service ``return receipt signed by addressee only''). The written 
offer or inquiry to the individual must clearly state that failure to 
respond will result in loss of RPL consideration for that grade or 
higher grades, if eligible.
    (e) Declination of nonpermanent employment has no effect on RPL 
eligibility or continuation of RPL consideration.
    (f) Consideration for all jobs (whether permanent or nonpermanent) 
is suspended for any individual who cannot be reached by the agency. 
Submission of an updated application can reinstate consideration, but 
the period of eligibility is not extended beyond the original time set 
in paragraph (c) of this section.
    (g) Eligibles who had agreed to transfer with their function but 
were separated by RIF from the gaining competitive area are registered 
on the RPL of the gaining competitive area.

[53 FR 45067, Nov. 8, 1988, as amended at 57 FR 21890, May 26, 1992; 60 
FR 3059, Jan. 13, 1995]



Sec.  330.204  Eligibility due to compensable injury.

    (a) A competitive service employee in tenure group I or II who is 
separated (or who accepts a lower graded position

[[Page 200]]

in lieu of separation) because of a compensable injury of disability (as 
defined in part 353 of this chapter) who has fully recovered more than 1 
year after compensation began is entitled to be placed on the RPL 
provided the individual applies within the timeframes addressed in Sec.  
330.202. Part 353 of this chapter contains information on eligibility.
    (b) A former tenure group I employee is eligible for the RPL for 2 
years, and a former tenure group II employee is eligible for 1 year, 
from the date the individual is entered on the RPL. An individual is 
taken off the RPL before the period of eligibility expires when the 
individual:
    (1) Requests removal;
    (2) Receives a career, career-conditional, or excepted appointment 
without time limit in any agency; or
    (3) Declines an offer or fails to respond to an inquiry of 
availability about a specific position that is the same as or equivalent 
to the position from which separated.
    (c) A former employee must request reemployment consideration with 
the time limits set in Sec.  330.202.

[53 FR 45067, Nov. 8, 1988, as amended at 60 FR 3059, Jan. 13, 1995]



Sec.  330.205  Employment restrictions.

    (a) The restrictions in paragraph (b) of this section apply to the 
filling of all competitive service vacancies, regardless of whether an 
agency plans to make a temporary, term, or permanent appointment. This 
means an agency must consider RPL registrants for nonpermanent as well 
as permanent positions when they have indicated such interest on their 
RPL application.
    (b) When a qualified individual is available on an agency's RPL, the 
agency may not make a final commitment to an individual not on the RPL 
to fill a permanent or temporary competitive service position by:
    (1) A new appointment, unless the individual appointed is a 
qualified 10-point preference eligible; or
    (2) Transfer or reemployment, unless the individual appointed is a 
preference eligible, is exercising restoration rights under part 353 of 
this chapter based on return from military service or recovery from a 
compensable injury or disability within 1 year, or is exercising other 
statutory or regulatory reemployment rights.
    (c) Paragraph (b) of this section does not apply to actions 
involving employees on an agency's rolls, as authorized in paragraphs 
(c) (1), (2), and (3) of this section, or in filling a specific 
position:
    (1) When all qualified individuals on the RPL decline an offer of a 
specific position or fail to respond to an official agency inquiry about 
their availability for it; or
    (2) By a current, qualified employee of the agency through:
    (i) Detail or position change (promotion, demotion, reassignment); 
or
    (ii) Conversion to competitive appointment of employees currently 
serving under appointments that carry a noncompetitive conversion 
eligibility (e.g., Veterans Recruitment Appointee, 30 percent disabled 
veterans, disabled employees under Schedule A appointment, Presidential 
Management Interns, cooperative education students under Schedule B 
appointment, and TAPERS); or
    (iii) Reappointment without a break in service to the same position 
currently held by an employee serving under a temporary appointment of 1 
year or less (only to another temporary appointment not to exceed 1 year 
or less and not to a permanent appointment); or
    (iv) Extension of an employee's temporary appointment up to the 
maximum permitted by the appointment authority or as authorized by OPM.
    (3) By a 30-day special needs appointment or 700 hour temporary 
appointment of a severely disabled or mentally restored individual, when 
the agency's staffing policies provide for these exceptions.
    (d) An agency must clear the RPL at the grade level at which it 
fills a position (regardless of the full performance level). Similarly, 
if an agency advertises a position at multiple grade levels, it must 
clear the RPL only at the grade level at which the position is 
ultimately filled.
    (e) Once an agency has cleared its RPL and made a final employment 
commitment to an individual, the later registration of another employee 
on

[[Page 201]]

the RPL does not prevent the fulfillment of the original commitment, 
regardless of when the individual actually enters on duty.
    (f) An agency may make an exception to this section and appoint an 
individual not on the RPL as authorized by Sec.  330.207(d).
    (g) When submitting a request for referral of eligibles, an agency 
is required to indicate that no qualified RPL registrant is available 
for the vacancy and therefore the agency may make a new appointment. 
Similarly, an agency must clear its RPL before making appointments under 
a direct-hire authority, which includes the Outstanding Scholar 
provision, or delegated examining authority.

[60 FR 3059, Jan. 13, 1995]



Sec.  330.206  Job consideration.

    (a)(1) An eligible employee under Sec.  330.203 is entitled to 
consideration for positions in the commuting area for which qualified 
and available that are at no higher grade (or equivalent), have no 
greater promotion potential than the position from which the employee 
was or will be separated, and have the same type of work schedule. In 
addition, an employee is entitled to consideration for any higher grade 
previously held on a nontemporary basis in the competitive service from 
which the employee was demoted under part 351 of this chapter.
    (2) An employee is considered for positions having the same type of 
work schedule as the position from which separated except that the 
agency, at its discretion, may adopt provisions permitting employees to 
request consideration for other work schedules in addition to that 
formerly held.
    (3) An eligible employee may be entered on the RPL only for the 
commuting area in which separated and may not apply for the RPL in any 
other location, except as provided in paragraph (a)(4) of this section.
    (4) Each eligible employee in a position in Alaska or overseas is 
entitled to apply for the RPL for the commuting area in which separated, 
unless:
    (i) The employee leaves that area and makes a written request for 
entry on the RPL for the commuting area from which he or she was 
employed for Alaskan or overseas service, or in another area within the 
United States outside of Alaska that is mutually acceptable to the 
individual and the agency; or
    (ii) The agency has a general program for rotating employees between 
overseas areas and the United States and the employee's immediately 
preceding overseas service or residence, combined with prospective 
overseas service under available appointments, would exceed the maximum 
duration of an overseas duty tour in the agency rotation program. In 
this case, the employee may apply for one other commuting area within 
the United States that is mututally acceptable to the individual and the 
agency.
    (b)(1) An eligible employee under Sec.  330.205 is placed on the RPL 
for reemployment consideration for his or her former position or an 
equivalent one. If the individual cannot be placed in such a position in 
the former commuting area, he or she is entitled to priority 
consideration for an equivalent position elsewhere in the agency at the 
time and in a manner as the agency determines will provide the 
individual with maximum opportunities for consideration.
    (2) In lieu of expanded consideration in other locations, an 
individual who cannot be placed in his or her former or equivalent 
position in the former commuting area may elect to be considered for the 
next best available position in the former commuting area.

[53 FR 45067, Nov. 8, 1988, as amended at 60 FR 3060, Jan. 13, 1995]



Sec.  330.207  Selection from RPL.

    (a) Options. An agency must adopt one of the selection methods in 
paragraphs (b) and (c) of this section for use in operating a single 
RPL. The agency may adopt the same method for each RPL it establishes or 
may vary the method by location, but it must adopt a written policy for 
each RPL it establishes and maintains. After a method is adopted, the 
agency uses that method in filling all positions. While an agency may 
not vary the method used by individual vacancy, it may at any time 
switch selection methods for employees enrolled on the RPL.

[[Page 202]]

    (b) Retention standing order. For each vacancy to be filled, the 
agency shall place qualified individuals in group and subgroup order in 
accordance with part 351 of this chapter. In making a selection, an 
agency may not pass over an individual in group I to select from group 
II and, within a group, may not pass over an individual in a higher 
subgroup to select from a lower subgroup. Within a subgroup, an agency 
may select an individual without regard to order of retention standing. 
A person has no greater priority for the grade or position from which 
separated than any other person on the list who is qualified for the 
vacancy. An agency may make an exception to this selection order only in 
accordance with paragraph (d) of this section.
    (c)(1) Rating and ranking. For each vacancy to be filled, the agency 
rates qualified individuals according to their job experience and 
education. To do this, an agency shall develop job-related evaluation 
procedures capable of distinguishing differences in qualifications 
measured, which shall be applied in a fair and consistent manner. Based 
on these procedures, the agency shall assign qualified individuals a 
numerical score of at least 70 on a scale of 100. The agency shall grant 
5 additional points to preference eligibles under section 2108(3)(A) and 
(B) of title 5, United States Code, and 10 additional points to 
preference eligibles under section 2108(3) (C) through (G) of that 
title.
    (2) Individuals with an eligible numerical score shall be ranked in 
the following order:
    (i) Preference eligibles having a compensable service-connected 
disability of 10 percent or more in the order of their augmented 
ratings, unless the position to be filled is a professional position at 
and above the GS-9 level, or equivalent; and
    (ii) All other qualified candidates in the order of their augmented 
ratings. At each score, qualified candidates eligible for 10-point 
preference will be entered ahead of all other eligibles, and those 
eligible for 5-point preference will be entered ahead of those not 
eligible for veteran preference.
    (3) An agency must make its selection from not more than the highest 
three candidates available and may pass over a preference eligible to 
select a nonpreference eligible only as an exception under paragraph (d) 
of this section.
    (d) Exceptions. An agency may make an exception to this subpart and 
appoint an individual who is not on the RPL or has lower standing than 
others on the RPL. The exception may be granted only when necessary to 
obtain an employee for duties that cannot be taken over without undue 
interruption (as defined in Sec.  351.203 of this chapter) to the agency 
by an individual who is on the RPL or has higher standing than the one 
appointed. The agency shall notify, in writing, each individual on the 
RPL who is adversely affected by an appointment under this paragraph of 
the reasons for the exception and of the right of appeal to the Merit 
Systems Protection Board.

[53 FR 45067, Nov. 8, 1988, as amended at 60 FR 3060, Jan. 13, 1995]



Sec.  330.208  Qualification requirements.

    (a) Subject to applicable requirements of law and this chapter, an 
individual is considered qualified for a position if he or she:
    (1) Meets OPM-established or approved qualification standards and 
requirements for the position, including any minimum educational 
requirements, and any selection placement factors established by the 
agency;
    (2) Is physically qualified, with reasonable accommodation where 
appropriate, to perform the duties of the position; and
    (3) Meets any special qualifying condition that OPM has approved for 
the position.
    (4) Meets any other applicable requirement for appointment to the 
competitive service.
    (b) An agency may make an exception to the qualification standard 
and adopt an alternative standard under the following conditions (this 
provision does not authorize waiver of the selection order required by 
Sec.  330.207):
    (1) The exception is applied consistently and equitably in filling a 
position;
    (2) The individual meets any minimum educational requirement for the 
position; and

[[Page 203]]

    (3) The agency determines that the individual has the capacity, 
adaptability, and special skills needed to satisfactorily perform the 
duties and responsibilities of the position.
    (c) The sex of an individual may not be considered in determining 
qualifications for a position, except positions for which OPM has 
determined certification of eligibles by sex is justified.

[53 FR 45067, Nov. 8, 1988, as amended at 60 FR 3061, Jan. 13, 1995]



Sec.  330.209  Appeals.

    An individual who believes that his or her reemployment priority 
rights under this subpart have been violated because of the employment 
of another person who otherwise could not have been appointed properly 
may appeal to the Merit Systems Protection Board under the provisions of 
the Board's regulations.

Subpart C [Reserved]



         Subpart D_Positions Restricted to Preference Eligibles

    Source: 65 FR 52642, Aug. 30, 2000, unless otherwise noted.



Sec.  330.401  Competitive examination.

    In each entrance examination for the positions of custodian, 
elevator operator, guard, and messenger (referred to in this subpart as 
restricted positions), OPM shall restrict competition to preference 
eligibles as long as preference eligibles are available.



Sec.  330.402  Direct recruitment.

    In direct recruitment by an agency under delegated authority, the 
agency shall fill each restricted position by the appointment of a 
preference eligible as long as preference eligibles are available.



Sec.  330.403  Noncompetitive actions.

    An agency may fill a restricted position by the appointment by 
noncompetitive action of a nonpreference eligible only when authorized 
by OPM.



Sec.  330.404  Displacement of preference eligibles occupying restricted positions in contracting out situations.

    An individual agency and OPM both have additional responsibilities 
when the agency decides, in accordance with the Office of Management and 
Budget (OMB) Circular A-76, to contract out the work of a preference 
eligible who holds a restricted position. These additional 
responsibilities are applicable if a preference eligible holds a 
competitive service position that is:
    (a) A restricted position as designated in 5 U.S.C. 3310 and Sec.  
330.401; and
    (b) In retention tenure group tenure I or II, as defined in Sec.  
351.501(b) (1) and (2) of this chapter.



Sec.  330.405  Agency placement assistance.

    An agency that separates a preference eligible from a restricted 
position by reduction in force under part 351 of this chapter because of 
a contracting out situation covered in Sec.  330.404 must, consistent 
with Sec.  330.602, advise the employee of the opportunity to 
participate in available career transition programs. The agency is also 
responsible for:
    (a) Applying OMB's policy directives on the preference eligibles' 
right of first refusal for positions that are contracted out to the 
private sector; and
    (b) Cooperating with State units as designated or created under 
title I of the Workforce Investment Act of 1998, to retrain displaced 
preference eligibles for other continuing positions.

[65 FR 52642, Aug. 30, 2000, as amended at 65 FR 64133, Oct. 26, 2000]



Sec.  330.406  OPM placement assistance.

    OPM's responsibilities include:
    (a) Assisting agencies in operating positive placement programs, 
such as the Career Transition Assistance Plan, which is authorized by 
subpart F of this part;
    (b) Providing interagency selection priority through the Interagency 
Career Transition Assistance Plan, which is authorized by subpart G of 
this part; and
    (c) Encouraging cooperation between local Federal activities to 
assist these

[[Page 204]]

displaced preference eligibles in applying for other Federal positions, 
including positions with the U.S. Postal Service.



Sec.  330.407  Eligibility for the Interagency Career Transition Assistance Plan.

    (a) A preference eligible who is separated from a restricted 
position by reduction in force under part 351 of this chapter because of 
a contracting out situation covered in Sec.  330.404 has interagency 
selection priority under the Interagency Career Transition Assistance 
Plan, which is authorized by subpart G of this part. Section 330.704 
covers the general eligibility requirements for the Interagency Career 
Transition Assistance Plan.
    (b) A preference eligible covered by this subpart is eligible for 
the Interagency Career Transition Assistance Plan for 2 years following 
separation by reduction in force from a restricted position.



        Subpart E_Restrictions To Protect Competitive Principles



Sec.  330.501  General restriction on movement after competitive appointment.

    An agency may promote an employee or reassign him to a different 
line of work, or to a different geographical area, and it may transfer a 
present employee or reinstate a former employee of the same or another 
agency to a higher grade or different line of work, or to a different 
geographical area, only after 3 months have elapsed since the employee's 
latest nontemporary competitive appointment. OPM may waive the 
restriction against movement to a different geographical area when it is 
satisfied that the waiver is consistent with the principles of open 
competition.

[37 FR 11965, June 16, 1972]



Sec.  330.502  [Reserved]



Sec.  330.503  Assessment of compliance with competitive principles.

    As one factor in assessing an agency's compliance with competitive 
principles, OPM will consider the relationship between appointments from 
competitive examinations and subsequent position changes. When OPM finds 
that an agency has not complied with competitive principles, either in 
an individual case or on a program basis, OPM will require the agency to 
take appropriate corrective action.

[37 FR 11965, June 16, 1972]



Sec.  330.504  Special restrictions after appointment under Part-time Direct Hire Program.

    (a) A person hired under the Part-time Direct Hire Program may not 
be changed to full time through:
    (1) Position change;
    (2) Work schedule change;
    (3) Transfer; or
    (4) Reinstatement based on appointment under the Part-time Direct 
Hire Program until he or she has completed at least 1 calendar year of 
service in a part-time position under the program.
    (b) In the event of a break in service, the service requirement in 
paragraph (a) of this section is computed on the basis of the employee's 
total time in a pay status, 365 days equaling 1 calendar year.
    (c) Agencies may waive this restriction only in the event of extreme 
personal hardship to the employee.

[45 FR 65493, Oct. 3, 1980]



Sec.  330.505  Nonapplicability to persons within reach on registers.

    The restrictions in this subpart do not apply to a person who is 
within reach on a register for competitive appointment to the position 
to be filled.

[34 FR 2649, Feb. 27, 1969]



  Subpart F_Agency Career Transition Assistance Plans (CTAP) for Local 
                     Surplus and Displaced Employees

    Editorial Note: Nomenclature changes to subpart F of part 330 appear 
at 70 FR 72067, Dec. 1, 2005.

    Authority: Presidential memorandum dated September 12, 1995, 
entitled ``Career Transition Assistance for Federal Employees''.

    Source: 62 FR 31320, June 9, 1997, unless otherwise noted.

[[Page 205]]



Sec.  330.601  Purpose.

    (a) This subpart implements the President's memorandum of September 
12, 1995, to establish agency Career Transition Assistance Plans for 
Federal employees during a period of severe Federal downsizing. It is 
the policy of the United States Government to provide services to help 
surplus and displaced Federal employees take charge of their own careers 
and find other job offers, either within the Federal Government or in 
the private sector.
    (b) These regulations set forth minimum criteria for agency Career 
Transition Assistance Plans. Consistent with the regulations, agencies 
may supplement these provisions to expand career transition 
opportunities to their surplus and displaced workers at their 
discretion.
    (c) Sections 330.602(a)(2) and 330.604 through 330.609 do not apply 
to the Department of Defense Priority Placement Program.
    (d) New negotiated agreements and agreements which have expired 
since February 29, 1996, the effective date of the interim regulations, 
will be subject to the provisions set forth in this part.



Sec.  330.602  Agency plans.

    (a) Each agency will establish a Career Transition Assistance Plan 
(CTAP) to actively assist its surplus and displaced employees. A copy of 
the final plan and any additional modified plans will be sent to OPM as 
approved by the agency/department head or deputy or under secretary. An 
agency plan will include:
    (1) Policies to provide career transition services to all surplus 
and displaced agency employees affected by downsizing or restructuring, 
including employees in the excepted service and the Senior Executive 
Service, which include the following:
    (i) Types of career transition services to be provided by the 
agency;
    (ii) Use of excused absence for employees to use the services and 
facilities;
    (iii) Access to services or facilities after separation;
    (iv) The requirement for a specific orientation session for surplus 
and displaced employees on the use of career transition services and the 
eligibility requirements for selection priority under CTAP and ICTAP. 
The orientation session must include information on how to apply for 
vacancies under the CTAP and ICTAP (if applicable);
    (v) Retraining to be provided to employees;
    (vi) Access by employees, including those with disabilities, to 
services in headquarters, field offices, and remote site locations;
    (vii) Access to resource information on other forms of Federal, 
state, and local assistance which are available to support career 
transition for employees with disabilities;
    (viii) Role of employee assistance programs in providing services; 
and
    (ix) Designation of agency components, if the agency exercises its 
discretion under Sec.  330.606(d)(24).
    (2) Policies to provide special selection priority to well-qualified 
surplus and/or displaced agency employees, as defined by Sec.  330.604 
(c) and (i), who apply for agency vacancies in the local commuting area, 
before selecting any other candidate from either within or outside the 
agency, and agency procedures for reviewing qualification issues; and
    (3) Operation of the agency's Reemployment Priority List under 
subpart B of 5 CFR part 330.
    (b) Each agency is responsible for assuring that its Career 
Transition Assistance Plan and the provisions of these subparts are 
uniformly and consistently applied to all employees.



Sec.  330.603  [Reserved]



Sec.  330.604  Definitions.

    For purposes of this subpart:
    (a) Agency means an Executive Department, a Government corporation, 
and an independent establishment as cited in 5 U.S.C. 105. For the 
purposes of this program, the term ``agency'' includes all components of 
an organization, including its Office of Inspector General.
    (b) Component means the first major subdivision of an agency, that 
is separately organized and clearly distinguished from other components 
in work function and operation.
    (c) Displaced employee means:

[[Page 206]]

    (1) A current career or career conditional competitive service 
employee in tenure group 1 or 2, at grade levels GS-15 or equivalent and 
below, who has received a specific reduction in force (RIF) separation 
notice or notice of proposed removal for declining a directed 
reassignment or transfer of function outside of the local commuting 
area; or,
    (2) A current Executive Branch agency employee in the excepted 
service, serving on an appointment without time limit, at grade levels 
GS-15 or equivalent and below, who has been given noncompetitive 
appointment eligibility and selection priority by statute for positions 
in the competitive service, and who is in receipt of a reduction in 
force separation notice or notice of proposed removal for declining a 
transfer of function or directed reassignment outside of the local 
commuting area.
    (d) Eligible employee means a surplus or displaced employee who 
meets the conditions set forth in Sec.  330.605(a).
    (e) Local commuting area means the geographic area that usually 
constitutes one area for employment purposes as determined by the 
agency. It includes any population center (or two or more neighboring 
ones) and the surrounding localities in which people live and can 
reasonably be expected to travel back and forth daily to their usual 
employment.
    (f) Reorganization means the planned elimination or redistribution 
of work functions within an agency, normally announced in writing.
    (g) Special selection priority means that, except as provided by 
Sec.  330.606(d), surplus and/or displaced employees eligible under this 
subpart must be selected over any other candidate for vacancies in the 
local commuting area for which they apply and are found well-qualified.
    (h) Suitability means determinations based on an individual's 
character or conduct that may impact the efficiency of the service by 
jeopardizing an agency's accomplishment of its duties or 
responsibilities, or by interfering with or preventing effective service 
in the competitive, excepted or SES position applied for or employed in, 
and determinations that there is a statutory or regulatory bar to 
employment.
    (i) Surplus employee means:
    (1) A current agency employee serving under an appointment in the 
competitive service, in tenure group 1 or 2, at grade levels GS-15 or 
equivalent and below, who has received a certificate of expected 
separation or other official certification issued by the agency 
indicating that the position is surplus, for example, a notice of 
position abolishment, or a notice stating that the employee is eligible 
for discontinued service retirement; or,
    (2) A current Executive Branch agency employee serving on an 
excepted service appointment without time limit, at grade levels GS-15 
or equivalent and below, who has been issued a certificate of expected 
separation or other official agency certification indicating that his or 
her position is surplus, for example, a notice of position abolishment 
or a notice stating that the employee is eligible for discontinued 
service retirement, and who has been conferred noncompetitive 
appointment eligibility and special selection priority by statute for 
positions in the competitive service; and
    (3) At an agency's discretion, a current Executive Branch employee 
serving on a Schedule A or B excepted appointment without time limit, at 
grade levels GS-15 or equivalent and below, and who is in receipt of a 
certificate of expected separation or other official agency 
certification indicating that his or her job is surplus, for example, a 
notice of position abolishment, or an official notice stating that the 
employee is eligible for discontinued service retirement; or an employee 
who has received a RIF notice of separation, or a notice of proposed 
removal for declining a transfer of function or directed reassignment 
outside of the local commuting area. Such employee may exercise 
selection priority for permanent excepted service positions within the 
agency's local commuting area, provided the position to which appointed 
has the same appointing authority, i.e., Schedule A or B, as the 
position from which being separated.
    (j) Vacancy means a competitive service position filled for a total 
of 121 days or more, including all extensions,

[[Page 207]]

which the agency is filling, regardless of whether the agency issues a 
specific vacancy announcement.
    (k) Well-qualified employee means an eligible employee who possesses 
the knowledge, skills, and abilities which clearly exceed the minimum 
qualification requirements for the position. A well-qualified employee 
will not necessarily meet the agency's definition of ``highly or best 
qualified,'' when evaluated against other candidates who apply for a 
particular vacancy, but must satisfy the following criteria, as 
determined and consistently applied by the agency:
    (1) Meets the basic qualification standards and eligibility 
requirements for the position, including any medical qualifications, 
suitability, and minimum educational and experience requirements; and
    (2) Satisfies one of the following qualifications requirements:
    (i) Meets all selective factors where applicable. Meets appropriate 
quality rating factor levels as determined by the agency. Selective and 
quality ranking factors cannot be so restrictive that they run counter 
to the goal of placing displaced employees. In the absence of selective 
and quality ranking factors, selecting officials will document the job-
related reason(s) the eligible employee is or is not considered to be 
well qualified; or
    (ii) Is rated by the agency to be above minimally qualified in 
accordance with the agency's specific rating and ranking process. 
Generally, this means that the individual may or may not meet the 
agency's test for ``highly qualified,'' but would in fact, exceed the 
minimum qualifications for the position;
    (3) Is physically qualified, with reasonable accommodation where 
appropriate, to perform the essential duties of the position;
    (4) Meets any special qualifying condition(s) that OPM has approved 
for the position; and
    (5) Is able to satisfactorily perform the duties of the position 
upon entry.



Sec.  330.605  Eligibility.

    (a) To be eligible for the special selection priority, an individual 
must meet all of the following conditions:
    (1) Is a surplus or displaced employee (still on the agency rolls) 
as defined in Sec.  330.604 (c) and (i);
    (2) Has a current performance rating of record of at least fully 
successful or equivalent;
    (3) Applies for a vacancy that is at or below the grade level from 
which the employee may be or is being separated, that does not have a 
greater promotion potential than the position from which the employee 
may be or is being separated;
    (4) Occupies a position in the same local commuting area of the 
vacancy; or, at the agency's discretion, occupies a position beyond the 
local commuting area. An eligible agency applicant outside of the local 
commuting area, however, can only exercise selection priority when there 
are no eligible surplus and displaced agency employees within the local 
commuting area who apply and are found well-qualified;
    (5) Files an application for a specific vacancy within the time 
frames established by the agency, and provides proof of eligibility as 
required under Sec.  330.608(a)(2); and
    (6) Is determined by the agency to be well-qualified for the 
specific vacancy.
    (b) Eligibility for special selection priority begins on the date 
the agency issues the employee a reduction in force separation notice, 
certificate of expected separation, notice of proposed separation for 
declining a directed reassignment or transfer of function outside of the 
local commuting area, or other official agency certification.
    (c) Eligibility expires on the earliest of:
    (1) The RIF separation date, the date of the employee's resignation, 
retirement, or separation from the agency (including separation under 
adverse action procedures for declining a directed reassignment or 
transfer of function or similar relocation to another local commuting 
area).
    (2) Cancellation of the RIF separation notice, certificate of 
expected separation, notice of proposed removal for declining a directed 
reassignment or transfer of function outside of the commuting area, or 
other official agency certification identifying the employee as surplus; 
or
    (3) When an eligible employee receives a career, career-conditional, 
or

[[Page 208]]

excepted appointment without time limit in any agency at any grade 
level; and
    (4) Within an agency, and at the agency's discretion, when an 
eligible employee declines a career, career conditional, or excepted 
appointment (without time limit), for which the employee has applied and 
been rated well-qualified.

[62 FR 31320, June 9, 1997, as amended at 64 FR 40509, July 27, 1999]



Sec.  330.606  Order of selection for filling vacancies from within the agency.

    (a) Except as provided in paragraph (d) of this section, when 
filling a vacancy as defined in Sec.  330.604(j), an agency must select 
an employee eligible under Sec.  330.605 of this subpart before 
selecting any other candidate from within or outside the agency, unless 
the agency can show that another employee would otherwise be separated 
by reduction in force. In addition, agencies may not procure temporary 
help services under 5 CFR part 300, subpart E, in lieu of appointing a 
surplus or displaced Federal employee as required by subparts F and G of 
this chapter.
    (b) Once the agency has met its obligation to select employees 
eligible under its CTAP, it is free to select any other competitive 
service tenure group 1 or 2 candidate from within its workforce, under 
appropriate procedures. An agency may provide selection priority to 
surplus and displaced agency employees from another commuting area after 
it has discharged its obligation to eligible surplus and displaced 
agency employees from within the local commuting area.
    (c) When an agency selects a candidate from outside of its 
workforce, the agency is subject to the order of selection prescribed in 
Sec.  330.705.
    (d) The following are not covered under this subpart:
    (1) Actions taken under 5 CFR part 335, including reassignments, 
changes to lower grade, or promotions, when no employees eligible under 
this subpart apply;
    (2) Reemployment of a former agency employee exercising regulatory 
or statutory reemployment rights, including the reemployment of injured 
workers who have either been restored to earning capacity by the Office 
of Workers' Compensation Programs (OWCP), or who have received a notice 
that their compensation benefits will cease because of recovery from the 
disabling injury or illness;
    (3) Position changes resulting from disciplinary actions;
    (4) Temporary appointments of under 121 days (including all 
extensions);
    (5) Exchange of positions between or among agency employees, when 
the actions involve no increase in grade or promotion potential, i.e., 
job swaps;
    (6) Conversion of an employee of the same agency who is serving on 
an excepted appointment which confers eligibility for noncompetitive 
conversion into the competitive service, e.g., conversion of a veterans' 
recruitment appointee to a career conditional appointment under Sec.  
315.705;
    (7) An action taken under part 351 of this chapter;
    (8) Non-competitive placement of an employee into a different 
position as a result of a formal reorganization, when the former 
position ceases to exist, and no actual vacancy results;
    (9) Assignments made under the Intergovernmental Personnel Act (IPA) 
as provided in part 334 of this chapter;
    (10) The filling of a position through an excepted appointment;
    (11) Details;
    (12) Time-limited promotions of under 121 days, including all 
extensions;
    (13) Noncompetitive movement of surplus or displaced employees 
within the agency, and within the same local commuting area;
    (14) Movement of excepted service employees within an agency;
    (15) A placement under 5 U.S.C. 8337 or 8451 to allow continued 
employment of an employee who has become unable to provide useful and 
efficient service in his or her current position because of a medical 
condition;
    (16) A placement that is a ``reasonable offer'' as defined in 5 
U.S.C. 8336(d) and 8414(b);
    (17) Career ladder promotions or position changes resulting from 
reclassification actions, e.g., accretion of duties, or application of 
new position classification standards;

[[Page 209]]

    (18) Recall of seasonal or intermittent employees from nonpay 
status;
    (19) The internal placement of an injured or disabled worker whose 
agency has identified a position for which he or she can be reasonably 
accommodated;
    (20) An action taken by the agency head or his designee pursuant to 
the settlement of a formal complaint, grievance, appeal, or other 
litigation;
    (21) An action taken to return an employee to his or her original or 
similar position during a supervisory probationary period;
    (22) The retention of individuals whose positions are brought into 
the competitive service under Sec.  316.701 or Sec.  316.702 of this 
chapter and subsequent conversion, when applicable, under Sec.  315.701 
of this chapter;
    (23) The retention of an employee for whom OPM has approved a rule 
5.1 variation;
    (24) At the agency's discretion, the selection of an employee from 
within a component of an agency within the local commuting area, after 
all eligible surplus and displaced applicants of that component who are 
eligible under CTAP within the local commuting area have been accorded 
selection priority;
    (25) The reemployment of a former agency employee who retired under 
a formal trial retirement and reemployment program, and who seeks 
reemployment with that agency under the program's provisions, and within 
the program's applicable time limits;
    (26) Extensions of temporary or term actions, up to the full period 
allowed, provided that the original action, upon which the extension is 
based, was made on or before February 29, 1996; or for actions initially 
made after February 29, 1996, the original vacancy announcement must 
have specified that the position was open to CTAP candidates and that if 
they were found well-qualified, would be afforded selection priority. 
The original announcement must have stated that an extension was 
possible without further announcement;
    (27) Noncompetitive movement of employees between agencies as a 
result of interagency reorganization, interagency transfer of function, 
or interagency mass transfer; and
    (28) The placement of a member of the Senior Executive Service under 
5 U.S.C. 3594.
    (29) The voluntary transfer of employees from one agency to another 
under a Memorandum of Understanding or similar type of agreement when 
both agencies and the affected employees agree to the transfer.
    (30) The reassignment of an employee whose position description or 
other written mobility agreement provides for reassignments outside the 
commuting area as part of a planned rotational program within the 
agency.

[62 FR 31320, June 9, 1997, as amended at 64 FR 40509, July 27, 1999]



Sec.  330.607  Notification of surplus and displaced employees.

    (a) In addition to meeting the requirements of Sec.  
330.602(a)(1)(iv), at the time it issues a specific RIF separation 
notice, certificate of expected separation, or other official agency 
certification that identifies an employee as being likely to be 
separated by RIF, or by adverse action procedures for declining a 
directed reassignment or transfer of function outside of the local 
commuting area, an agency must give each of its eligible employees 
information in writing about the special selection priority available to 
them under the agency's Career Transition Assistance Plan. Such 
information must contain guidance to the employee on how to apply for 
vacancies under the CTAP, and what documentation is generally required 
as proof of eligibility.
    (b) Agencies must take reasonable steps to ensure eligible employees 
are notified of all vacancies the agency is filling in locations where 
there are CTAP eligibles, and what is required for them to be determined 
well-qualified for the vacancies. Vacancy announcements within an agency 
must contain information on how eligible employees within the agency can 
apply, what proof of eligibility is required, and the agency's 
definition of ``well-qualified''. If there are no CTAP eligibles in a 
local commuting area, the agency may document this fact as an 
alternative to posting the vacancy under the CTAP program.
    (c) Each agency is required to advise, in writing, their surplus and 
displaced

[[Page 210]]

employees who apply for specific vacancies within its local commuting 
area of the results of their application, and whether or not they were 
found well-qualified. If they are not found well-qualified, such notice 
must include information on the results of an independent, second review 
conducted by the agency. If an applicant is found well-qualified, and 
another well-qualified surplus or displaced candidate is selected, the 
applicant must be so advised.

[62 FR 31320, June 9, 1997, as amended at 64 FR 40509, July 27, 1999; 65 
FR 47829, Aug. 4, 2000]



Sec.  330.608  Application and selection.

    (a) Application. (1) To receive this special selection priority, an 
eligible employee must apply for a specific agency vacancy in the same 
local commuting area as the position the employee occupies within the 
prescribed time frames, attach the appropriate proof of eligibility as 
described in paragraph (a)(2) of this section, and be determined well-
qualified by the agency for the specific vacancy.
    (2) Employees may submit the following as proof of eligibility for 
the special selection priority:
    (i) RIF separation notice or notice of proposed removal for 
declining a directed reassignment or transfer of function outside the 
local commuting area;
    (ii) Certificate of expected separation or other official notice 
from the agency indicating that the employee is surplus or eligible for 
discontinued service retirement; or
    (iii) Other official agency certification identifying the employee 
as being in a surplus organization or occupation.
    (b) Selection. An agency may decide the specific order of selection 
of its eligible employees within the provisions set forth in Sec.  
330.606(a) (e.g., the agency may decide to select displaced employees 
before surplus employees or may select surplus and/or displaced 
employees from within a particular component of the agency before 
selecting surplus and/or displaced employees from another component of 
the agency).
    (c) An agency cannot select any other candidate from within or 
outside the agency if eligible employees are available for the vacancy 
or vacancies.
    (d) If two or more eligible employees apply for a vacancy and are 
determined to be well-qualified, any of these eligible employees may be 
selected.
    (e) If no eligible employees apply or none is deemed well-qualified, 
the agency may select another agency employee without regard to this 
subpart.



Sec.  330.609  Qualification reviews.

    Agencies will ensure that a documented, independent second review is 
conducted whenever an otherwise eligible employee is determined to be 
not well-qualified. The applicant must be advised in writing of the 
results of the second review.



Sec.  330.610  [Reserved]



Sec.  330.611  Oversight.

    OPM provides advice and assistance to agencies in implementing their 
Career Transition Assistance Programs. OPM is also responsible for 
oversight of agency CTAPs and may conduct reviews of the plans at any 
time.



 Subpart G_Interagency Career Transition Assistance Plan for Displaced 
                                Employees

    Editorial Note: Nomenclature changes to subpart G of part 330 appear 
at 70 FR 72067, Dec. 1, 2005.

    Authority: Presidential memorandum dated September 12, 1995, 
entitled ``Career Transition Assistance for Federal Employees''.

    Source: 62 FR 31323, June 9, 1997, unless otherwise noted.



Sec.  330.701  Purpose.

    (a) This subpart implements the President's memorandum of September 
12, 1995, to establish a special interagency career transition 
assistance program for Federal employees during a period of severe 
Federal downsizing.
    (b) This subpart is effective July 9, 1997.
    (c) The provisions of the Reemployment Priority List (RPL) set forth 
in subpart B of this part will remain in effect during the period of 
severe Federal downsizing. When an agency considers

[[Page 211]]

candidates from outside the agency for vacancies, registrants in an 
agency's RPL have priority for selection over employees eligible under 
this subpart in accordance with Sec.  330.705.
    (d) This subpart applies only when agencies are making selections 
from outside their workforce, and does not prohibit movement within an 
agency, as permitted by subpart F of this part.



Sec.  330.702  [Reserved]



Sec.  330.703  Definitions.

    For the purposes of this subpart:
    (a) Agency has the meaning given in Sec.  330.604(a).
    (b) Displaced employee means:
    (1) A current career or career-conditional competitive service 
employee, in tenure group 1 or 2, at grade levels GS-15 or equivalent 
and below, who has received a specific RIF separation notice, or a 
notice of proposed removal for declining a directed reassignment or 
transfer of function outside of the local commuting area;
    (2) A former career or career-conditional competitive service 
employee, in tenure group 1 or 2, at grade levels GS-15 or equivalent 
and below, who was separated through reduction in force, or removed for 
declining a directed reassignment or transfer of function outside of the 
local commuting area;
    (3) A former career or career-conditional employee who was separated 
because of a compensable injury or illness as provided under the 
provisions of subchapter I of chapter 81 of title 5, United States Code, 
whose compensation has been terminated and whose former agency is unable 
to place the individual as required by Sec.  353.110(b) of this chapter;
    (4) A former career or career-conditional competitive service 
employee, in tenure group 1 or 2, who retired with a disability under 
sections 8337 or 8451 of title 5, United States Code, whose disability 
annuity has been or is being terminated;
    (5) A former career or career-conditional competitive service 
employee, in tenure group 1 or 2, at grades GS-15 level or equivalent or 
below, who received a RIF separation notice, and who retired on the 
effective date of the reduction in force or under the discontinued 
service retirement option;
    (6) A former Military Reserve Technician or National Guard 
Technician who is receiving a special disability retirement annuity from 
OPM under section 8337(h) or 8456 of title 5 United States Code, as 
described in subpart H of this part;
    (7) A current Executive Branch agency employee in the excepted 
service, serving on an appointment without time limit, at grade levels 
GS-15 or equivalent and below, who has been given noncompetitive 
appointment eligibility and selection priority by statute for positions 
in the competitive service, and who is in receipt of a reduction in 
force separation notice or notice of proposed removal for declining a 
transfer of function or directed reassignment outside of the local 
commuting area; or
    (8) A former Executive Branch agency employee in the excepted 
service, who served on an appointment without time limit, at grade 
levels GS-15 or equivalent and below, who has been given noncompetitive 
appointment eligibility and selection priority by statute for positions 
in the competitive service, and who has been separated through reduction 
in force or removed for declining a transfer of function or directed 
reassignment outside of the local commuting area.
    (c) Eligible employee means a displaced employee who meets the 
conditions set forth in Sec.  330.704(a).
    (d) Local commuting area has the meaning given in Sec.  330.604(e).
    (e) Special selection priority has the meaning given in Sec.  
330.604(g).
    (f) Vacancy has the meaning given in Sec.  330.604(j).
    (g) Well-qualified employee has the meaning given in Sec.  
330.604(k).

[62 FR 31323, June 9, 1997, as amended at 64 FR 40509, July 27, 1999]



Sec.  330.704  Eligibility.

    (a) To be eligible for the special selection priority, an individual 
must meet all of the following conditions:
    (1) Is a displaced employee as defined in Sec.  330.703(b);
    (2) Has a current (or a last) performance rating of record of at 
least fully successful or equivalent (except for

[[Page 212]]

those eligible under Sec.  330.703(b)(3), (b)(4), and (b)(6);
    (3) Applies for a vacancy at or below the grade level from which the 
employee has been or is being separated, that does not have a greater 
promotion potential than the position from which the employee has been 
or is being separated;
    (4) Occupies, or was displaced from a position in the same local 
commuting area of the vacancy;
    (5) Files an application for a specific vacancy within the time 
frames established by the agency, and provides proof of eligibility 
required under Sec.  330.708(a)(2); and
    (6) Is determined by the agency to be well-qualified for the 
specific position.
    (b) Eligibility for special selection priority begins:
    (1) On the date the agency issues the RIF separation notice;
    (2) On the date an agency certifies that it cannot place an employee 
eligible under Sec.  330.703(b)(3);
    (3) On the date an employee eligible under Sec.  330.703(b)(4) is 
notified that his or her disability annuity has been or is being 
terminated;
    (4) On the date the agency issues a formal notice of proposed 
separation to an employee for declining a transfer of function or 
directed reassignment outside the local commuting area; or
    (5) On the date the National Guard Bureau or Military Department 
certifies that an employee under Sec.  330.703(b)(6) has retired under 5 
U.S.C. 8337(h) or 8456.
    (c) Eligibility expires:
    (1) 1 year after separation, except for those employees separated on 
or after September 12, 1995, and prior to February 29, 1996. For these 
employees, eligibility expired February 28, 1997;
    (2) 1 year after an agency certifies that an individual under Sec.  
330.703(b)(3) cannot be placed;
    (3) 1 year after an individual under Sec.  330.703(b)(4) receives 
notification that his/her disability annuity has been or will be 
terminated;
    (4) When the employee receives a career, career-conditional, or 
excepted appointment without time limit in any agency at any grade 
level;
    (5) When the employee no longer meets the eligibility requirements 
set forth in paragraph (a) of this section (e.g., the employee is no 
longer being separated by RIF, or under adverse action procedures for 
declining a transfer of function or directed reassignment outside the 
local commuting area, or separates by resignation or non-discontinued 
service retirement prior to the RIF effective date); or
    (6) At an agency's discretion, when an eligible employee declines a 
career, career conditional, or excepted appointment (without time 
limit), for which the employee has applied and been rated well-
qualified; or upon the failure of the applicant to respond within a 
reasonable period of time to an offer or official inquiry of 
availability.
    (7) Two years after separation, for those employees eligible under 
Sec.  330.407(b).

[62 FR 31323, June 9, 1997, as amended at 65 FR 52642, Aug. 30, 2000]



Sec.  330.705  Order of selection in filling vacancies from outside the agency's workforce.

    (a) Except as provided in paragraph (c) of this section, when 
filling a vacancy from outside the agency's workforce an agency must 
select:
    (1) Current or former agency employees eligible under the agency's 
Reemployment Priority List described in subpart B of this part, then;
    (2) At the agency's option, any other former employee displaced from 
the agency (under appropriate selection procedures), then;
    (3) Any of the following three conditions:
    (i) Current or former Federal employees displaced from other 
agencies under this subpart;
    (ii) Current or former employees displaced from the District of 
Columbia Department of Corrections eligible under subpart K of this 
part, or
    (iii) Displaced Panama Canal Zone employees eligible under subpart L 
of this part.
    (4) Any other candidate (under appropriate selection procedures) 
(optional).
    (b) The following actions are subject to the above order of 
selection and are covered under this subpart:
    (1) Competitive appointments (e.g., from registers or delegated 
examining);

[[Page 213]]

    (2) Noncompetitive appointments to the competitive service (e.g., 
the types listed in part 315, subpart F of this chapter, as well as 
Outstanding Scholar and Bilingual/Bicultural appointments made under the 
authority of the Luevano consent decree);
    (3) Movement between agencies (e.g., transfer), except as provided 
for in paragraph (c)(8) of this section or part 351 of this chapter;
    (4) Reinstatements (except as provided for in paragraph (a)(2) of 
this section); and
    (5) Time-limited competitive appointments of 121 days or more, 
including all extensions, except as provided in (c)(11) of this section.
    (c) The following actions are not covered under this subpart:
    (1) Selections from an agency's internal Career Transition 
Assistance Plan or Reemployment Priority List as described in subparts F 
and B of this part respectively or any other internal agency movement of 
current agency employees;
    (2) Appointments of 10 point veteran preference eligibles (CP, CPS, 
and XP), if reached through an appropriate appointing authority;
    (3) Reemployment of former agency employees who have regulatory or 
statutory reemployment rights, including the reemployment of injured 
workers who have either been restored to earning capacity by the Office 
of Workers' Compensation Programs (OWCP), or who have received a notice 
that their compensation benefits will cease because of recovery from the 
disabling injury or illness;
    (4) Temporary appointments of under 121 days (including all 
extensions);
    (5) An action taken under part 351 of this chapter;
    (6) The filling of a position by an excepted appointment;
    (7) Conversion of an employee of the same agency who is serving on 
an excepted appointment that confers eligibility for noncompetitive 
appointment into the competitive service, e.g., conversion of a 
veterans' recruitment appointee to a career conditional appointment 
under Sec.  315.705 of this chapter;
    (8) Noncompetitive movement of employees between agencies as a 
result of interagency reorganization, interagency transfer of function, 
or interagency mass transfer;
    (9) The reemployment of a former agency employee who retired under a 
formal trial retirement and reemployment program, and who seeks 
reemployment with that agency under the program's provisions, and within 
the program's applicable time limits;
    (10) An action taken by the agency head or his or her designee 
pursuant to the settlement of a formal complaint, grievance, appeal, or 
other litigation;
    (11) Extensions of temporary or term actions, up to the full period 
allowed, provided that the original action, upon which the extension is 
based, was made on or before February 29, 1996 (the effective date of 
the interim regulations); or for actions initially made after February 
29, 1996, the original vacancy announcement must have specified that the 
position was open to ICTAP candidates, and that if they were found well-
qualified, would be afforded selection priority. The original 
announcement must have stated that an extension was possible without 
further announcement. This exception includes extensions granted by OPM 
to the 2 or 4 year limit allowed for temporary and term appointments, 
respectively;
    (12) The reappointment of former employees with their agency into 
hard-to-fill positions, the duties of which require unique skills and 
experience necessary to conduct a formal skills-based training program 
for the agency;
    (13) The retention of individuals whose positions are brought into 
the competitive service under Sec.  316.701 or Sec.  316.702 of this 
chapter and subsequent conversion, when applicable, under Sec.  315.701 
of this chapter;
    (14) The retention of an employee for whom OPM has approved a rule 
5.1 variation;
    (15) The placement of a member of the Senior Executive Service under 
5 U.S.C. 3594; and
    (16) Assignments made under the Intergovernmental Personnel Act 
(IPA) as provided in part 334 of this chapter.
    (17) Interagency details;

[[Page 214]]

    (18) Exchange of employees between agencies to avoid involuntary 
separations, under plans approved by OPM (i.e., interagency job swaps); 
and
    (19) Transfer or reinstatement of an individual who meets the 
eligibility requirements of Sec.  330.704 to a position having promotion 
potential no greater than the potential of a position the individual 
currently holds or previously held on a permanent basis in the 
competitive service and did not lose because of performance or conduct 
reasons.
    (20) The voluntary transfer of employees from one agency to another 
under a Memorandum of Understanding or similar type of agreement when 
both agencies and the affected employees agree to the transfer.

[62 FR 31323, June 9, 1997, as amended at 64 FR 40509, July 27, 1999; 65 
FR 47830, Aug. 4, 2000]



Sec.  330.706  Notification of displaced employees.

    (a) In addition to meeting the requirements of Sec.  
330.602(a)(1)(iv) and Sec.  330.607(a), at the time it issues a specific 
RIF separation notice or notice of proposed removal for declining a 
directed reassignment or transfer of function outside of the local 
commuting area, an agency must give each of its eligible employees 
information in writing about the special selection priority available to 
them under the Interagency Career Transition Assistance Plan. Such 
information must contain guidance to the employee on how to apply for 
vacancies under the ICTAP, and what documentation is generally required 
as proof of eligibility.
    (b) Agencies must take reasonable steps to ensure eligible employees 
are notified of all vacancies the agency is filling and what is required 
for them to be determined well-qualified for the vacancies.
    (c) Each agency is required to advise, in writing, ICTAP candidates 
who apply for specific vacancies within its local commuting area of the 
results of their application, and whether or not they were found well-
qualified. If they are not found well-qualified, such notice must 
include information on the results of an independent, second review 
conducted by the agency. If an applicant is found well-qualified, and 
another well-qualified surplus or displaced candidate is selected, the 
applicant must be so advised.



Sec.  330.707  Reporting vacancies to OPM.

    (a) Agencies are required to report all competitive service 
vacancies to OPM when accepting applications from outside the agency 
(including applications for temporary positions lasting 121 or more 
days), except when they elect to fill a position by the transfer or 
reassignment of an ICTAP eligible from another agency.
    (b) Content. Notice to OPM of job announcements must include the 
position title, location, pay plan and grade (or pay rate) of the vacant 
position; application deadline; and other information specified by OPM. 
In addition, for all positions reported, agencies are required to 
provide OPM with an electronic file of the complete vacancy announcement 
or recruiting bulletin, which must contain:
    (1) Title, series, pay plan, and grade (or pay rate);
    (2) Duty location;
    (3) Open and closing dates, plus any other information dealing with 
how application receipt will be controlled, such as the use of early 
cut-off dates;
    (4) Name of issuing agency and announcement number;
    (5) Qualification requirements, including knowledges, skills, and 
abilities;
    (6) Entrance pay;
    (7) Brief description of duties;
    (8) Basis of rating;
    (9) What to file;
    (10) Instructions on how to apply;
    (11) Information on how to claim veterans' preference, if 
applicable;
    (12) The agency's definition of well-qualified and information on 
how CTAP and/or ICTAP candidates may apply, including proof of 
eligibility required; and
    (13) Equal employment opportunity statement.
    (14) Reasonable accommodation statement.
    (i) An agency may use wording of its choice that conveys the 
availability of reasonable accommodation. An agency

[[Page 215]]

must not list types of medical conditions or impairments as appropriate 
for accommodation, and must keep the wording simple.
    (ii) We recommend using the following statement:

    ``This agency provides reasonable accommodation to applicants with 
disabilities where appropriate. If you need a reasonable accommodation 
for any part of the application and hiring process, please notify the 
agency. Determinations on requests for reasonable accommodation will be 
made on a case-by-case basis.''

[62 FR 31323, June 9, 1997, as amended at 66 FR 63906, Dec. 11, 2001]



Sec.  330.708  Application and selection.

    (a) Application. (1) To receive this special selection priority, 
eligible employees must apply directly to agencies for specific 
vacancies in the local commuting area within the prescribed time frames, 
attach the appropriate proof of eligibility as described in paragraph 
(a)(2) of this section, and be determined well-qualified by the agency 
for the specific position.
    (2) Employees may submit the following as proof of eligibility for 
the special selection priority:
    (i) RIF separation notice, or notice of proposed removal for 
declining a directed reassignment or transfer of function to another 
commuting area;
    (ii) Documentation, e.g., SF-50, Notification of Personnel Action, 
showing that they were separated as a result of reduction in force, or 
for declining a transfer of function or directed reassignment to another 
commuting area;
    (iii) Official certification from an agency stating that it cannot 
place an individual whose injury compensation has been or is being 
terminated;
    (iv) Official notification from OPM that an individual's disability 
annuity has been or is being terminated; or
    (v) Official notification from the Military Department or National 
Guard Bureau that the employee has retired under 5 U.S.C. 8337(h) or 
8456.
    (b) Selection. In making selections, an agency will adhere to the 
overall order of selection set forth in Sec.  330.705. In addition, the 
following apply:
    (1) An agency cannot select another candidate from outside the 
agency if eligible employees are available for the vacancy or vacancies.
    (2) If two or more eligible employees apply for a vacancy and are 
determined to be well-qualified, any of these eligible employees may be 
selected.
    (3) If no eligible employees apply or none is deemed well-qualified, 
the agency may select another candidate without regard to this subpart. 
(This flexibility does not apply to selections made from the agency's 
Reemployment Priority List as described in subpart B of this part.)
    (c) An agency may select a candidate from its Career Transition 
Assistance Plan or Reemployment Priority List, as described in subparts 
F and B of this part respectively, or another current agency employee 
(if no eligible employees are available through its CTAP) at any time.



Sec.  330.709  Qualification reviews.

    Agencies will ensure that a documented, independent second review is 
conducted whenever an otherwise eligible employee is found to be not 
well-qualified. The applicant must be advised in writing of the results 
of the second review.



Sec.  330.710  [Reserved]



Sec.  330.711  Oversight.

    OPM is responsible for oversight of the Interagency Career 
Transition Assistance Plan for Displaced Employees and may conduct 
reviews of agency activity at any time.

Subparts H-I [Reserved]



                     Subpart J_Prohibited Practices



Sec.  330.1001  Withdrawal from competition.

    An applicant for competitive examination, an eligible on a register, 
and an officer or employee in the executive branch of the Government 
shall not persuade, induce, or coerce, or attempt to persuade, induce, 
or coerce, directly or indirectly, a prospective applicant to withhold 
filing application, or an applicant or eligible to withdraw from 
competition or eligibility, for a position in the competitive service, 
for the purpose of improving or injuring the

[[Page 216]]

prospects of an applicant or eligible for appointment. OPM shall cancel 
the application or eligibility of an applicant or eligible who violates 
this section, and shall impose such other penalty as it considers 
appropriate.

[33 FR 12425, Sept. 4, 1968. Redesignated at 60 FR 67282, Dec. 29, 1995; 
61 FR 691, Jan. 10, 1996]



    Subpart K_Federal Employment Priority Consideration Program for 
     Displaced Employees of the District of Columbia Department of 
                               Corrections

    Source: 63 FR 41387, Aug. 4, 1998, unless otherwise noted.



Sec.  330.1101  Purpose.

    A displaced employee of the District of Columbia (DC) Department of 
Corrections (DOC) who is separated from his/her position as a result of 
the closure of the Lorton Correctional Complex, and who has not been 
appointed to a permanent Federal Bureau of Prisons law enforcement 
position, is entitled to priority consideration for other Federal 
vacancies when he/she applies and is found qualified.

[66 FR 6428, Jan. 22, 2001]



Sec.  330.1102  Duration.

    This program terminates 1 year after the closing of the Lorton 
Correctional Complex.

[66 FR 6429, Jan. 22, 2001]



Sec.  330.1103  Definitions.

    For purposes of this subpart:
    (a) Agency means an Executive Department, a Government corporation, 
and an independent establishment as cited in 5 U.S.C. 105. For the 
purposes of this program, the term ``agency'' includes all components of 
an organization, including its Office of Inspector General.
    (b) Displaced employee means a current or former employee of the 
District of Columbia Department of Corrections who has received a 
specific reduction in force (RIF) separation notice as a result of the 
closure of the Lorton Correctional Complex.
    (c) Priority consideration means that a displaced DC DOC employee 
eligible under this subpart who applies for a vacancy and is determined 
to be qualified, is accorded similar priority and order of selection as 
an eligible current or former displaced Federal employee under 5 CFR 
part 330, subpart G--Interagency Career Transition Assistance for 
Displaced Employees. Actions which are exempt from the requirements of 5 
CFR part 330 subpart G will also be exempt from the requirements of this 
subpart. Agencies must follow the order of selection in Sec.  330.705(a) 
in filling vacancies in the Federal Government with candidates from 
outside their own workforce. DC DOC employees are eligible for this 
priority consideration without regard to any geographical restrictions.
    (d) Qualified means an eligible employee who:
    (1) Possesses the knowledge, skills, and abilities which meet the 
basic qualification standards and eligibility requirements for the 
position, including any medical qualifications, suitability, 
citizenship, minimum educational and experience requirements, and any 
applicable selective factors;
    (2) Is physically qualified, with reasonable accommodation where 
appropriate, to perform the essential duties of the position;
    (3) Meets any special qualifying condition(s) that OPM has approved 
for the position; and
    (4) Is able to satisfactorily perform the duties of the position 
upon entry.
    (e) Vacancy means any competitive service position, including non-
law enforcement positions in the Federal Bureau of Prisons, to be filled 
for a total of 121 days or more, including all extensions, regardless of 
whether the agency issues a specific vacancy announcement. This program 
does not apply to law enforcement positions covered by the Federal 
Bureau of Prisons Priority Consideration Program.

[63 FR 41387, Aug. 4, 1998, as amended at 66 FR 6429, Jan. 22, 2001; 67 
FR 6639, Feb. 13, 2002]



Sec.  330.1104  Eligibility.

    (a) To be eligible for priority consideration, an employee of the DC 
DOC must:

[[Page 217]]

    (1) Be in receipt of a RIF separation notice, or a similar notice of 
non-disciplinary termination from the Management Supervisory Service, 
issued by the DC Department of Corrections in connection with the 
closure of the Lorton Correctional Complex.
    (2) Have not been appointed to a permanent Federal Bureau of Prisons 
law enforcement position;
    (3) Apply for a vacancy within the time frames established by the 
agency, and include proof of eligibility;
    (4) Be found qualified for the specific vacancy.
    (b) Eligibility for priority consideration begins: on the date the 
DC DOC employee receives or is issued a specific RIF separation notice, 
or a similar notice of non-disciplinary termination from the Management 
Supervisory Service (MSS), issued by the DC DOC due to the closure of 
the Lorton Correctional Complex.
    (c) Eligibility expires:
    (1) One year after the closing of the Lorton Correctional Complex;
    (2) When the DC DOC employee is no longer being separated by RIF, or 
by similar non-disciplinary termination from the Management Supervisory 
Service, due to the closure of the Lorton Correctional Complex;
    (3) When the DC DOC employee receives a career, career-conditional, 
or excepted appointment without time limit in any Federal agency at any 
grade level;
    (4) When the DC DOC employee voluntarily separates by resignation or 
retirement prior to the RIF effective date or the non-disciplinary MSS 
termination date;
    (5) When the DC DOC employee is separated by a non-RIF involuntary 
separation or disciplinary or other MSS termination not related to the 
closure of the Lorton correctional complex; or
    (6) Eligibility within a specific agency may terminate if the 
employee:
    (i) Declines a permanent appointment, at any grade level, offered by 
the agency (whether competitive or excepted) when the employee applied 
and was found qualified; or
    (ii) Fails to respond within a reasonable period of time to an offer 
or official inquiry of availability from the agency for a permanent 
appointment, at any grade level, offered by the agency (whether 
competitive or excepted) when the employee applied and was found 
qualified.

[63 FR 41387, Aug. 4, 1998, as amended at 66 FR 6429, Jan. 22, 2001; 67 
FR 6639, Feb. 13, 2002]



Sec.  330.1105  Selection.

    (a) If two or more individuals eligible for priority under subpart G 
of this part (the Interagency Career Transition Assistance Plan), under 
subpart K of this part (Federal Employment Priority Consideration for 
Displaced Employees of the District of Columbia Department of 
Corrections), and/or under subpart L of this part (Interagency Career 
Transition Assistance for Displaced Former Panama Canal Zone Employees) 
apply for a vacancy and are eligible for priority, the agency has the 
discretion to select any of the individuals.
    (b) Agencies will conduct a documented, independent second review 
whenever an otherwise eligible employee fails to meet the ``qualified'' 
requirement. The applicant must be advised in writing of the results of 
the second review.

[66 FR 6429, Jan. 22, 2001]



Sec.  330.1106  Appointment.

    (a)(1) Selectees under this subpart receive noncompetitive 
appointments to the competitive service under the authority of Public 
Law 105-274, enacted October 21, 1998.
    (2) Agencies must retroactively and noncompetitively convert or 
correct any excepted appointments made under section 11203(b) of Public 
Law 105-33 to competitive service appointments under Public Law 105-274. 
For employees appointed before October 21, 1998, the conversion will be 
effective on October 21, 1998. For employees appointed on or after 
October 21, 1998, agencies must correct the record to reflect 
competitive service appointment as of the original appointment date.
    (b) Eligibility for appointment under this subpart expires 1 year 
after the closing of the Lorton Correctional Complex.

[66 FR 6429, Jan. 22, 2001]

[[Page 218]]



Subpart L_Interagency Career Transition Assistance for Displaced Former 
                       Panama Canal Zone Employees

    Source: 65 FR 52294, Aug. 29, 2000, unless otherwise noted.



Sec.  330.1201  Purpose.

    This subpart implements Section 1232 of Public Law 96-70 (the Panama 
Canal Act of 1979) and provides eligible displaced employees of the 
former Panama Canal Zone with interagency special selection priority for 
continuing Federal vacant positions in the continental United States.



Sec.  330.1202  Definitions.

    For purposes of this subpart:
    (a) Agency means an Executive Department, a Government corporation, 
and an independent establishment as cited in 5 U.S.C. 105. For the 
purposes of this program, the term ``agency'' includes all components of 
an organization, including its Office of Inspector General.
    (b) Canal Zone is the definition set forth in 22 U.S.C. 3602(b)(1), 
and means the areas and installations in the Republic of Panama made 
available to the United States pursuant to the Panama Canal Treaty of 
1977 and related agreements;
    (c) Eligible displaced employee of the former Panama Canal Zone 
means a citizen of the United States who:
    (1) Held a position in the Panama Canal Employment System that is in 
retention tenure group 1 or 2, as defined in Sec.  351.501(a) of this 
chapter;
    (2)(i) Was an employee of the Panama Canal Company or the Canal Zone 
Government on March 31, 1979, and was continuously employed in the 
former Panama Canal Zone under the Panama Canal Employment System; or
    (ii) Was continuously employed since March 31, 1979, in the former 
Panama Canal Zone under the Panama Canal Employment System as an 
employee of an executive agency, or as an employee of the Smithsonian 
Institution;
    (3) Held a position that was eliminated as the result of the 
implementation of the Panama Canal Treaty of 1977 and related 
agreements;
    (4) Was not appointed to another appropriate Federal position 
located in the Republic of Panama; and
    (5) Received a specific notice of separation by reduction in force, 
and meets the additional eligibility criteria covered in Sec.  330.1203.
    (d) Special selection priority means that an eligible displaced 
employee of the former Panama Canal Zone who applies for a competitive 
service vacancy, and who the hiring agency in the continental United 
States determines is well-qualified, has the same special selection 
priority as a current or former displaced Federal employee who is 
eligible under 5 CFR part 330, subpart G (the Interagency Career 
Transition Assistance Plan), or under 5 CFR part 330, subpart K (Federal 
Employment Priority Consideration for Displaced Employees of the 
District of Columbia Department of Corrections). Eligible displaced 
employees of the former Panama Canal Zone have special selection 
priority under this subpart to positions throughout the continental 
United States.
    (e) Vacancy means a competitive service position to be filled for a 
total of 121 days or more, including all extensions, which the agency is 
filling, regardless of whether the agency issues a specific vacancy 
announcement.
    (f) Well-qualified employee means an eligible displaced former 
employee of the Panama Canal Zone who possesses the knowledge, skills, 
and abilities that clearly exceed the minimum qualification requirements 
for the position. A well-qualified employee will not necessarily meet 
the agency's definition of highly or best qualified, when evaluated 
against other candidates who apply for a particular vacancy, but must 
satisfy the following criteria, as determined and consistently applied 
by the agency:
    (1) Meets the basic qualification standards and eligibility 
requirements for the position, including any medical qualifications, 
suitability, and minimum educational and experience requirements;
    (2) Satisfies one of the following qualifications requirements:
    (i) Meets all selective factors where applicable. Meets appropriate 
quality rating factor levels as determined by

[[Page 219]]

the agency. Selective and quality ranking factors cannot be so 
restrictive that they run counter to the goal of placing displaced 
employees. In the absence of selective and quality ranking factors, 
selecting officials will document the job-related reason(s) the eligible 
employee is or is not considered to be well-qualified; or
    (ii) Is rated by the agency to be above minimally qualified in 
accordance with the agency's specific rating and ranking process. 
Generally, this means that the individual may or may not meet the 
agency's test for highly qualified, but would in fact, exceed the 
minimum qualifications for the position;
    (3) Is physically qualified, with reasonable accommodation where 
appropriate, to perform the essential duties of the position;
    (4) Meets any special qualifying condition(s) that OPM has approved 
for the position;
    (5) Is able to satisfactorily perform the duties of the position 
upon entry; and
    (6) Has a last performance rating of at least ``Fully Successful'' 
or equivalent.



Sec.  330.1203  Eligibility.

    (a) In order to be eligible for special selection priority, an 
eligible displaced employee of the former Panama Canal Zone must:
    (1) Have received a specific notice of separation by reduction in 
force;
    (2) Have not been appointed to another appropriate position in the 
Government of the United States in Panama;
    (3) Apply for a vacancy within the time frames established by the 
hiring agency; and
    (4) Be found by the hiring agency as well-qualified for that 
specific vacancy.
    (b) Eligibility for special selection priority as an eligible 
displaced employee of the former Panama Canal Zone begins on the date 
that the employee received a specific notice of separation by reduction 
in force.
    (c) Eligibility for special selection priority as an eligible 
displaced employee of the former Panama Canal Zone expires on the 
earliest of:
    (1) One year after the effective date of the reduction in force;
    (2) The date that the employee receives a career, career-
conditional, or excepted appointment without time limit in any agency at 
any grade level; or
    (3) The date that the employee is separated involuntarily for cause 
prior to the effective date of the reduction in force action.



Sec.  330.1204  Selection.

    (a) If two or more individuals apply for a vacancy and the hiring 
agency determines the individuals to be well-qualified, the agency has 
the discretion to select any of the individuals eligible for priority 
under subpart G of this part (the Interagency Career Transition 
Assistance Plan), under subpart K of this part (Federal Employment 
Priority Consideration for Displaced employees of the District of 
Columbia Department of Corrections), or under subpart L of this part 
(Interagency Career Transition Assistance for Displaced Former Panama 
Canal Zone Employees).
    (b) Except as provided in Sec.  330.705(c), when filling a position 
from outside the agency's workforce, the agency must select:
    (1) Current or former agency employees eligible under the agency's 
Reemployment Priority List described in subpart B of this part; then
    (2) At the agency's option, any other former employee displaced from 
the agency (under appropriate selection procedures, then:
    (3) Current or former Federal employees displaced from other 
agencies who are eligible under subparts G, K, or L of this part, and 
then:
    (4) Any other candidate (under appropriate selection procedures) 
(optional).



PART 332_RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION--Table of Contents




                      Subpart A_General Provisions

Sec.
332.101 General policy of competition.
332.102 Definitions.
332.103 Filling certain postmaster positions.

Subpart B [Reserved]

[[Page 220]]

             Subpart C_Period of Competition and Eligibility

                                 General

332.301 Termination of eligibility.

      Acceptance of Applications After Closing Date of Examinations

332.311 Quarterly examinations.
332.312 Applicants in military or overseas service.
332.313 Preference eligibles separated from competitive positions.
332.314 [Reserved]

                       Restoration of Eligibility

332.321 Preference eligibles who resigned from competitive positions.
332.322 Persons who lost eligibility because of military service.
332.323 Employees separated during probation.

                 Subpart D_Consideration for Appointment

332.401 Order on registers.
332.402 Referring candidates for appointment.
332.403 Selective certification.
332.404 Order of selection from certificates.
332.405 Three considerations for appointment.
332.406 Objections to eligibles.
332.407 Restriction of consideration to one sex.

    Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 
Comp., p. 218.

    Source: 33 FR 12426, Sept. 4, 1968, unless otherwise noted.



                      Subpart A_General Provisions



Sec.  332.101  General policy of competition.

    (a) Examinations for entrance into the competitive service shall be 
open competitive, except that OPM may authorize noncompetitive 
examinations when sufficient competent persons do not compete.
    (b) An examination for promotion, demotion, reassignment, transfer, 
or reinstatement may be a noncompetitive examination.



Sec.  332.102  Definitions.

    In this part:
    (a) Certificate means a list of eligibles from a register submitted 
to an appointing officer so that he may consider the eligibles for 
appointment.
    (b) Active military duty means active duty in full pay status in the 
Armed Forces of the United States, including an initial period of active 
duty for training.



Sec.  332.103  Filling certain postmaster positions.

    (a) When a vacancy occurs or is about to occur in a postmaster 
position in a fourth-class post office and the position involves fewer 
than 7 daily hours of service, a representative of the U.S. Postal 
Service shall visit the locality and, after due public notice has been 
given, accept applications from interested persons. The representative 
shall establish a register based on the qualifications and suitability 
of each applicant and on his ability to provide proper facilities for 
transacting the business of the office. The U.S. Postal Service shall 
submit to OPM for postaudit one copy of the representative's report 
showing the qualifications of all applicants, the basis for ranking the 
eligibles, and the selection of an eligible from the register. The 
report shall be accompanied by the applications of all applicants. A 
person selected for appointment from such a register may be appointed 
after the date the postmaster position is determined to involve 7 or 
more daily hours of service only with the prior approval of OPM.
    (b) When making an appointment from a register established under 
paragraph (a) of this section, the appointing officer shall select an 
eligible in accordance with Sec. Sec.  332.404 through 332.407.
    (c) When OPM, after holding two examinations, is unable to secure a 
complete certificate of three eligibles for a postmaster position 
involving 7 or more daily hours of service, it may authorize the 
establishment of a register and selection therefrom in accordance with 
paragraphs (a) and (b) of this section.

[34 FR 19748, Dec. 17, 1969]

Subpart B [Reserved]

[[Page 221]]



             Subpart C_Period of Competition and Eligibility

                                 General



Sec.  332.301  Termination of eligibility.

    (a) Except as provided in paragraph (b) of this section, a person's 
eligibility on a register is terminated when:
    (1) He accepts a career or career-conditional appointment from the 
register; or
    (2) OPM terminates the eligibility of all persons on the register.
    (b) OPM may determine that in particular types of cases eligibility 
may not be terminated in less than 1 year. OPM shall publish the 
conditions under which eligibility may not be terminated in less than 1 
year.

[33 FR 12426, Sept. 4, 1968, as amended at 66 FR 66710, Dec. 27, 2001]

      Acceptance of Applications After Closing Date of Examinations



Sec.  332.311  Quarterly examinations.

    (a) A 10-point preference eligible is entitled to file an 
application at any time for an examination for any position for which 
OPM maintains a register, for which a register is about to be 
established, or for which a nontemporary appointment was made in the 
preceding three years. For the purposes of this paragraph OPM shall hold 
an examination not later than the quarterly period succeeding that in 
which the application is filed.
    (b) When there is no appropriate existing register, OPM may 
establish special registers containing the names of eligibles from the 
quarterly examinations authorized by paragraph (a) of this section, 
together with the names of eligibles described in Sec.  332.322, and use 
these registers for certification to fill appropriate vacancies.

[35 FR 414, Jan. 13, 1970, as amended at 41 FR 22549, June 4, 1976]



Sec.  332.312  Applicants in military or overseas service.

    Subject to the time limits and other conditions published by OPM in 
its operating manuals, the following persons are entitled to file 
applications for open competitive examinations after the closing date 
for receipt of applications when there is an existing register or a 
register about to be established:
    (a) A person who could not file an application during the filing 
period, or appear for an assembled examination, because of military 
service, or hospitalization continuing for 1 year or less following 
discharge from military service;
    (b) An employee of the Federal Government who, as a member of a 
reserve unit of the military service, could not file an application 
during the filing period, or appear for an assembled examination, 
because of active duty beyond 15 days with the military service even 
though the duty is designated for training purposes; and
    (c) A United States citizen who could not file an application during 
the filing period, or appear for an assembled examination, because of 
overseas service with a Federal agency or with an international 
organization in which the United States Government participates.

[33 FR 12426, Sept. 4, 1968, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  332.313  Preference eligibles separated from competitive positions.

    The following persons are entitled to have their names entered on an 
appropriate existing register in the order prescribed by Sec.  332.401 
if they were last employed under career or career-conditional 
appointments:
    (a) A preference eligible who is declared eligible therefor after 
appeal from furlough or discharge; and
    (b) A preference eligible who has been furloughed or separated 
without delinquency or misconduct and who applies within 90 days after 
furlough or separation.



Sec.  332.314  [Reserved]

                       Restoration of Eligibility



Sec.  332.321  Preference eligibles who resigned from competitive positions.

    A qualified preference eligible who resigned without delinquency or 
misconduct from career or career-conditional employment is entitled to 
have his name reentered on each register on which his name formerly 
appeared (or

[[Page 222]]

on a successor register) if he applies within 90 days after separation.



Sec.  332.322  Persons who lost eligibility because of military service.

    (a) A person who lost a period of eligibility on a register because 
he has served on active military duty since June 30, 1950, is entitled 
to have his name restored to that register or a successor register when 
he meets the following conditions:
    (1) He has not served more than four years following the date of his 
entrance on active military duty, exclusive of any additional service 
imposed pursuant to law. The date of entrance on duty means the first 
date between June 30, 1950, and July 1, 1971, on which he began a new 
period of active military duty, whether it was by original entry, 
reentry or extension.
    (2) He is honorably separated from active military duty.
    (3) He applies for restoration of eligibility within 90 days after 
discharge from active military duty or from hospitalization continuing 
for 1 year or less following separation from active military duty.
    (4) He is still qualified to perform the duties of the position for 
which the register is used.
    (b) When a person is entitled to have his name restored to a 
register under paragraph (a) of this section, OPM shall enter his name 
at the top of the appropriate group on the register if another eligible 
standing lower on the register on which his name formerly appeared was 
given a career or career-conditional appointment from that register. For 
professional and scientific positions in GS-9 and above and in 
comparable pay levels under other pay-fixing authorities, all eligibles 
are in one group. For all other positions, preference eligibles with a 
compensable service-connected disability of 10 percent or more are in 
one group and all other eligibles in another.
    (c) When there is no appropriate existing register, OPM may 
establish special registers containing the names of persons entitled to 
priority of certification under paragraph (b) of this section, together 
with the names of eligibles described in Sec.  332.311, and use these 
registers for certification to fill appropriate vacancies.

[33 FR 12426, Sept. 4, 1968, as amended at 35 FR 414, Jan. 13, 1970]



Sec.  332.323  Employees separated during probation.

    An employee who is separated (voluntarily or involuntarily) without 
delinquency or misconduct during his probationary period is entitled to 
have his name restored to the register of eligibles from which he was 
appointed, if he applies for restoration while the register is still in 
use.



                 Subpart D_Consideration for Appointment



Sec.  332.401  Order on registers.

    Subject to apportionment, residence, and other requirements of law 
and this chapter, OPM shall enter the names of eligibles on the 
appropriate register in accordance with their numerical ratings, except 
that the names of:
    (a) Preference eligibles shall be entered in accordance with their 
augmented ratings and ahead of others having the same rating; and
    (b) Preference eligibles who have a compensable service-connected 
disability of 10 percent or more shall be entered at the top of the 
register in the order of their ratings unless the register is for 
professional or scientific positions in GS-9 and above and in comparable 
pay levels under other pay-fixing authorities.



Sec.  332.402  Referring candidates for appointment.

    OPM or a Delegated Examining Unit (DEU) will refer candidates for 
consideration by simultaneously listing a candidate on all certificates 
for which the candidate is interested, eligible, and within reach, 
except that, when it is deemed in the interest of good administration 
and candidates have been so notified, OPM or a DEU may choose to refer 
candidates for only one vacancy at a time. Selecting officials will 
receive sufficient names, when available, to allow them to consider at 
least 3 candidates for each vacancy.

[67 FR 7056, Feb. 15, 2002]

[[Page 223]]



Sec.  332.403  Selective certification.

    When there is no register appropriate as a whole for the 
certification of eligibles for a particular position, OPM may prepare a 
certificate from the most nearly appropriate existing register by the 
selective certification of eligibles qualified for the particular 
position in the order of their ranking on the register. Special overseas 
selection factors may also be used as a basis for selective 
certification from a register used for filling overseas positions. When 
appropriate, OPM may rerate the eligibles on the register on the basis 
of the particular requirements of the position.



Sec.  332.404  Order of selection from certificates.

    An appointing officer, with sole regard to merit and fitness, shall 
select an eligible for:
    (a) The first vacancy from the highest three eligibles on the 
certificate who are available for appointment; and
    (b) The second and each succeding vacancy from the highest three 
eligibles on the certificate who are unselected and available for 
appointment.



Sec.  332.405  Three considerations for appointment.

    An appointing officer is not required to consider an eligible who 
has been considered by him for three separate appointments from the same 
or different certificates for the same position.



Sec.  332.406  Objections to eligibles.

    (a) An appointing officer is not required to consider an eligible to 
whose certification for the particular position he makes an objection 
that is sustained by OPM for any of the reasons stated in Sec.  339.101 
or Sec.  731.201 of this chapter or for other reasons considered by OPM 
to be disqualifying for the particular position. OPM may also sustain an 
objection to certification of an otherwise qualified eligible for an 
overseas position on the basis of special overseas selection factors.
    (b) An appointing officer may not pass over a preference eligible to 
select a non-preference eligible unless an objection to the preference 
eligible is sustained by OPM.
    (c) Pending OPM action on an agency's objection to an eligible, the 
agency may not appoint an eligible who would be within reach only if the 
objection is sustained.
    (d) Paragraphs (b) and (c) of this section, do not apply if the 
agency has more than one position to fill from the same certificate and 
holds a position for the individual objected to in the event OPM does 
not sustain the objection
    (e) Agencies shall follow the procedures for objecting to an 
eligible published by OPM in its operating manuals.

[42 FR 61240, Dec. 2, 1977, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  332.407  Restriction of consideration to one sex.

    An appointing officer may not restrict his consideration of 
eligibles or employees for competitive appointment or appointment by 
noncompetitive action to a position in the competitive service to one 
sex, except in unusual circumstances when OPM finds the action 
justified.

[34 FR 5367, Mar. 19, 1969. Redesignated at 42 FR 61240, Dec. 2, 1977]

                           PART 333 [RESERVED]



PART 334_TEMPORARY ASSIGNMENTS UNDER THE INTERGOVERNMENTAL PERSONNEL ACT (IPA)--Table of Contents




Sec.
334.101 Purpose.
334.102 Definitions.
334.103 Requirements for approval of instrumentalities or authorities of 
          State and local governments and ``other organizations.''
334.104 Length of assignment.
334.105 Obligated service requirement.
334.106 Requirement for written agreement.
334.107 Termination of agreement.
334.108 Reports required.

    Authority: 5 U.S.C. 3376; E.O. 11589, 3 CFR 557 (1971-1975)

    Source: 71 FR 54565, Sept. 18, 2006, unless otherwise noted.



Sec.  334.101  Purpose.

    The purpose of this part is to implement title IV of the 
Intergovernmental

[[Page 224]]

Personnel Act (IPA) of 1970 and title VI of the Civil Service Reform 
Act. These statutes authorize the temporary assignment of employees 
between the Federal Government and State, local, and Indian tribal 
governments, institutions of higher education and other eligible 
organizations.



Sec.  334.102  Definitions.

    In this part:
    Assignment means a period of service under chapter 33, subchapter VI 
of title 5, United States Code;
    Employee, for purposes of participation in this program, means an 
individual serving in a Federal agency under a career or career-
conditional appointment, including career appointees in the Senior 
Executive Service, individuals under appointments of equivalent tenure 
in excepted service positions (including, e.g., the Presidential 
Management Fellows Program, the Federal Career Intern Program, the 
Student Career Experience Program, and Veterans Recruitment Appointments 
(VRA)), or an individual employed for at least 90 days in a career 
position with a State, local, or Indian tribal government, institution 
of higher education, or other eligible organization;
    Federal agency as defined in 5 U.S.C. 3371(3) means an Executive 
agency, military department, a court of the United States, the 
Administrative Office of the United States Courts, the Library of 
Congress, the Botanic Garden, the Government Printing Office, the 
Congressional Budget Office, the United States Postal Service, the 
Postal Rate Commission, the Office of the Architect of the Capitol, the 
Office of Technology Assessment, and such other similar agencies of the 
legislative and judicial branches as determined appropriate by the 
Office of Personnel Management;
    Indian tribal government as defined in 5 U.S.C. 3371(2)(c) means any 
Indian tribe, band, nation, or other organized group or community, 
including any Alaska Native village as defined in the Alaska Native 
Claims Settlement Act (85 Stat. 668), which is recognized as eligible 
for the special programs and services provided by the United States to 
Indians because of their status as Indians and includes any tribal 
organization as defined in section 4(c) of the Indian Self-Determination 
and Education Assistance Act;
    Institution of higher education means a domestic, accredited public 
or private 4-year and/or graduate level college or university, or a 
technical or junior college;
    Local government as defined in 5 U.S.C. 3371(2)(A) and (B) means:
    (1) Any political subdivision, instrumentality, or authority of a 
State or States; and
    (2) Any general or special purpose agency of such a political 
subdivision, instrumentality, or authority;
    Other organization as defined in 5 U.S.C. 3371(4) means:
    (1) A national, regional, Statewide, area wide, or metropolitan 
organization representing member State or local governments;
    (2) An association of State or local public officials;
    (3) A nonprofit organization which offers, as one of its principal 
functions, professional advisory, research, educational, or development 
services, or related services, to governments or universities concerned 
with public management; or
    (4) A federally funded research and development center.
    State as defined in 5 U.S.C. 3371(1) means a State of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Trust Territory of the Pacific Islands, the Northern Mariana Islands, 
and a territory or possession of the United States; an instrumentality 
or authority of a State or States; and a Federal-State authority or 
instrumentality.



Sec.  334.103  Requirements for approval of instrumentalities or authorities of State and local governments and ``other organizations.''

    (a) Organizations interested in participating in the IPA mobility 
program as an instrumentality or authority of a State or local 
government or as an ``other organization'' as set out in this part must 
have their eligibility certified by the Federal agency with which they 
are entering into an assignment.

[[Page 225]]

    (b) Written requests for certification must include a copy of the 
organization's:
    (1) Articles of incorporation;
    (2) Bylaws;
    (3) Internal Revenue Service nonprofit statement; and
    (4) Any other information which indicates that the organization has 
as a principal function the offering of professional advisory, research, 
educational, or development services, or related services to governments 
or universities concerned with public management.
    (c) Federally funded research and development centers which appear 
on a master list maintained by the National Science Foundation are 
eligible to participate in the program.
    (d) An organization denied certification by an agency may request 
reconsideration by the Office of Personnel Management (OPM).



Sec.  334.104  Length of assignment.

    (a) The head of a Federal agency, or his or her designee, may make 
an assignment for up to 2 years, which may be extended for up to 2 more 
years if the parties agree.
    (b) A Federal agency may not send an employee on an assignment if 
that person is a Federal employee and has participated in this program 
for more than a total of 6 years during his or her Federal career. OPM 
may waive this restriction upon the written request of the agency head, 
or his or her designee.
    (c) A Federal agency may not send or receive an employee on an 
assignment if the employee has participated in this program for 4 
continuous years without at least a 12-month return to duty with the 
organization from which the employee was originally assigned. Successive 
assignments with a break of no more than 60 calendar days will be 
regarded as continuous service under the mobility authority.



Sec.  334.105  Obligated service requirement.

    (a) A Federal employee assigned under this part must agree, as a 
condition of accepting an assignment, to serve with the Federal 
Government upon completion of the assignment for a period equal to the 
length of the assignment.
    (b) If the employee fails to carry out this agreement, he or she 
must reimburse the Federal agency for its share of the costs of the 
assignment (exclusive of salary and benefits). The head of the Federal 
agency, or his or her designee, may waive this reimbursement for good 
and sufficient reason.



Sec.  334.106  Requirement for written agreement.

    (a) Before the assignment begins, the assigned employee and the 
Federal agency, the State, local, Indian tribal government, institution 
of higher education, or other eligible organization must enter into a 
written agreement recording the obligations and responsibilities of the 
parties, as specified in 5 U.S.C. 3373-3375.
    (b) Federal agencies must maintain a copy of each assignment 
agreement form established under this part, including any modification 
to the agreement. The agency may determine the appropriate time period 
for retaining copies of its written agreements.



Sec.  334.107  Termination of agreement.

    (a) An assignment may be terminated at any time at the request of 
the Federal agency or the State, local, Indian tribal government, 
institution of higher education, or other organization participating in 
this program. Where possible, the party terminating the assignment prior 
to the agreed upon date should provide 30-days advance notice along with 
a statement of reasons, to the other parties to the agreement.
    (b) Federal assignees continue to encumber the positions they 
occupied prior to assignment, and the position is subject to any 
personnel actions that might normally occur. At the end of the 
assignment, the employee must be allowed to resume the duties of the 
employee's position or must be reassigned to another position of like 
pay and grade.
    (c) An assignment is terminated automatically when the employer-
employee relationship ceases to exist between the assignee or original 
employer.

[[Page 226]]

    (d) OPM has the authority to direct Federal agencies to terminate 
assignments or take other corrective actions when OPM finds assignments 
have been made in violation of the requirements of the Intergovernmental 
Personnel Act or this part.



Sec.  334.108  Reports required.

    A Federal agency which assigns an employee to or receives an 
employee from a State, local, Indian tribal government, institution of 
higher education, or other eligible organization in accordance with this 
part must submit to OPM such reports as OPM may request.



PART 335_PROMOTION AND INTERNAL PLACEMENT--Table of Contents




                      Subpart A_General Provisions

Sec.
335.101 Effect of position change on status and tenure.
335.102 Agency authority to promote, demote, or reassign.
335.103 Agency promotion programs.
335.104 Eligibility for career ladder promotion.
335.105 Notice of job announcements to OPM.
335.106 Special selection procedures for certain veterans under merit 
          promotion.

    Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-1958 
Comp., p. 218; 5 U.S.C. 3304 (f), and Pub.L. 106-117.



                      Subpart A_General Provisions



Sec.  335.101  Effect of position change on status and tenure.

    (a) Status. A position change authorized by Sec.  335.102 does not 
change the competitive status of an employee.
    (b) Tenure. Except as provided in paragraph (c) of this section and 
Sec.  316.703 of this chapter, a position change authorized by Sec.  
335.102 does not change the tenure of an employee.
    (c) Exceptions. (1) A career-conditional employee who is promoted, 
demoted, or reassigned to a position paid under chapter 45 of title 39, 
United States Code, or required by law to be filled on a permanent basis 
becomes a career employee.
    (2) A career employee who is promoted, demoted, or reassigned from a 
position paid under chapter 45 of title 39, United States Code, or 
required by law to be filled on a permanent basis to a position under 
the career-conditional employment system becomes a career-conditional 
employee unless he has completed the service requirement for career 
tenure.

[33 FR 12428, Sept. 4, 1968]



Sec.  335.102  Agency authority to promote, demote, or reassign.

    Subject to Sec.  335.103 and, when applicable, to part 319 of this 
chapter, an agency may:
    (a) Promote, demote, or reassign a career or career-conditional 
employee;
    (b) Reassign an employee serving under a temporary appointment 
pending establishment of a register to a position to which his original 
assignment could have been made by the same appointing officer from the 
same recruiting list under the same order of consideration;
    (c) Promote, demote, or reassign an employee serving under an 
overseas limited appointment of indefinite duration or an overseas 
limited term appointment to another position to which an initial 
appointment under Sec.  301.201, Sec.  301.202, or Sec.  301.203 of this 
chapter is authorized;
    (d) Promote, demote, or reassign (1) a status quo employee and (2) 
an employee serving under an indefinite appointment in a competitive 
position, except that this authority may not be used to move an 
employee:
    (i) From a position in which an initial overseas limited appointment 
is authorized to another position; or
    (ii) To a position in which an initial overseas limited appointment 
is authorized from another position; and
    (e) Promote, demote, or reassign a term employee serving on a given 
project to another position within the project which the agency has been 
authorized to fill by term appointment;
    (f) Make time-limited promotions to fill temporary positions, 
accomplish project work, fill positions temporarily pending 
reorganization or downsizing, or meet other temporary needs for a 
specified period of not more than 5 years, unless OPM authorizes the 
agency to make and/or extend time-limited promotions for a longer 
period.

[[Page 227]]

    (1) The agency must give the employee advance written notice of the 
conditions of the time-limited promotion, including the time limit of 
the promotion; the reason for a time limit; the requirement for 
competition for promotion beyond 120 days, where applicable; and that 
the employee may be returned at any time to the position from which 
temporarily promoted, or to a different position of equivalent grade and 
pay, and the return is not subject to the procedures in parts 351, 432, 
752, or 771 of this chapter. When an agency effects a promotion under a 
nondiscretionary provision and is unable to give advance notice to the 
employee, it must provide the notice as soon as possible after the 
promotion is made.
    (2) This paragraph applies to a career, career-conditional, status 
quo, indefinite, or term employee and to an employee serving under an 
overseas limited appointment of indefinite duration, or an overseas 
limited term appointment.

[33 FR 12428, Sept. 4, 1968, as amended at 35 FR 13075, Aug. 18, 1970; 
45 FR 24855, Apr. 11, 1980; 57 FR 10124, Mar. 24, 1992; 58 FR 59347, 
Nov. 9, 1993]



Sec.  335.103  Agency promotion programs.

    (a) Merit promotion plans. Except as otherwise specifically 
authorized by OPM, an agency may make promotions under Sec.  335.102 of 
this part only to positions for which the agency has adopted and is 
administering a program designed to insure a systematic means of 
selection for promotion according to merit. These programs shall conform 
to the requirements of this section.
    (b) Merit promotion requirements--(1) Requirement 1. Each agency 
must establish procedures for promoting employees which are based on 
merit and are available in writing to candidates. Agencies must list 
appropriate exceptions, including those required by law or regulation, 
as specified in paragraph (c) of this section. Actions under a promotion 
plan--whether identification, qualification, evaluation, or selection of 
candidates--shall be made without regard to political, religious, or 
labor organization affiliation or nonaffiliation, marital status, race, 
color, sex, national origin, nondisqualifying physical handicap, or age, 
and shall be based solely on job-related criteria.
    (2) Requirement 2. Areas of consideration must be sufficiently broad 
to ensure the availability of high quality candidates, taking into 
account the nature and level of the positions covered. Agencies must 
also ensure that employees within the area of consideration who are 
absent for legitimate reason, e.g., on detail, on leave, at training 
courses, in the military service, or serving in public international 
organizations or on Intergovernmental Personnel Act assignments, receive 
appropriate consideration for promotion.
    (3) Requirement 3. To be eligible for promotion or placement, 
candidates must meet the minimum qualification standards prescribed by 
the Office of Personnel Management (OPM). Methods of evaluation for 
promotion and placement, and selection for training which leads to 
promotion, must be consistent with instructions in part 300, subpart A, 
of this chapter. Due weight shall be given to performance appraisals and 
incentive awards.
    (4) Requirement 4. Selection procedures will provide for 
management's right to select or not select from among a group of best 
qualified candidates. They will also provide for management's right to 
select from other appropriate sources, such as reemployment priority 
lists, reinstatement, transfer, handicapped, or Veteran Recruitment Act 
eligibles or those within reach on an appropriate OPM certificate. In 
deciding which source or sources to use, agencies have an obligation to 
determine which is most likely to best meet the agency mission 
objectives, contribute fresh ideas and new viewpoints, and meet the 
agency's affirmative action goals.
    (5) Requirement 5. Administration of the promotion system will 
include recordkeeping and the provision of necessary information to 
employees and the public, ensuring that individuals' rights to privacy 
are protected. Each agency must maintain a temporary record of each 
promotion sufficient to allow reconstruction of the promotion action, 
including documentation on how candidates were rated and ranked. These 
records may be destroyed after 2 years or after the program has been

[[Page 228]]

formally evaluated by OPM (whichever comes first) if the time limit for 
grievance has lapsed before the anniversary date.
    (c) Covered personnel actions--(1) Competitive actions. Except as 
provided in paragraphs (c)(2) and (3) of this section, competitive 
procedures in agency promotion plans apply to all promotions under Sec.  
335.102 of this part and to the following actions:
    (i) Time-limited promotions under Sec.  335.102(f) of this part for 
more than 120 days to higher graded positions (prior service during the 
preceding 12 months under noncompetitive time-limited promotions and 
noncompetitive details to higher graded positions counts toward the 120-
day total). A temporary promotion may be made permanent without further 
competition provided the temporary promotion was originally made under 
competitive procedures and the fact that might lead to a permanent 
promotion was made known to all potential candidates;
    (ii) Details for more than 120 days to a higher grade position or to 
a position with higher promotion potential (prior service during the 
preceding 12 months under noncompetitive details to higher graded 
positions and noncompetitive time-limited promotions counts toward the 
120-day total);
    (iii) Selection for training which is part of an authorized training 
agreement, part of a promotion program, or required before an employee 
may be considered for a promotion as specified in Sec.  410.302 of this 
chapter;
    (iv) Reassignment or demotion to a position with more promotion 
potential than a position previously held on a permanent basis in the 
competitive service (except as permitted by reduction-in-force 
regulations);
    (v) Transfer to a position at a higher grade or with more promotion 
potential than a position previously held on a permanent basis in the 
competitive service; and
    (vi) Reinstatement to a permanent or temporary position at a higher 
grade or with more promotion potential than a position previously held 
on a permanent basis in the competitive service.
    (2) Noncompetitive actions. Competitive procedures do not apply to:
    (i) A promotion resulting from the upgrading of a position without 
significant change in the duties and responsibilities due to issuance of 
a new classification standard or the correction of an initial 
classification error; and
    (ii) A position change permitted by reduction-in-force procedures in 
part 351 of this chapter.
    (3) Discretionary actions. Agencies may at their discretion except 
the following actions from competitive procedures of this section:
    (i) A promotion without current competition of an employee who was 
appointed in the competitive from a civil service register, by direct 
hire, by noncompetitive appointment or noncompetitive conversion, or 
under competitive promotion procedures for an assignment intended to 
prepare the employee for the position being filled (the intent must be 
made a matter of record and career ladders must be documented in the 
promotion plan);
    (ii) A promotion resulting from an employee's position being 
classified at a higher grade because of additional duties and 
responsibilies;
    (iii) A temporary promotion, or detail to a higher grade position or 
a position with known promotion potential, of 120 days or less;
    (iv) Promotion to a grade previously held on a permanent basis in 
the competitive service (or in another merit system with which OPM has 
an interchange agreement approved under Sec.  6.7 of this chapter) from 
which an employee was separated or demoted for other than performance or 
conduct reasons;
    (v) Promotion, reassignment, demotion, transfer, reinstatement, or 
detail to a position having promotion potential no greater than the 
potential of a position an employee currently holds or previously held 
on a permanent basis in the competitive service (or in another merit 
system with which OPM has an interchange agreement approved under Sec.  
6.7 of this chapter) and did not lose because of performance or conduct 
reasons; and
    (vi) Consideration of a candidate not given proper consideration in 
a competitive promotion action.

[[Page 229]]

    (vii) Appointments of career SES appointees with competitive service 
reinstatement eligibility to any position for which they qualify in the 
competitive service at any grade or salary level, including Senior-Level 
positions established under 5 CFR Part 319--Employment in Senior-Level 
and Scientific and Professional positions.
    (d) Grievances. Employees have the right to file a complaint 
relating to a promotion action. Such complaints shall be resolved under 
appropriate grievance procedures. The standards for adjudicating 
complaints are set forth in part 300, subpart A, of this chapter. While 
the procedures used by an agency to identify and rank qualified 
candidates may be proper subjects for formal complaints or grievances, 
nonselection from among a group of properly ranked and certified 
candidates is not an appropriate basis for a formal complaint or 
grievance. There is no right of appeal of OPM, but OPM may conduct 
investigations of substantial violations of OPM requirements.

[59 FR 67121, Dec. 29, 1994, as amended at 63 FR 34258, June 24, 1998; 
70 FR 72067, Dec. 1, 2005]



Sec.  335.104  Eligibility for career ladder promotion.

    No employee shall receive a career ladder promotion unless his or 
her current rating of record under part 430 of this chapter is ``Fully 
Successsful'' (level 3) or higher. In addition, no employee may receive 
a career ladder promotion who has a rating below ``Fully Successful'' on 
a critical element that is also critical to performance at the next 
higher grade of the career ladder.

[51 FR 8411, Mar. 11, 1986]



Sec.  335.105  Notice of job announcements to OPM.

    Under 5 U.S.C. 3330, agencies are required to report job 
announcements to OPM for vacancies for which an agency will accept 
applications from outside the agency's work force. This requirement is 
implemented through Sec.  330.707 of subpart G of this chapter.

[66 FR 63906, Dec. 11, 2001]



Sec.  335.106  Special selection procedures for certain veterans under merit promotion.

    Preference eligibles or veterans who have been separated under 
honorable conditions from the armed forces after completing (as 
determined by the agency) 3 or more years of continuous active military 
service may compete for vacancies under merit promotion when an agency 
accepts applications from individuals outside its own workforce. Those 
veterans selected will be given career or career conditional 
appointments under Sec.  315.611 of this chapter.

[65 FR 14432, Mar. 17, 2000]



PART 337_EXAMINING SYSTEM--Table of Contents




                      Subpart A_General Provisions

Sec.
337.101 Rating applicants.
337.102 Evaluating qualifications for employees who are in a retained 
          grade.

                     Subpart B_Direct-Hire Authority

337.201 Coverage and purpose.
337.202 Definitions.
337.203 Public notice requirements.
337.204 Severe shortage of candidates.
337.205 Critical hiring needs.
337.206 Terminations, modifications, extensions, and reporting.

          Subpart C_Alternative Rating and Selection Procedures

337.301 Coverage and purpose.
337.302 Definitions.
337.303 Agency responsibilities.
337.304 Veterans' preference.
337.305 Reporting requirements.

    Authority: 5 U.S.C. 1104(a), 1302, 2302, 3301, 3302, 3304, 3319, 
5364; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; 33 FR 12423, Sept. 4, 
1968; and 45 FR 18365, Mar. 21, 1980; 116 Stat. 2135, 2290; and 117 Stat 
1392, 1665.



                      Subpart A_General Provisions



Sec.  337.101  Rating applicants.

    (a) OPM shall prescribe the relative weights to be given subjects in 
an examination, and shall assign numerical ratings on a scale of 100. 
Except as otherwise provided in this chapter, each applicant who meets 
the minimum requirements for entrance to an examination and is rated 70 
or more in the

[[Page 230]]

examination is eligible for appointment.
    (b) OPM shall add to the earned numerical ratings of applicants who 
make a passing grade:
    (1) Five points for applicants who are preference eligibles under 
section 2108(3)(A) and (B) of title 5, United States Code; and
    (2) Ten points for applicants who are preference eligibles under 
section 2108(3)(C)-(G) of that title.
    (c) When experience is a factor in determining eligibility, OPM 
shall credit a preference eligible with:
    (1) Time spent in the military service (i) as an extension of time 
spent in the position in which he was employed immediately before his 
entrance into the military service, or (ii) on the basis of actual 
duties performed in the military service, or (iii) as a combination of 
both methods. OPM shall credit time spent in the military service 
according to the method that will be of most benefit to the preference 
eligible.
    (2) All valuable experience, including experience gained in 
religious, civic, welfare, service, and organizational activities, 
regardless of whether pay was received therefor.

[33 FR 12423, Sept. 4, 1968, as amended at 72 FR 12954, Mar. 20, 2007]



Sec.  337.102  Evaluating qualifications for employees who are in a retained grade.

    (a) Employees who are in a retained grade must have the experience 
they gain subsequent to the downgrading action that placed them in a 
retained grade considered in the following manner. For placements during 
the period the employee is in a retained grade, agencies must consider 
the experience subsequent to the downgrading action to be either:
    (1) At the level of the retained grade and in the series of the 
position which he or she occupied at the time of the downgrading; or
    (2) At the grade and in the series of the position to which the 
employee is downgraded.
    (b) Agencies must determine which experience to consider on the 
basis of which will most likely result in placement. For placements or 
promotions after the retained grade period, the experience is considered 
only at the grade level and in the series of the position to which the 
employee was downgraded.

[45 FR 18365, Mar. 21, 1980]



                     Subpart B_Direct-Hire Authority

    Source: 69 FR 33275, June 15, 2004, unless otherwise noted.



Sec.  337.201  Coverage and purpose.

    OPM will permit an agency with delegated examining authority under 5 
U.S.C. 1104(a)(2) to use direct-hire authority under 5 U.S.C. 3304(a)(3) 
for a permanent or nonpermanent position or group of positions in the 
competitive service at GS-15 (or equivalent) and below, if OPM 
determines that there is either a severe shortage of candidates or a 
critical hiring need for such positions. It is not required that this 
direct-hire authority be exercised by a delegated examining unit. 
Requests for direct-hire authority must be submitted by the agency's 
Chief Human Capital Officer (or equivalent) at the agency headquarters 
level. OPM will determine the length of the direct-hire authority based 
on the justification.



Sec.  337.202  Definitions.

    In this subpart:
    (a) A direct-hire authority permits hiring without regard to the 
provisions of 5 U.S.C. 3309 through 3318; part 211 of this chapter; and 
subpart A of part 337 of this chapter.
    (b) A severe shortage of candidates for a particular position or 
group of positions means that an agency is having difficulty identifying 
candidates possessing the competencies or the knowledge, skills, and 
abilities required to perform the job requirements despite extensive 
recruitment, extended announcement periods, and the use, as applicable, 
of hiring flexibilities such as recruitment or relocation incentives or 
special salary rates.
    (c) A critical hiring need for a particular position or group of 
positions means that an agency has a need to fill the position(s) to 
meet mission requirements brought about by circumstances such as, but 
not limited to,

[[Page 231]]

a national emergency, threat, potential threat, environmental disaster, 
or unanticipated or unusual event or mission requirement, or to conform 
to the requirements of law, a Presidential directive or Administration 
initiative.



Sec.  337.203  Public notice requirements.

    Agencies must comply with public notice requirements as prescribed 
in 5 U.S.C. 3327 and 3330, and subpart G of part 330 of this chapter 
with respect to any position that an agency seeks to fill using direct-
hire authority.



Sec.  337.204  Severe shortage of candidates.

    (a) OPM will determine when a severe shortage of candidates exists 
for particular occupations, grades (or equivalent), and/or geographic 
locations. OPM may decide independently that such a shortage exists, or 
may make this decision in response to a written request from an agency.
    (b) An agency when requesting direct-hire authority under this 
section, or OPM when deciding independently, must identify the position 
or positions that are difficult to fill and must provide supporting 
evidence that demonstrates the existence of a severe shortage of 
candidates with respect to the position(s). The evidence should include, 
as applicable, information about:
    (1) The results of workforce planning and analysis;
    (2) Employment trends including the local or national labor market;
    (3) The existence of nationwide or geographic skills shortages;
    (4) Agency efforts, including recruitment initiatives, use of other 
appointing authorities (e.g., schedule A, schedule B) and flexibilities, 
training and development programs tailored to the position(s), and an 
explanation of why these recruitment and training efforts have not been 
sufficient;
    (5) The availability and quality of candidates;
    (6) The desirability of the geographic location of the position(s);
    (7) The desirability of the duties and/or work environment 
associated with the position(s); and
    (8) Other pertinent information such as selective placement factors 
or other special requirements of the position, as well as agency use of 
hiring flexibilities such as recruitment or retention allowances or 
special salary rates.
    (c) A department or agency head (other than the Secretary of 
Defense) may determine, pursuant to section 1413 of Public Law 108-136, 
that a shortage of highly qualified candidates exists for certain 
Federal acquisition positions (covered under section 433(g)(1)(A) of 
title 41, United States Code). To make such a determination, the 
deciding agency official must use the supporting evidence prescribed in 
5 CFR 337.204(b)(1)-(8) and must maintain a file of the supporting 
evidence for documentation and reporting purposes.

[69 FR 33275, June 15, 2004, as amended at 70 FR 44847, Aug. 4, 2005]



Sec.  337.205  Critical hiring needs.

    (a) OPM will determine when there is a critical hiring need for 
particular occupations, grades (or equivalent) and/or geographic 
locations. OPM may decide independently that such a need exists or may 
make this decision in response to a written request from an agency.
    (b) An agency when requesting direct-hire authority under this 
section, or OPM when deciding on its own, must:
    (1) Identify the position(s) that must be filled;
    (2) Describe the event or circumstance that has created the need to 
fill the position(s);
    (3) Specify the duration for which the critical need is expected to 
exist; and
    (4) Include supporting evidence that demonstrates why the use of 
other hiring authorities is impracticable or ineffective.



Sec.  337.206  Terminations, modifications, extensions, and reporting.

    (a) Termination and modification. On a periodic basis, for each 
direct-hire authority, OPM will review agency use of the authority to 
ensure proper administration and to determine if continued use of the 
authority is supportable. OPM will terminate or modify a direct-hire 
authority if it determines that there is no longer a severe shortage of 
candidates or a critical hiring need. Likewise, when an agency finds 
there

[[Page 232]]

are adequate numbers of qualified candidates for positions previously 
filled under direct-hire authorities, based on severe shortage of 
candidates, the agency is required to report this change of events to 
OPM. OPM may also terminate an agency's authority when the agency has 
used an authority improperly.
    (b) Extension. OPM may extend direct-hire authority if OPM 
determines, based on relevant, recent, and supportable data, that there 
is or will continue to be a severe shortage of candidates or a critical 
hiring need for particular positions as of the date the authority is due 
to expire. In their requests for extensions of direct-hire authorities, 
agencies must include an update of the supporting evidence that 
demonstrated the need for the original authority.
    (c) Reporting requirement. On a periodic basis, OPM may request 
information from agencies regarding their use of these direct-hire 
authorities. The requested information may include numbers of positions, 
title, series, and grade of positions advertised under the direct-hire 
authority, the number of qualified applicants, the specific 
qualification criteria, and the number of applicants appointed under the 
authority.
    (d) No new appointments may be made under the provisions of section 
1413 of Public Law 108-136 after September 30, 2007; and
    (e) Those departments and agencies, excluding the Department of 
Defense, that use the direct-hire authority provided in Sec.  337.204(c) 
must submit to OPM a report on their implementation of section 1413 of 
Public Law 108-136 no later than December 31, 2006. The report must 
include:
    (1) A description of how the agency's implementation satisfied each 
of the elements laid out in Sec. Sec.  337.203 and 337.204(b)(1)-(8), as 
applicable;
    (2) An assessment of the effectiveness of the authority in 
attracting employees with unusually high qualifications to the 
acquisition workforce; and
    (3) Any recommendations on whether the authority should be extended.

[69 FR 33275, June 15, 2004, as amended at 70 FR 44847, Aug. 4, 2005]



          Subpart C_Alternative Rating and Selection Procedures

    Source: 69 FR 33276, June 15, 2004, unless otherwise noted.



Sec.  337.301  Coverage and purpose.

    This subpart implements the category rating and selection procedures 
at 5 U.S.C. 3319. This law authorizes agencies with delegated examining 
authority under 5 U.S.C. 1104(a)(2) to develop a category rating method 
as an alternative process to assess applicants for jobs filled through 
competitive examining.



Sec.  337.302  Definitions.

    In this subpart:
    (a) Category rating is synonymous with alternative rating as 
described at 5 U.S.C. 3319, and is a process of evaluating qualified 
eligibles by quality categories rather than by assigning individual 
numeric scores. The agency assesses candidates against job-related 
criteria and then places them into two or more pre-defined categories.
    (b) Quality categories are groupings of individuals with similar 
levels of job-related competencies or similar levels of knowledge, 
skills, and abilities.



Sec.  337.303  Agency responsibilities.

    To use a category rating procedure, agencies must:
    (a) Establish a system for evaluating applicants that provides for 
two or more quality categories;
    (b) Define each quality category through job analysis conducted in 
accordance with the ``Uniform Guidelines on Employee Selection 
Procedures'' at 29 CFR part 1607 and part 300 of this chapter. Each 
category must have a clear definition that distinguishes it from other 
categories;
    (c) Describe each quality category in the job announcement and apply 
the provisions of part 330, subparts B, F, and G of this chapter;
    (d) Place applicants into categories based upon their job-related 
competencies or their knowledge, skills, and abilities; and
    (e) Establish documentation and record keeping procedures for 
reconstruction purposes.

[[Page 233]]



Sec.  337.304  Veterans' preference.

    In this subpart:
    (a) Veterans' preference must be applied as prescribed in 5 U.S.C. 
3319(b) and (c)(2);
    (b) Veterans' preference points as prescribed in section 337.101 of 
this part are not applied in category rating; and
    (c) Sections 3319(b) and 3319(c)(2) of title 5, U.S.C. constitute 
veterans' preference requirements for purposes of 5 U.S.C. 
2302(b)(11)(A) and (B).

[71 FR 3409, Jan. 23, 2006]



Sec.  337.305  Reporting requirements.

    Any agency that uses category rating must forward to OPM a copy of 
the annual report that it must submit to Congress pursuant to 5 U.S.C. 
3319(d). Agencies must send their annual reports to the Speaker of the 
House and the President of the Senate. The report must include the 
following information:
    (a) The number of employees hired under the system;
    (b) The impact that system has had on the hiring of veterans and 
minorities, including those who are American Indian or Alaska Natives, 
Asian, Black or African American, and native Hawaiian or other Pacific 
Islanders; and
    (c) The way managers were trained in the administration of category 
rating.



PART 338_QUALIFICATION REQUIREMENTS (GENERAL)--Table of Contents




                   Subpart A_Citizenship Requirements

Sec.
338.101 Citizenship.

Subpart B [Reserved]

                 Subpart C_Consideration for Appointment

338.301 Competitive service appointment.

Subparts D-E [Reserved]

                       Subpart F_Age Requirements

338.601 Prohibition of maximum-age requirements.

    Authority: 5 U.S.C. 3301, 3302, 3304; E.O. 10577, 3 CFR, 1954-1958 
comp., p. 218.



                   Subpart A_Citizenship Requirements



Sec.  338.101  Citizenship.

    (a) A person may be admitted to competitive examination only if he 
is a citizen of or owes permanent allegiance to the United States.
    (b) A person may be given an appointment in the competitive service 
only if he or she is a citizen of or owes permanent allegiance to the 
United States. However, a noncitizen may be given an appointment in rare 
cases under Sec.  316.601 of this chapter, unless the appointment is 
prohibited by statute.
    (c) Paragraph (b) of this section applies to reinstatement and 
transfer as well as to other noncompetitive appointments, and to 
conversion to career or career-conditional employment.

[33 FR 12429, Sept. 4, 1968, as amended at 57 FR 10124, Mar. 24, 1992]

Subpart B [Reserved]



                 Subpart C_Consideration for Appointment



Sec.  338.301  Competitive service appointment.

    Agencies must ensure that employees who are given competitive 
service appointments meet the requirements included in the Office of 
Personnel Management's Operating Manual: Qualification Standards for 
General Schedule Positions. The Operating Manual is available to the 
public for review at agency personnel offices and Federal depository 
libraries, and for purchase from the Government Printing Office.

[62 FR 44535, Aug. 22, 1997]

Subparts D-E [Reserved]



                       Subpart F_Age Requirements



Sec.  338.601  Prohibition of maximum-age requirements.

    A maximum-age requirement may not be applied in either competitive 
or noncompetitive examinations for positions in the competitive service 
except as provided by:

[[Page 234]]

    (a) Section 3307 of title 5, United States Code; or
    (b) Public Law 93-259 which authorizes OPM to establish a maximum-
age requirement after determining that age is an occupational 
qualification necessary to the performance of the duties of the 
position.

[40 FR 42734, Sept. 16, 1975]



PART 339_MEDICAL QUALIFICATION DETERMINATIONS--Table of Contents




                            Subpart A_General

Sec.
339.101 Coverage.
339.102 Purpose and effect.
339.103 Compliance with EEOC regulations.
339.104 Definitions.

              Subpart B_Physical and Medical Qualifications

339.201 Disqualification by OPM.
339.202 Medical standards.
339.203 Physical requirements.
339.204 Waiver of standards and requirements.
339.205 Medical evaluation programs.
339.206 Disqualification on the basis of medical history.

                     Subpart C_Medical Examinations

339.301 Authority to require an examination.
339.302 Authority to offer examinations.
339.303 Examination procedures.
339.304 Payment for examination.
339.305 Records and reports.
339.306 Processing medical eligibility determinations on certificates of 
          eligibles.

    Authority: 5 U.S.C. 3301, 3302, 5112; E.O. 9830, February 24, 1947.

    Source: 54 FR 9763, Mar. 8, 1989, unless otherwise noted.



                            Subpart A_General



Sec.  339.101  Coverage.

    This part applies to all applicants for and employees in competitive 
service positions; and to excepted service employees when medical issues 
arise in connection with an OPM regulation which governs a particular 
personnel decision, for example, removal of a preference eligible 
employee in the excepted service under part 752.



Sec.  339.102  Purpose and effect.

    (a) This part defines the circumstances under which medical 
documentation may be acquired and examinations and evaluations conducted 
to determine the nature of a medical condition which may affect safe and 
efficient performance.
    (b) Personnel decisions based wholly or in part on the review of 
medical documentation and the results of medical examinations and 
evaluations shall be made in accordance with appropriate parts of this 
title.
    (c) Failure to meet a properly established medical standard or 
physical requirement under this part means that the individual is not 
qualified for the position unless a waiver or reasonable accommodation 
is indicated, as described in Sec. Sec.  339.103 and 339.204. An 
employee's refusal to be examined in accordance with a proper agency 
order authorized under this part is grounds for appropriate disciplinary 
or adverse action.

[54 FR 9763, Mar. 8, 1989, as amended at 60 FR 3061, Jan. 13, 1995]



Sec.  339.103  Compliance with EEOC regulations.

    Actions under this part must be consistent with 29 CFR 1613. 701 et 
seq. Particularly relevant to medical qualification determinations are 
Sec.  1613.704 (requiring reasonable accommodation of individuals with 
handicaps); Sec.  1613.705 (prohibiting use of employment criteria that 
screen out individuals with handicaps unless shown to be related to the 
job in question) and Sec.  1614.706 (prohibiting pre-employment 
inquiries related to handicap and pre-employment medical examinations, 
except under specified circumstances). In addition, use of the term 
``qualified'' in these regulations shall be interpreted consistently 
with Sec.  1613.702(f), which provides that a ``qualified handicapped 
person'' is a handicapped person ``who, with or without reasonable 
accommodation, can perform the essential functions of the position in 
question without endangering the health and safety of the individual or 
others.''



Sec.  339.104  Definitions.

    For purposes of this part--

[[Page 235]]

    Accommodation means reasonable accommodation as described in 29 CFR 
1613.704.
    Arduous of hazardous positions means positions that are dangerous or 
physically demanding to such a degree that an incumbent's medical 
condition is necessarily an important consideration in determining 
ability to perform safely and efficiently.
    Medical condition means health impairment which results from injury 
or disease, including psychiatric disease.
    Medical documentation or documentation of a medical condition means 
a statement from a licensed physician or other appropriate practitioner 
which provides information the agency considers necessary to enable it 
to make an employment decision. To be acceptable, the diagnosis or 
clinical impression must be justified according to established 
diagnostic criteria and the conclusions and recommendations must not be 
inconsistent with generally accepted professional standards. The 
determination that the diagnosis meets these criteria is made by or in 
coordination with a physician or, if appropriate, a practitioner of the 
same discipline as the one who issued the statement. An acceptable 
diagnosis must include the following information, or parts identified by 
the agency as necessary and relevant:
    (a) The history of the medical conditions, including references to 
findings from previous examinations, treatment, and responses to 
treatment;
    (b) Clinical findings from the most recent medical evaluation, 
including any of the following which have been obtained: Findings of 
physical examination; results of laboratory tests; X-rays; EKG's and 
other special evaluations or diagnostic procedures; and, in the case of 
psychiatric evaluation of psychological assessment, the findings of a 
mental status examination and the results of psychological tests, if 
appropriate;
    (c) Diagnosis, including the current clinical status;
    (d) Prognosis, including plans for future treatment and an estimate 
of the expected date of full or partial recovery;
    (e) An explanation of the impact of the medical condition on overall 
health and activities, including the basis for any conclusion that 
restrictions or accommodations are or are not warranted, and where they 
are warranted, an explanation of their therapeutic of risk avoiding 
value;
    (f) An explanation of the medical basis for any conclusion which 
indicates the likelihood that the individual is or is not expected to 
suffer sudden or subtle incapacitation by carrying out, with or without 
accommodation, the tasks or duties of a specific position;
    (g) Narrative explanation of the medical basis for any conclusion 
that the medical condition has or has not become static or well 
stabilized and the likelihood that the individual may experience sudden 
or subtle incapacitation as a result of the medical condition. In this 
context, ``static or well-stabilized medical condition'' means a medical 
condition which is not likely to change as a consequence of the natural 
progression of the condition, specifically as a result of the normal 
aging process, or in response to the work environment or the work 
itself. ``Subtle incapacitation'' means gradual, initially imperceptible 
impairment of physical or mental function whether reversible or not 
which is likely to result in performance or conduct deficiencies. 
``Sudden incapacitation'' means abrupt onset of loss of control of 
physical or mental function.
    Medical evaluation program means a program of recurring medical 
examinations or tests established by written agency policy or directive, 
to safeguard the health of employees whose work may subject them or 
others to significant health or safety risks due to occupational or 
environmental exposure or demands.
    Medical standard is a written description of the medical 
requirements for a particular occupation based on a determination that a 
certian level of fitness of health status is required for successful 
performance.
    Physical requirement is a written description of job-related 
physical abilities which are normally considered essential for 
successful performance in a specific position.
    Physician means a licensed Doctor of Medicine or Doctor of 
Osteopathy, or a physician who is serving on active duty

[[Page 236]]

in the uniformed services and is designated by the uniformed service to 
conduct examinations under this part.
    Practitioner means a person providing health services who is not a 
medical doctor, but who is certified by a national organization and 
licensed by a State to provide the service in question.



              Subpart B_Physical and Medical Qualifications



Sec.  339.201  Disqualification by OPM.

    Subject to subpart C of part 731 of this chapter, OPM may deny an 
applicant examination, deny an eligible appointment, and instruct an 
agency to remove an appointee by reason of physical or mental unfitness 
for the position for which he or she has applied, or to which he or she 
has been appointed. An OPM decision under this section is separate and 
distinct from a determination of disability under Sec.  831.502, 
844.103, 844.202, or subpart L of part 831 of this title, and does not 
necessarily entitle the employee to disability retirement under sections 
8337 or 8451 of title 5, United States Code.



Sec.  339.202  Medical standards.

    OPM may establish or approve medical standards for a Governmentwide 
occupation (i.e., an occupation common to more than one agency). An 
agency may establish medical standards for positions that predominate in 
that agency (i.e., where the agency has 50 percent or more of the 
positions in a particular occupation). Such standards must be justified 
on the basis that the duties of the position are arduous or hazardous, 
or require a certain level of health status or fitness because the 
nature of the positions involve a high degree of responsibility toward 
the public or sensitive national security concerns. The rationale for 
establishing the standard must be documented. Standards established by 
OPM or an agency must be:
    (a) Established by written directive and uniformly applied,
    (b) Directly related to the actual requirements of the position.

[54 FR 9763, Mar. 8, 1989, as amended at 66 FR 66710, Dec. 27, 2001]



Sec.  339.203  Physical requirements.

    Agencies are authorized to establish physical requirements for 
individual positions without OPM approval when such requirements are 
considered essential for successful job performance. The requirements 
must be clearly supported by the actual duties of the position and 
documented in the position description.



Sec.  339.204  Waiver of standards and requirements.

    Agencies must waive a medical standard or physical requirement 
established under this part when there is sufficient evidence that an 
applicant or employee, with or without reasonable accommodation, can 
perform the essential duties of the position without endangering the 
health and safety of the individual or others.



Sec.  339.205  Medical evaluation programs.

    Agencies may establish periodic examination or immunization programs 
by written policies or directives to safeguard the health of employees 
whose work may subject them or others to significant health or safety 
risks due to occupational or environmental exposure or demands. The need 
for a medical evaluation program must be clearly supported by the nature 
of the work. The specific positions covered must be identified and the 
applicants or incumbents notified in writing of the reasons for 
including the positions in the program.



Sec.  339.206  Disqualification on the basis of medical history.

    A candidate may not be disqualified for any position solely on the 
basis of medical history. For positions with medical standards or 
physical requirements, or positions subject to medical evaluation 
programs, a history of a particular medical problem may result in 
medical disqualification only if the condition at issue is itself 
disqualifying, recurrence cannot medically be ruled out, and the duties 
of the position are such that a recurrence would pose a reasonable 
probability of substantial harm.

[[Page 237]]



                     Subpart C_Medical Examinations



Sec.  339.301  Authority to require an examination.

    (a) A routine preappointment examination is appropriate only for a 
position which has specific medical standards, physical requirements, or 
is covered by a medical evaluation program established under these 
regulations.
    (b) Subject to Sec.  339.103 of this part, an agency may require an 
individual who has applied for or occupies a position which has medical 
standards or physical requirements or which is part of an established 
medical evaluation program, to report for a medical examination:
    (1) Prior to appointment or selection (including reemployment on the 
basis of full or partial recovery from a medical condition);
    (2) On a regularly recurring, periodic basis after appointment; or
    (3) Whenever there is a direct question about an employee's 
continued capacity to meet the physical or medical requirements of a 
position.
    (c) An agency may require an employee who has applied for or is 
receiving continuation of pay or compensation as a result of an on-the-
job injury or disease to report for an examination to determine medical 
limitations that may affect placement decisions.
    (d) An agency may require an employee who is released from his or 
her competitive level in a reduction in force to undergo a relevant 
medical evaluation if the position to which the employee has 
reassignment rights has medical standards or specific physical 
requirements which are different from those required in the employee's 
current position.
    (e)(1) An agency may order a psychiatric examination (including a 
psychological assessment) only when:
    (i) The result of a current general medical examination which the 
agency has the authority to order under this section indicates no 
physical explanation for behavior or actions which may affect the safe 
and efficient performance of the individual or others, or
    (ii) A phychiatric examination is specifically called for in a 
position having medical standards or subject to a medical evaluation 
program established under this part.
    (2) A psychiatric examination or psychological assessment authorized 
under (i) or (ii) above must be conducted in accordance with accepted 
professional standards, by a licensed practitioner or physician 
authorized to conduct such examinations, and may only be used to make 
legitimate inquiry into a person's mental fitness to successfully 
perform the duties of his or her position without undue hazard to the 
individual or others.



Sec.  339.302  Authority to offer examinations.

    An agency may, at its option, offer a medical examination (including 
a psychiatric evaluation) in any situation where the agency needs 
additional medical documentation to make an informed management 
decision. This may include situations where an individual requests for 
medical reasons a change in duty status, assignment, working conditions, 
or any other benefit or special treatment (including reasonable 
accommodation or reemployment on the basis of full or partial recovery 
from a medical condition) or where the individual has a performance or 
conduct problem which may require agency action. Reasons for offering an 
examination must be documented. An offer of an examination shall be 
carried out and used in accordance with 29 CFR 1613.706.



Sec.  339.303  Examination procedures.

    (a) When an agency orders or offers a medical examination under this 
subpart, it must inform the applicant or employee in writing of its 
reasons for doing so and the consequences of failure to cooperate. (A 
single notification is sufficient to cover a series of regularly 
recurring or periodic examinations ordered under this subpart.)
    (b) The agency designates the examining physician or other 
appropriate practitioner, but must offer the individual an opportunity 
to submit medical documentation from his or her personal physician or 
practitioner. The agency must review and consider all such documentation 
supplied by the individual's personal physician or practitioner.

[[Page 238]]



Sec.  339.304  Payment for examination.

    Agencies shall pay for all examinations ordered or offered under 
this subpart, whether conducted by the agency's physician or the 
applicant's or employee's physician. Applicants and employees must pay 
for a medical examination conducted by a private physician (or 
practitioner) where the purpose of the examination is to secure a 
benefit sought by the applicant or employee.



Sec.  339.305  Records and reports.

    (a) Agencies will receive and maintain all medical documentation and 
records of examinations obtained under this part in accordance with 
instructions provided by OPM, under provisions of 5 CFR part 293, 
subpart E.
    (b) The report of an examination conducted under this subpart must 
be made available to the applicant or employee under the provisions of 
part 297 of this chapter.
    (c) Agencies must forward to the Office of Workers' Compensation 
Programs (OWCP), Department of Labor, a copy of all medical 
documentation and reports of examinations of individuals who are 
receiving or have applied for injury compensation benefits including 
continuation of pay. The agency must also report to the OWCP the failure 
of such individuals to report for examinations that the agency orders 
under this subpart. When the individual has applied for disability 
retirement, this information must be forwarded to OPM.



Sec.  339.306  Processing medical eligibility determinations on certificates of eligibles.

    (a) In accordance with the provisions of this part, agencies are 
authorized to medically disqualify a nonpreference eligible. A 
nonpreference eligible so disqualified has a right to a higher level 
review of the determination within the agency.
    (b) OPM must approve the sufficiency of the agency's reasons to:
    (1) Medically disqualify or pass over a preference eligible on a 
certificate in place of a nonpreference eligible,
    (2) Medically disqualify or pass over a 30 percent or more 
compensably disabled veteran for a position in the U.S. Postal Service 
in favor of a nonpreference eligible,
    (3) Medically disqualify a 30 percent or more compensably disabled 
veteran for assignment to another position in a reduction in force, or
    (4) Medically disqualify a 30 percent or more disabled veteran for 
noncompetitive appointment.



PART 340_OTHER THAN FULL-TIME CAREER EMPLOYMENT (PART-TIME, SEASONAL, ON-CALL, AND INTERMITTENT)--Table of Contents




     Subpart A_Principal Statutory Requirements_Part-Time Employment

Sec.
340.101 Principal statutory requirements.

         Subpart B_Regulatory Requirements_Part-Time Employment

340.201 Regulatory requirements.
340.202 General.
340.203 Technical assistance.
340.204 Agency reporting.

Subpart C [Reserved]

             Subpart D_Seasonal and Intermittent Employment

340.401 Definitions.
340.402 Seasonal employment.
340.403 Intermittent employment.

    Authority: 5 U.S.C. 3401 et seq., unless otherwise noted.

    Source: 44 FR 57380, Oct. 5, 1979, unless otherwise noted.



     Subpart A_Principal Statutory Requirements_Part-Time Employment



Sec.  340.101  Principal statutory requirements.

    This subpart incorporates for the benefit of the user of the 
principal statutory requirements governing part-time career employment, 
as contained in 5 U.S.C. 3401-3408, and related provisions of Public Law 
95-437.

                               Short Title

    Sec. 1. This Act may be cited as the ``Federal Employees Part-Time 
Career Employment Act of 1978''.

[[Page 239]]

                   Congressional Findings and Purpose

    Sec. 2. (a) The Congress finds that--
    (1) many individuals in our society possess great productive 
potential which goes unused because they cannot meet the requirements of 
a standard workweek; and
    (2) part-time permanent employment--
    (A) provides older individuals with a gradual transition into 
retirement;
    (B) provides employment opportunities to handicapped individuals or 
others who require a reduced workweek;
    (C) provides parents opportunities to balance family 
responsibilities with the need for additional income;
    (D) benefits students who must finance their own education or 
vocational training;
    (E) benefits the Government, as an employer, by increasing 
productivity and job satisfaction, while lowering turnover rates and 
absenteeism, offering management more flexibility in meeting work 
requirements, and filling shortages in various occupations; and
    (F) benefits society by offering a needed alternative for those 
individuals who require or prefer shorter hours (despite the reduced 
income), thus increasing jobs available to reduce unemployment while 
retaining the skills of individuals who have training and experience.
    (b) The purpose of this Act is to provide increased part-time career 
employment opportunities throughout the Federal Government.

``Sec.  3401. Definitions

    ``For the purpose of this subchapter--
    ``(1) `agency' means--
    ``(A) an Executive agency;
    ``(B) a military department;
    ``(C) an agency in the judicial branch;
    ``(D) the Library of Congress;
    ``(E) the Botanic Garden; and
    ``(F) the Office of the Architect of the Capitol; but does not 
include--
    ``(i) a Government controlled corporation;
    ``(ii) the Tennessee Valley Authority;
    ``(iii) the Alaska Railroad;
    ``(iv) the Virgin Island Corporation;
    ``(v) the Panama Canal Company;
    ``(vi) the Federal Bureau of Investigation, Department of Justice;
    ``(vii) the Central Intelligence Agency; and
    ``(viii) the National Security Agency, Department of Defense; and
    ``(2) `part-time career employment' means part-time employment of 16 
to 32 hours a week under a schedule consisting of an equal or varied 
number of hours per day, whether in a position which would be part-time 
without regard to this section or one established to allow job-sharing 
or comparable arrangements, but does not include employment on a 
temporary or intermittent basis.

``Sec.  3402. Establishment of part-time career employment programs

    ``(a) (1) In order to promote part-time career employment 
opportunities in all grade levels, the head of each agency, by 
regulation, shall establish and maintain a program for part-time career 
employment within such agency. Such regulations shall provide for--
    ``(A) the review of positions which, after such positions become 
vacant, may be filled on a part-time career employment basis (including 
the establishment of criteria to be used in identifying such positions);
    ``(B) procedures and criteria to be used in connection with 
establishing or converting positions for part-time career employment, 
subject to the limitations of section 3393 of this title;
    ``(C) annual goals for establishing or converting positions for 
part-time career employment, and a timetable setting forth interim and 
final deadlines for achieving such goals;
    ``(D) a continuing review and evaluation of the part-time career 
employment program established under such regulations; and
    ``(E) procedures for notifying the public of vacant part-time 
positions in such agency, utilizing facilities and funds otherwise 
available to such agency for the dissemination of information.
    ``(2) The head of each agency shall provide for communication 
between, and coordination of the activities of, the individuals within 
such agency whose responsibilities relate to the part-time career 
employment program established within that agency.
    ``(3) Regulations established under paragraph (1) of this subsection 
may provide for such exceptions as may be necessary to carry out the 
mission of the agency.
    ``(b) (1) The Civil Service Commission, by regulation, shall 
establish and maintain a program under which it shall, on the request of 
an agency, advise and assist such agency in the establishment and 
maintenance of its part-time career employment program under this 
subchapter.
    ``(2) The Commission shall conduct a research and demonstration 
program with respect to part-time career employment within the Federal 
Government. In particular, such program shall be directed to--
    ``(A) determining the extent to which part-time career employment 
may be used in filling positions which have not traditionally been open 
for such employment on any extensive basis, such as supervisory, 
managerial, and professional positions;
    ``(B) determining the extent to which job-sharing arrangements may 
be established for various occupations and positions; and
    ``(C) evaluating attitudes, benefits, costs, efficiency, and 
productivity associated with part-time career employment, as well as its

[[Page 240]]

various sociological effects as a mode of employment.

``Sec.  3403. Limitations

    ``(a) An agency shall not abolish any position occupied by an 
employee in order to make the duties of such position available to be 
performed on a part-time career employment basis.
    ``(b) Any person who is employed on a full-time basis in an agency 
shall not be required to accept part-time employment as a condition of 
continued employment.

``Sec.  3404. Personnel ceilings

    ``In administering any personnel ceiling applicable to an agency (or 
unit therein), an employee employed by such agency on a part-time career 
employment basis shall be counted as a fraction which is determined by 
dividing 40 hours into the average number of hours of such employee's 
regularly scheduled workweek. This section shall become effective on 
October 1, 1980.

``Sec.  340.101 Nonapplicability

    ``(a) If, on the date of enactment of this subchapter, there is in 
effect with respect to positions within an agency a collective-
bargaining agreement which establishes the number of hours of employment 
a week, then this subchapter shall not apply to those positions.
    ``(b) This subchapter shall not require part-time career employment 
in positions the rate of basic pay for which is fixed at a rate equal to 
or greater than the minimum rate fixed for GS-16 of the General 
Schedule.

``Sec.  340.101 Regulations

    ``Before any regulation is prescribed under this subchapter, a copy 
of the proposed regulation shall be published in the Federal Register 
and an opportunity provided to interested parties to present written 
comment and, where practicable, oral comment. Initial regulations shall 
be prescribed not later than 180 days after the date of the enactment of 
this subchapter.

``Sec.  3407. Reports

    ``(a) Each agency shall prepare and transmit on a biannual basis a 
report to the Office of Personnel Management on its activities under 
this subchapter, including--
    ``(1) details on such agency's progress in meeting part-time career 
employment goals established under section 3392 of this title; and
    ``(2) an explanation of any impediments experienced by such agency 
in meeting such goals or in otherwise carrying out the provisions of 
this subchapter, together with a statement of the measures taken to 
overcome such impediments.
    ``(b) The Commission shall include in its annual report under 
section 1308 of this title a statement of its activities under this 
subchapter, and a description and evaluation of the activities of 
agencies in carrying out the provisions of this subchapter.

``Sec.  3408. Employee organization representation

    ``If an employee organization has been accorded exclusive 
recognition with respect to a unit within an agency, then the employee 
organization shall be entitled to represent all employees within that 
unit employed on a part-time career employment basis.''.

    (b) Subpart B of the table of chapters of part III of the analysis 
of chapter 33 of title 5, United States Code, is amended by inserting 
after the item relating to section 3385 the following:

       ``SUBCHAPTER VII--PART-TIME CAREER EMPLOYMENT OPPORTUNITIES

``Sec.
``3401. Definitions.
``3402. Establishment of part-time career employment programs.
``3403. Limitations.
``3404. Personnel ceilings.
``3405. Nonapplicability.
``3406. Regulations.
``3407. Reports.
``3408. Employee organization representation.
    Sec. 4. (a) Section 8347(g) of title 5, United States Code, is 
amended by adding at the end thereof the following: ``However, the 
Commission may not exclude any employee who occupies a position on a 
part-time career employment basis (as defined in section 3391(2) of this 
title).''.
    (b) Section 8716(b) of such title 5 is amended--
    (1) by striking out of the second sentence ``or part-time'';
    (2) by striking out ``or'' at the end of clause (1);
    (3) by striking out the period at the end of clause (2) and 
inserting in lieu thereof ``; or''; and
    (4) by adding at the end thereof the following:
    ``(3) an employee who is occupying a position on a part-time career 
employment basis (as defined in section 3391(2) of this title).''.
    (c) (1) Section 8913(b) of such title 5 is amended--
    (A) by striking out ``or'' at the end of clause (1);
    (B) by striking out the period at the end of clause (2) and 
inserting in lieu thereof ``; or''; and
    (C) by adding at the end thereof the following:
    ``(3) an employee who is occupying a position on a part-time career 
employment basis (as defined in section 3391(2) of this title).''.
    (2) (A) Section 8906(b) of such title 5 is amended--

[[Page 241]]

    (i) by striking out ``paragraph (2)'' in paragraph (1) and inserting 
in lieu thereof ``paragraphs (2) and (3)''; and
    (ii) by adding at the end thereof the following new paragraph:
    ``(3) In the case of an employee who is occupying a position on a 
part-time career employment basis (as defined in section 3391 (2) of 
this title), the biweekly Government contribution shall be equal to the 
percentage which bears the same ratio to the percentage determined under 
this subsection (without regard to this paragraph) as the average number 
of hours of such employee's regularly scheduled workweek bears to the 
average number of hours in the regularly scheduled workweek of an 
employee serving in a comparable position on a full-time career basis 
(as determined under regulations prescribed by the Commission)''.
    (B) The amendments made by subparagraph (A) shall not apply with 
respect to any employee serving in a position on a part-time career 
employment basis on the date of the enactment of this Act for such 
period as the employee continues to serve without a break in service in 
that or any other position on such part-time basis.
    Sec. 5. Each report prepared by an agency under section 3397(a) of 
title 5, United States Code (as added by this Act), shall, to the extent 
to which part-time career employment opportunities have been extended by 
such agency during the period covered by such report to each group 
referred to in subparagraphs (A), (B), (C), and (D), of section 2(a)(2) 
of this Act.

[44 FR 57380, Oct. 5, 1979, as amended at 49 FR 17722, Apr. 25, 1984]



         Subpart B_Regulatory Requirements_Part-Time Employment

    Source: 44 FR 57380, Oct. 5, 1979; 49 FR 17722, Apr. 25, 1984, 
unless otherwise noted.



Sec.  340.201  Regulatory requirements.

    This subpart contains the regulations of the Office of Personnel 
Management which implement the above sections of chapter 34 (as set out 
in Sec.  340.101).



Sec.  340.202  General.

    (a) Definitions. Part-time career employment means regularly 
scheduled work of from 16 to 32 hours per week performed by an employee 
of an agency as defined in 5 U.S.C. 3401 (a) through (f), who has an 
appointment in tenure group I or II and who becomes employed on such 
part-time basis on or after April 8, 1979.
    Tenure group I applies to employees in the competitive service under 
career appointments who are not serving probation and permanent 
employees in the excepted service whose appointments carry no 
restrictions or conditions.
    Tenure group II applies to employees in the competitive service 
serving probation, career-conditional employees, and career employees in 
obligated positions. It also includes employees in the excepted service 
serving trial periods, whose tenure is indefinite solely because they 
occupy obligated positions; or whose tenure is equivalent to career-
conditional in the competitive service.
    (b) Agency Exceptions. As an exception to the general definition of 
part-time employment in Sec.  340.202(a) and under the authority 
provided in 5 U.S.C. 3402(a)(3), an agency may permit an employee who 
has an appointment in tenure group I or II to perform regularly 
scheduled work of from 1 to 15 hours per week.
    (c) Mixed Tours of Duty. The provisions of this subpart and the term 
``part-time career employment'' do not apply to employees with 
appointments in tenure groups I or II who work under mixed tours of 
duty. For this purpose, a mixed tour of duty consists of annually 
recurring periods of full-time, part-time, or intermittent service as 
long as the employee does not work part-time more than 6 pay periods per 
calendar year.

[44 FR 57380, Oct. 5, 1979, as amended at 49 FR 17722, Apr. 25, 1984; 60 
FR 3061, Jan. 13, 1995]



Sec.  340.203  Technical assistance.

    (a) The Office of Personnel Management shall provide, within 
available resources, consultation and technical advice and assistance to 
agencies to aid them in expanding career part-time employment 
opportunities. This assistance shall include but not be limited to:
    (1) Help in developing part-time career employment programs;
    (2) Information on public and private sector part-time employment 
practices;

[[Page 242]]

    (3) Development of special recruitment and selection techniques for 
filling part-time positions;
    (4) Interpretations of part-time employment law, regulations and 
policy;
    (5) Guidance on job sharing and position restructuring.
    (b) Request for information and assistance should be directed to the 
Associate Director for Staffing Services, Office of Personnel 
Management, 1900 E Street, NW., Washington, DC 20415, or the nearest OPM 
regional office.



Sec.  340.204  Agency reporting.

    (a) Agency reports required under 5 U.S.C. 3407 shall be based on 
data as of March 31 and September 30 each year and shall be provided to 
the Office of Personnel Management no later than May 15 and November 15 
respectively.
    (b) Each agency shall include with such reports a copy of any 
agencywide part-time career employment program regulations and 
instructions issued during the 6-month period preceding the report date.
    (c) Reports should be sent to the Associate Director for Staffing 
Services, Office of Personnel Management, 1900 E Street, NW., 
Washington, DC 20415.

Subpart C [Reserved]



             Subpart D_Seasonal and intermittent Employment

    Source: 60 FR 3061, Jan. 13, 1995, unless otherwise noted.



Sec.  340.401  Definitions.

    (a) Seasonal employment means annually recurring periods of work of 
less than 12 months each year. Seasonal employees are permanent 
employees who are placed in nonduty/nonpay status and recalled to duty 
in accordance with preestablished conditions of employment.
    (b) Intermittent employment means employment without a regularly 
scheduled tour of duty.



Sec.  340.402  Seasonal employment.

    (a) Appropriate use. Seasonal employment allows an agency to develop 
an experienced cadre of employees under career appointment to perform 
work which recurs predictably year-to-year. Consistent with the career 
nature of the appointments, seasonal employees receive the full benefits 
authorized to attract and retain a stable workforce. As a result, 
seasonal employment is appropriate when the work is expected to last at 
least 6 months during a calendar year. Recurring work that lasts less 
than 6 months each year is normally best performed by temporary 
employees. Seasonal employment may not be used as a substitute for full-
time employment or as a buffer for the full-time workforce.
    (b) Length of the season. Agencies determine the length of the 
season, subject to the condition that it be clearly tied to nature of 
the work. The season must be defined as closely as practicable so that 
an employee will have a reasonably clear idea of how much work he or she 
can expect during the year. To minimize the adverse impact of seasonal 
layoffs, an agency may assign seasonal employees to other work during 
the projected layoff period. While in nonpay status, a seasonal employee 
may accept other employment, Federal or non-Federal, subject to the 
regulations on political activity (part 733 of this title) and on 
employee responsibilities and conduct (part 735), as well as applicable 
agency policies. Subject to the limitation on pay from more than one 
position (5 U.S.C. 5533), a seasonal employee may hold more than one 
appointment.
    (c) Employment agreement. An employment agreement must be executed 
between the agency and the seasonal employee prior to the employee's 
entering on duty. At a minimum, the agreement must inform the employee:
    (1) That he or she is subject to periodic release and recall as a 
condition of employment,
    (2) The minimum and maximum period the employee can expect to work,
    (3) The basis on which release and recall procedures will be 
effected, and
    (4) The benefits to which the employee will be entitled while in a 
nonpay status.
    (d) Release and recall procedures. A seasonal employee is released 
to nonpay status at the end of a season and

[[Page 243]]

recalled to duty the next season. Release and recall procedures must be 
established in advance and uniformly applied. They may be based on 
performance, seniority, veterans' preference, other appropriate indices, 
or a combination of factors. A seasonal layoff is not subject to the 
procedures for furlough prescribed in parts 351 and 752 of this title. 
Reduction in force or adverse action procedures, as applicable, are 
required for a seasonal layoff that is not in accordance with the 
employment agreement, for example, if an agency intends to have an 
employee work less than the minimum amount of time specified in the 
employment agreement. However, an agency may develop a new employment 
agreement to reflect changing circumstances.
    (e) Noncompetitive movement. Seasonal employees serving under career 
appointment may move to other positions in the same way as other regular 
career employees.



Sec.  340.403  Intermittent employment.

    (a) Appropriate use. An intermittent work schedule is appropriate 
only when the nature of the work is sporadic and unpredictable so that a 
tour of duty cannot be regularly scheduled in advance. When an agency is 
able to schedule work in advance on a regular basis, it has an 
obligation to document the change in work schedule from intermittent to 
part-time or full-time to ensure proper service credit.
    (b) Noncompetitive movement. Intermittent employees serving under 
career appointment may move to other positions in the same way as other 
regular career employees.



PART 351_REDUCTION IN FORCE--Table of Contents




Subpart A [Reserved]

                      Subpart B_General Provisions

Sec.
351.201 Use of regulations.
351.202 Coverage.
351.203 Definitions.
351.204 Responsibility of agency.
351.205 Authority of OPM.

                     Subpart C_Transfer of Function

351.301 Applicability.
351.302 Transfer of employees.
351.303 Identification of positions with a transferring function.

                     Subpart D_Scope of Competition

351.401 Determining retention standing.
351.402 Competitive area.
351.403 Competitive level.
351.404 Retention register.
351.405 Demoted employees.

                      Subpart E_Retention Standing

351.501 Order of retention--competitive service.
351.502 Order of retention--excepted service.
351.503 Length of service.
351.504 Credit for performance.
351.505 Records.
351.506 Effective date of retention standing.

                Subpart F_Release From Competitive Level

351.601 Order of release from competitive level.
351.602 Prohibitions.
351.603 Actions subsequent to release from competitive level.
351.604 Use of furlough.
351.605 Liquidation provisions.
351.606 Mandatory exceptions.
351.607 Permissive continuing exceptions.
351.608 Permissive temporary exceptions.

             Subpart G_Assignment Rights (Bump and Retreat)

351.701 Assignment involving displacement.
351.702 Qualifications for assignment.
351.703 Exception to qualifications.
351.704 Rights and prohibitions.
351.705 Administrative assignment.

                      Subpart H_Notice to Employee

351.801 Notice period.
351.802 Content of notice.
351.803 Notice of eligibility for reemployment and other placement 
          assistance.
351.804 Expiration of notice.
351.805 New notice required.
351.806 Status during notice period.
351.807 Certification of Expected Separation.

                 Subpart I_Appeals and Corrective Action

351.901 Appeals.
351.902 Correction by agency.

Subpart J [Reserved]

    Authority: 5 U.S.C. 1302, 3502, 3503; sec. 351.801 also issued under 
E.O. 12828, 58 FR 2965.

    Source: 51 FR 319, Jan. 3, 1986, unless otherwise noted.

[[Page 244]]

Subpart A [Reserved]



                      Subpart B_General Provisions



Sec.  351.201  Use of regulations.

    (a)(1) Each agency is responsible for determining the categories 
within which positions are required, where they are to be located, and 
when they are to be filled, abolished, or vacated. This includes 
determining when there is a surplus of employees at a particular 
location in a particular line of work.
    (2) Each agency shall follow this part when it releases a competing 
employee from his or her competitive level by furlough for more than 30 
days, separation, demotion, or reassignment requiring displacement, when 
the release is required because of lack of work; shortage of funds; 
insufficient personnel ceiling; reorganization; the exercise of 
reemployment rights or restoration rights; or reclassification of an 
employee's position die to erosion of duties when such action will take 
effect after an agency has formally announced a reduction in force in 
the employee's competitive area and when the reduction in force will 
take effect within 180 days.
    (b) This part does not require an agency to fill a vacant position. 
However, when an agency, at its discretion, chooses to fill a vacancy by 
an employee who has been reached for release from a competitive level 
for one of the reasons in paragraph (a)(2) of this section, this part 
shall be followed.
    (c) Each agency is responsible for assuring that the provisions in 
this part are uniformly and consistently applied in any one reduction in 
force.
    (d) An agency authorized to administer foreign national employee 
programs under section 408 of the Foreign Service Act of 1980 (22 U.S.C. 
3968) may include special plans for reduction in force in its foreign 
national employee programs. In these special plans an agency may give 
effect to the labor laws and practices of the locality of employment by 
supplementing the selection factors in subparts D and E of this part to 
the extent consistent with the public interest. Subpart I of this part 
does not apply to actions taken under the special plans authorized by 
this paragraph.



Sec.  351.202  Coverage.

    (a) Employees covered. Except as provided in paragraph (b) of this 
section, this part applies to each civilian employee in:
    (1) The executive branch of the Federal Government; and
    (2) Those parts of the Federal Government outside the executive 
branch which are subject by statute to competitive service requirements 
or are determined by the appropriate legislative or judicial 
administrative body to be covered hereunder. Coverage includes 
administrative law judges except as modified by part 930 of this 
chapter.
    (b) Employees excluded. This part does not apply to an employee:
    (1) In a position in the Senior Executive Service; or
    (2) Whose appointment is required by Congress to be confirmed by, or 
made with the advice and consent of, the United States Senate, except a 
postmaster.
    (c) Actions excluded. This part does not apply to:
    (1) The termination of a temporary or term promotion or the return 
of an employee to the position held before the temporary or term 
promotion or to one of equivalent grade and pay.
    (2) A change to lower grade based on the reclassification of an 
employee's position due to the application of new classification 
standards or the correction of a classification error.
    (3) A change to lower grade based on reclassification of an 
employee's position due to erosion of duties, except that this exclusion 
does not apply to such reclassification actions that will take effect 
after an agency has formally announced a reduction in force in the 
employee's competitive area and when the reduction in force will take 
effect within 180 days. This exception ends at the completion of the 
reduction in force.
    (4) The change of an employee from regular to substitute in the same 
pay level in the U.S. Postal Service field service.
    (5) The release from a competitive level of a National Guard 
technician

[[Page 245]]

under section 709 of title 32, United States Code.
    (6) Placement of an employee serving on an intermittent, part-time, 
on-call, or seasonal basis in a nonpay and nonduty status in accordance 
with conditions established at time of appointment.
    (7) A change in an employee's work schedule from other-than-full-
time to full-time. (A change from full-time to other than full-time for 
a reason covered in Sec.  351.201(A)(2) is covered by this part.)

[51 FR 319, Jan. 3, 1986, as amended at 60 FR 3062, Jan. 13, 1995]



Sec.  351.203  Definitions.

    In this part:
    Competing employee means an employee in tenure group I, II, or III.
    Current rating of record is the rating of record for the most 
recently completed appraisal period as provided in Sec.  351.504(b)(3).
    Days means calendar days.
    Function means all or a clearly identifiable segment of an agency's 
mission (including all integral parts of that mission), regardless of 
how it is performed.
    Furlough under this part means the placement of an employee in a 
temporary nonduty and nonpay status for more than 30 consecutive 
calendar days, or more than 22 workdays if done on a discontinuous 
basis, but not more than 1 year.
    Local commuting area means the geographic area that usually 
constitutes one area for employment purposes. It includes any population 
center (or two or more neighboring ones) and the surrounding localities 
in which people live and can reasonably be expected to travel back and 
forth daily to their usual employment.
    Modal rating is the summary rating level assigned most frequently 
among the actual ratings of record that are:
    (1) Assigned under the summary level pattern that applies to the 
employee's position of record on the date of the reduction in force;
    (2) Given within the same competitive area, or at the agency's 
option within a larger subdivision of the agency or agencywide; and
    (3) On record for the most recently completed appraisal period prior 
to the date of issuance of reduction in force notices or the cutoff date 
the agency specifies prior to the issuance of reduction in force notices 
after which no new ratings will be put on record.
    Rating of record has the meaning given that term in Sec.  430.203 of 
this chapter. For an employee not subject to 5 U.S.C. Chapter 43, or 
part 430 of this chapter, it means the officially designated performance 
rating, as provided for in the agency's appraisal system, that is 
considered to be an equivalent rating of record under the provisions of 
Sec.  430.201(c) of this chapter.
    Reorganization means the planned elimination, addition, or 
redistribution of functions or duties in an organization.
    Representative rate means the fourth step of the grade for a 
position subject to the General Schedule, the prevailing rate for a 
position under a wage-board or similar wage-determining procedure, and 
for other positions, the rate designated by the agency as representative 
of the position.
    Transfer of function means the transfer of the performance of a 
continuing function from one competitive area and its addition to one or 
more other competitive areas, except when the function involved is 
virtually identical to functions already being performed in the other 
competitive area(s) affected; or the movement of the competitive area in 
which the function is performed to another commuting area.
    Undue interruption means a degree of interruption that would prevent 
the completion of required work by the employee 90 days after the 
employee has been placed in a different position under this part. The 
90-day standard should be considered within the allowable limits of time 
and quality, taking into account the pressures of priorities, deadlines, 
and other demands. However, a work program would generally not be unduly 
interrupted even if an employee needed more than 90 days after the 
reduction in force to perform the optimum quality or quantity of work. 
The 90-day standard may be extended if placement is made under this

[[Page 246]]

part to a low priority program or to a vacant position.

[51 FR 319, Jan. 3, 1986, as amended at 58 FR 65533, Dec. 15, 1993; 60 
FR 3062, Jan. 13, 1995; 62 FR 62500, Nov. 24, 1997]



Sec.  351.204  Responsibility of agency.

    Each agency covered by this part is responsible for following and 
applying the regulations in this part when the agency determines that a 
reduction force is necessary.



Sec.  351.205  Authority of OPM.

    The Office of Personnel Management may establish further guidance 
and instructions for the planning, preparation, conduct, and review of 
reductions in force. OPM may examine an agency's preparations for 
reduction in force at any stage. When OPM finds that an agency's 
preparations are contrary to the express provisions or to the spirit and 
intent of these regulations or that they would result in violation of 
employee rights or equities, OPM may require appropriate corrective 
action.

[51 FR 319, Jan. 3, 1986, as amended at 66 FR 66710, Dec. 27, 2001]



                     Subpart C_Transfer of Function

    Source: 52 FR 10024, Mar. 30, 1987, unless otherwise noted.



Sec.  351.301  Applicability.

    (a) This subpart is applicable when the work of one or more 
employees is moved from one competitive area to another as a transfer of 
function regardless of whether or not the movement is made under 
authority of a statute, Executive order, reorganization plan, or other 
authority.
    (b) In a transfer of function, the function must cease in the losing 
competitive area and continue in an identical form in the gaining 
competitive area (i.e., in the gaining competitive area, the function 
continues to be carried out by competing employees rather than by 
noncompeting employees).

[52 FR 10024, Mar. 30, 1987, as amended at 60 FR 3062, Jan. 13, 1995]



Sec.  351.302  Transfer of employees.

    (a) Before a reduction in force is made in connection with the 
transfer of any or all of the functions of a competitive area to another 
continuing competitive area, each competing employee in a position 
identified with the transferring function or functions shall be 
transferred to the continuing competitive area without any change in the 
tenure of his or her employment.
    (b) An employee whose position is transferred under this subpart 
solely for liquidation, and who is not identified with an operating 
function specifically authorized at the time of transfer to continue in 
operation more than 60 days, is not a competing employee for other 
positions in the competitive area gaining the function.
    (c) Regardless of an employee's personal preference, an employee has 
no right to transfer with his or her function, unless the alternative in 
the competitive area losing the function is separation or demotion.
    (d) Except as permitted in paragraph (e) of this section, the losing 
competitive area must use the adverse action procedures found in 5 CFR 
part 752 if it chooses to separate an employee who declines to transfer 
with his or her function.
    (e) The losing competitive area may, at its discretion, include 
employees who decline to transfer with their function as part of a 
concurrent reduction in force.
    (f) An agency may not separate an employee who declines to transfer 
with the function any sooner than it transfers employees who chose to 
transfer with the function to the gaining competitive area.
    (g) Agencies may ask employees in a canvass letter whether the 
employee wishes to transfer with the function when the function 
transfers to a different local commuting area. The canvass letter must 
give the employee information concerning entitlements available to the 
employee if the employee accepts the offer to transfer, and if the 
employee declines the offer to transfer. An employee may later change 
and initial acceptance offer without penalty. However, an employee may 
not later change an initial declination of the offer to transfer.

[52 FR 10024, Mar. 30, 1987, as amended at 60 FR 3062, Jan. 13, 1995]

[[Page 247]]



Sec.  351.303  Identification of positions with a transferring function.

    (a) The competitive area losing the function is responsible for 
identifying the positions of competing employees with the transferring 
function. A competing employee is identified with the transferring 
function on the basis of the employee's official position. Two methods 
are provided to identify employees with the transferring function:
    (1) Identification Method One; and
    (2) Identification Method Two.
    (b) Identification Method One must be used to identify each position 
to which it is applicable. Identification Method Two is used only to 
identify positions to which Identification Method One is not applicable.
    (c) Under Identification Method One, a competing employee is 
identified with a transferring function if--
    (1) The employee performs the function during at least half of his 
or her work time; or
    (2) Regardless of the amount of time the employee performs the 
function during his or her work time, the function performed by the 
employee includes the duties controlling his or her grade or rate of 
pay.
    (3) In determining what percentage of time an employee performs a 
function in the employee's official position, the agency may supplement 
the employee's official position description by the use of appropriate 
records (e.g., work reports, organizational time logs, work schedules, 
etc.).
    (d) Identification Method Two is applicable to employees who perform 
the function during less than half of their work time and are not 
otherwise covered by Identification Method One. Under Identification 
Method Two, the losing competitive area must identify the number of 
positions it needed to perform the transferring function. To determine 
which employees are identified for transfer, the losing competitive area 
must establish a retention register in accordance with this part that 
includes the name of each competing employee who performed the function. 
Competing employees listed on the retention register are identified for 
transfer in the inverse order of their retention standing. If for any 
retention register this procedure would result in the separation or 
demotion by reduction in force at the losing competitive area of any 
employee with higher retention standing, the losing competitive area 
must identify competing employees on that register for transfer in the 
order of their retention standing.
    (e)(1) The competitive area losing the function may permit other 
employees to volunteer for transfer with the function in place of 
employees identified under Identification Method One or Identification 
Method Two. However, the competitive area may permit these other 
employees to volunteer for transfer only if no competing employee who is 
identified for transfer under Identification Method One or 
Identification Method Two is separated or demoted solely because a 
volunteer transferred in place of him or her to the competitive area 
that is gaining the function.
    (2) If the total number of employees who volunteer for transfer 
exceeds the total number of employees required to perform the function 
in the competitive area that is gaining the function, the losing 
competitive area may give preference to the volunteers with the highest 
retention standing, or make selections based on other appropriate 
criteria.

[52 FR 10024, Mar. 30, 1987, as amended at 60 FR 3062, Jan. 13, 1995]



                     Subpart D_Scope of Competition



Sec.  351.401  Determining retention standing.

    Each agency shall determine the retention standing of each competing 
employee on the basis of the factors in this subpart and in subpart E of 
this part.



Sec.  351.402  Competitive area.

    (a) Each agency shall establish competitive areas in which employees 
compete for retention under this part.
    (b) A competitive area must be defined solely in terms of the 
agency's organizational unit(s) and geographical location, and it must 
include all employees within the competitive area so defined. A 
competitive area may consist of all or part of an agency. The minimum 
competitive area is a subdivision of the agency under separate

[[Page 248]]

administration within the local commuting area.
    (c) When a competitive area will be in effect less than 90 days 
prior to the effective date of a reduction in force, a description of 
the competitive area shall be submitted to the OPM for approval in 
advance of the reduction in force. Descriptions of all competitive areas 
must be made readily available for review.
    (d) Each agency shall establish a separate competitive area for each 
Inspector General activity established under authority of the Inspector 
General Act of 1978, Public Law 95-452, as amended, in which only 
employees of that office shall compete for retention under this part.

[51 FR 319 Jan. 3, 1986, as amended at 56 FR 65416, Dec. 17, 1991; 62 FR 
62500, Nov. 24, 1997]



Sec.  351.403  Competitive level.

    (a)(1) Each agency shall establish competitive levels consisting of 
all positions in a competitive area which are in the same grade (or 
occupational level) and classification series, and which are similar 
enough in duties, qualification requirements, pay schedules, and working 
conditions so that an agency may reassign the incumbent of one position 
to any of the other positions in the level without undue interruption.
    (2) Competitive level determinations are based on each employee's 
official position, not the employee's personal qualifications.
    (3) Sex may not be the basis for a competitive level determination, 
except for a position OPM designates that certification of eligibles by 
sex is justified.
    (4) A probationary period required by subpart I of part 315 of this 
chapter for initial appointment to a supervisory or managerial position 
is not a basis for establishing a separate competitive level.
    (b) Each agency shall establish separate competitive levels 
according to the following categories:
    (1) By service. Separate levels shall be established for positions 
in the competitive service and in the excepted service.
    (2) By appointment authority. Separate levels shall be established 
for excepted service positions filled under different appointment 
authorities.
    (3) By pay schedule. Separate levels shall be established for 
positions under different pay schedules.
    (4) By work schedule. Separate levels shall be established for 
positions filled on a full-time, part-time, intermittent, seasonal, or 
on-call basis. No distinction may be made among employees in the 
competitive level on the basis of the number of hours or weeks scheduled 
to be worked.
    (5) By trainee status. Separate levels shall be established for 
positions filled by an employee in a formally designated trainee or 
developmental program having all of the characteristics covered in Sec.  
351.702(e)(1) through (e)(4) of this part.
    (c) An agency may not establish a competitive level based solely 
upon:
    (1) A difference in the number of hours or weeks scheduled to be 
worked by other-than-full-time employees who would otherwise be in the 
same competitive level;
    (2) A requirement to work changing shifts;
    (3) The grade promotion potential of the position; or
    (4) A difference in the local wage areas in which wage grade 
positions are located.

[51 FR 319, Jan. 3, 1986, as amended at 60 FR 3062, Jan. 13, 1995; 62 FR 
62500, Nov. 24, 1997]



Sec.  351.404  Retention register.

    (a) When a competing employee is to be released from a competitive 
level under this part, the agency shall establish a separate retention 
register for that competitive level. The retention register is prepared 
from the current retention records of employees. Upon displacing another 
employee under this part, an employee retains the same status and tenure 
in the new position. Except for an employee on military duty with a 
restoration right, the agency shall enter on the retention register, in 
the order of retention standing, the name of each competing employee who 
is:
    (1) In the competitive level;
    (2) Temporarily promoted from the competitive level by temporary or 
term promotion; or

[[Page 249]]

    (3) Detailed from the competitive level under 5 U.S.C. 3341 or other 
appropriate authority.
    (b)(1) The name of each employee serving under a time limited 
appointment or promotion to a position in a competitive level shall be 
entered on a list apart from the retention register for that competitive 
level, along with the expiration date of the action.
    (2) The agency shall list, at the bottom of the list prepared under 
paragraph (b)(1) of this section, the name of each employee in the 
competitive level with a written decision of removal under part 432 or 
752 of this chapter.

[51 FR 319, Jan. 3, 1986, as amended at 62 FR 62500, Nov. 24, 1997]



Sec.  351.405  Demoted employees.

    An employee who has received a written decision under part 432 or 
752 of this chapter to demote him or her competes under this part from 
the position to which he or she will be or has been demoted.

[62 FR 62500, Nov. 24, 1997]



                      Subpart E_Retention Standing



Sec.  351.501  Order of retention--competitive service.

    (a) Competing employees shall be classified on a retention register 
on the basis of their tenure of employment, veteran preference, length 
of service, and performance in descending order as follows:
    (1) By tenure group I, group II, group III; and
    (2) Within each group by veteran preference subgroup AD, subgroup A, 
subgroup B; and
    (3) Within each subgroup by years of service as augmented by credit 
for performance under Sec.  351.504, beginning with the earliest service 
date.
    (b) Groups are defined as follows:
    (1) Group I includes each career employee who is not serving a 
probationary period. (A supervisory or managerial employee serving a 
probationary period required by subpart I of part 315 of this title is 
in group I if the employee is otherwise eligible to be included in this 
group.) The following employees are in group I as soon as the employee 
completes any required probationary period for initial appointment:
    (i) An employee for whom substantial evidence exists of eligibility 
to immediately acquire status and career tenure, and whose case is 
pending final resolution by OPM (including cases under Executive Order 
10826 to correct certain administrative errors);
    (ii) An employee who acquires competitive status and satisfies the 
service requirement for career tenure when the employee's position is 
brought into the competitive service;
    (iii) An administrative law judge;
    (iv) An employee appointed under 5 U.S.C. 3104, which provides for 
the employment of specially qualified scientific or professional 
personnel, or a similar authority; and
    (v) An employee who acquires status under 5 U.S.C. 3304(c) on 
transfer to the competitive service from the legislative or judicial 
branches of the Federal Government.
    (2) Group II includes each career-conditional employee, and each 
employee serving a probationary period under subpart H of part 315 of 
this chapter. (A supervisory or managerial employee serving a 
probationary period required by subpart I of part 315 of this title is 
in group II if the employee has not completed a probationary period 
under subpart H of part 315 of this title.) Group II also includes an 
employee when substantial evidence exists of the employee's eligibility 
to immediately acquire status and career-conditional tenure, and the 
employee's case is pending final resolution by OPM (including cases 
under Executive Order 10826 to correct certain administrative errors).
    (3) Group III includes all employees serving under indefinite 
appointments, temporary appointments pending establishment of a 
register, status quo appointments, term appointments, and any other 
nonstatus nontemporary appointments which meet the definition of 
provisional appointments contained in Sec. Sec.  316.401 and 316.403 of 
this chapter.
    (c) Subgroups are defined as follows:
    (1) Subgroup AD includes each preference eligible employee who has a 
compensable service-connected disability of 30 percent or more.

[[Page 250]]

    (2) Subgroup A includes each preference eligible employee not 
included in subgroup AD.
    (3) Subgroup B includes each nonpreference eligible employee.
    (d) A retired member of a uniformed service is considered a 
preference eligible under this part only if the member meets at least 
one of the conditions of the following paragraphs (d)(1), (2), or (3) of 
this section, except as limited by paragraph (d)(4) or (d)(5):
    (1) The employee's military retirement is based on disability that 
either:
    (i) Resulted from injury or disease received in the line of duty as 
a direct result of armed conflict; or
    (ii) Was caused by an instrumentality of war incurred in the line of 
duty during a period of war as defined by sections 101 and 301 of title 
38, United States Code.
    (2) The employee's retired pay from a uniformed service is not based 
upon 20 or more years of full-time active service, regardless of when 
performed but not including periods of active duty for training.
    (3) The employee has been continuously employed in a position 
covered by this part since November 30, 1964, without a break in service 
of more than 30 days.
    (4) An employee retired at the rank of major or above (or 
equivalent) is considered a preference eligible under this part if such 
employee is a disabled veteran as defined in section 2108(2) of title 5, 
United States Code, and meets one of the conditions covered in paragraph 
(d)(1), (2), or (3) of this section.
    (5) An employee who is eligible for retired pay under chapter 67 of 
title 10, United States Code, and who retired at the rank of major or 
above (or equivalent) is considered a preference eligible under this 
part at age 60, only if such employee is a disabled veteran as defined 
in section 2108(2) of title 5, United States Code.

[51 FR 319, Jan. 3, 1986, as amended at 56 FR 10142, Mar. 11, 1991; 60 
FR 3062, Jan. 13, 1995; 62 FR 62500, Nov. 24, 1997]



Sec.  351.502  Order of retention--excepted service.

    (a) Competing employees shall be classified on a retention register 
in tenure groups on the basis of their tenure of employment, veteran 
preference, length of service, and performance in descending order as 
set forth under Sec.  351.501(a) for competing employees in the 
competitive service.
    (b) Groups are defined as follows:
    (1) Group I includes each permanent employee whose appointment 
carries no restriction or condition such as conditional, indefinite, 
specific time limit, or trial period.
    (2) Group II includes each employee:
    (i) Serving a trial period; or
    (ii) Whose tenure is equivalent to a career-conditional appointment 
in the competitive service in agencies having such excepted 
appointments.
    (3) Group III includes each employee:
    (i) Whose tenure is indefinite (i.e., without specific time limit), 
but not actually or potentially permanent;
    (ii) Whose appointment has a specific time limitation of more than 1 
year; or
    (iii) Who is currently employed under a temporary appointment 
limited to 1 year or less, but who has completed 1 year of current 
continuous service under a temporary appointment with no break in 
service of 1 workday or more.

[60 FR 3063, Jan. 13, 1995]



Sec.  351.503  Length of service.

    (a) All civilian service as a Federal employee, as defined in 5 
U.S.C. 2105(a), is creditable for purposes of this part. Civilian 
service performed in employment that does not meet the definition of 
Federal employee set forth in 5 U.S.C. 2105(a) is creditable for 
purposes of this part only if specifically authorized by statute as 
creditable for retention purposes.
    (b)(1) As authorized by 5 U.S.C. 3502(a)(A), all active duty in a 
uniformed service, as defined in 5 U.S.C. 2101(3), is creditable for 
purposes of this part, except as provided in paragraphs (b)(2) and 
(b)(3) of this section.
    (2) As authorized by 5 U.S.C. 3502(a)(B), a retired member of a 
uniformed service who is covered by Sec.  351.501(d) is entitled to 
credit under this part only for:
    (i) The length of time in active service in the Armed Forces during 
a war, or in a campaign or expedition for which a campaign or expedition 
badge has been authorized; or

[[Page 251]]

    (ii) The total length of time in active service in the Armed Forces 
if the employee is considered a preference eligible under 5 U.S.C. 2108 
and 5 U.S.C. 3501(a), as implemented in Sec.  351.501(d).
    (3) An employee may not receive dual service credit for purposes of 
this part for service performed on active duty in the Armed Forces that 
was performed during concurrent civilian employment as a Federal 
employee, as defined in 5 U.S.C. 2105(a).
    (c)(1) The agency is responsible for establishing both the service 
computation date, and the adjusted service computation date, applicable 
to each employee competing for retention under this part. If applicable, 
the agency is also responsible for adjusting the service computation 
date and the adjusted service computation date to withhold retention 
service credit for noncreditable service.
    (2) The service computation date includes all actual creditable 
service under paragraph (a) and paragraph (b) of this section.
    (3) The adjusted service computation date includes all actual 
creditable service under paragraph (a) and paragraph (b) of this 
section, and additional retention service credit for performance 
authorized by Sec.  351.504 (d) and (e).
    (d) The service computation date is computed on the following basis:
    (1) The effective date of appointment as a Federal employee under 5 
U.S.C. 2105(a) when the employee has no previous creditable service 
under paragraph (a) or (b) of this section; or if applicable,
    (2) The date calculated by subtracting the employee's total previous 
creditable service under paragraph (a) or (b) of this section from the 
most recent effective date of appointment as a Federal employee under 5 
U.S.C. 2105(a).
    (e) The adjusted service computation date is calculated by 
subtracting from the date in paragraph (d)(1) or (d)(2) of this section 
the additional service credit for retention authorized by Sec.  
351.504(d) and (e).

[64 FR Apr. 7, 1999; 64 FR 23531, May 3, 1999]



Sec.  351.504  Credit for performance.

    Note to Sec.  351.504: Compliance dates: Subject to the requirements 
of 5 U.S.C. Section 7116(a)(7), agencies may implement revised Sec.  
351.504 at any time between December 24, 1997 and October 1, 1998. For 
reduction in force actions effective between December 24, 1997 and 
September 30, 1998, agencies may use either Sec.  351.504 effective 
December 24, 1997, or the prior Sec.  351.504 in 5 CFR part 351 (January 
1, 1997 edition).

    (a) Ratings used. (1) Only ratings of record as defined in Sec.  
351.203 shall be used as the basis for granting additional retention 
service credit in a reduction in force.
    (2) For employees who received ratings of record while covered by 
part 430, subpart B, of this chapter, those ratings of record shall be 
used to grant additional retention service credit in a reduction in 
force.
    (3) For employees who received performance ratings while not covered 
by the provisions of 5 U.S.C. Chapter 43 and part 430, subpart B, of 
this chapter, those performance ratings shall be considered ratings of 
record for granting additional retention service credit in a reduction 
in force only when it is determined that those performance ratings are 
equivalent ratings of record under the provisions of Sec.  430.201(c) of 
this chapter. The agency conducting the reduction in force shall make 
that determination.
    (b)(1) An employee's entitlement to additional retention service 
credit for performance under this subpart shall be based on the 
employee's three most recent ratings of record received during the 4-
year period prior to the date of issuance of reduction in force notices, 
except as otherwise provided in paragraphs (b)(2) and (c) of this 
section.
    (2) To provide adequate time to determine employee retention 
standing, an agency may provide for a cutoff date, a specified number of 
days prior to the issuance of reduction in force notices after which no 
new ratings of record will be put on record and used for purposes of 
this subpart. When a cutoff date is used, an employee will receive 
performance credit for the three most recent ratings of record received 
during the 4-year period prior to the cutoff date.
    (3) To be creditable for purposes of this subpart, a rating of 
record must have been issued to the employee, with all appropriate 
reviews and signatures, and must also be on record (i.e., the

[[Page 252]]

rating of record is available for use by the office responsible for 
establishing retention registers).
    (4) The awarding of additional retention service credit based on 
performance for purposes of this subpart must be uniformly and 
consistently applied within a competitive area, and must be consistent 
with the agency's appropriate issuance(s) that implement these policies. 
Each agency must specify in its appropriate issuance(s):
    (i) The conditions under which a rating of record is considered to 
have been received for purposes of determining whether it is within the 
4-year period prior to either the date the agency issues reduction in 
force notices or the agency-established cutoff date for ratings of 
record, as appropriate; and
    (ii) If the agency elects to use a cutoff date, the number of days 
prior to the issuance of reduction in force notices after which no new 
ratings of record will be put on record and used for purposes of this 
subpart.
    (c) Missing ratings. Additional retention service credit for 
employees who do not have three actual ratings of record during the 4-
year period prior to the date of issuance of reduction in force notices 
or the 4-year period prior to the agency-established cutoff date for 
ratings of record permitted in paragraph (b)(2) of this section shall be 
determined under paragraphs (d) or (e) of this section, as appropriate, 
and as follows:
    (1) An employee who has not received any rating of record during the 
4-year period shall receive credit for performance based on the modal 
rating for the summary level pattern that applies to the employee's 
official position of record at the time of the reduction in force.
    (2) An employee who has received at least one but fewer than three 
previous ratings of record during the 4-year period shall receive credit 
for performance on the basis of the value of the actual rating(s) of 
record divided by the number of actual ratings received. If an employee 
has received only two actual ratings of record during the period, the 
value of the ratings is added together and divided by two (and rounded 
in the case of a fraction to the next higher whole number) to determine 
the amount of additional retention service credit. If an employee has 
received only one actual rating of record during the period, its value 
is the amount of additional retention service credit provided.
    (d) Single rating pattern. If all employees in a reduction in force 
competitive area have received ratings of record under a single pattern 
of summary levels as set forth in Sec.  430.208(d) of this chapter, the 
additional retention service credit provided to employees shall be 
expressed in additional years of service and shall consist of the 
mathematical average (rounded in the case of a fraction to the next 
higher whole number) of the employee's applicable ratings of record, 
under paragraphs (b)(1) and (c) of this section computed on the 
following basis:
    (1) Twenty additional years of service for each rating of record 
with a Level 5 (Outstanding or equivalent) summary;
    (2) Sixteen additional years of service for each rating of record 
with a Level 4 summary; and
    (3) Twelve additional years of service for each rating of record 
with a Level 3 (Fully Successful or equivalent) summary.
    (e) Multiple rating patterns. If an agency has employees in a 
competitive area who have ratings of record under more than one pattern 
of summary levels, as set forth in Sec.  430.208(d) of this chapter, it 
shall consider the mix of patterns and provide additional retention 
service credit for performance to employees expressed in additional 
years of service in accordance with the following:
    (1) Additional years of service shall consist of the mathematical 
average (rounded in the case of a fraction to the next higher whole 
number) of the additional retention service credit that the agency 
established for the summary levels of the employee's applicable 
rating(s) of record.
    (2) The agency shall establish the amount of additional retention 
service credit provided for summary levels only in full years; the 
agency shall not establish additional retention service credit for 
summary levels below Level 3 (Fully Successful or equivalent).
    (3) When establishing additional retention service credit for the 
summary

[[Page 253]]

levels at Level 3 (Fully Successful or equivalent) and above, the agency 
shall establish at least 12 years, and no more than 20 years, additional 
retention service credit for a summary level.
    (4) The agency may establish the same number of years additional 
retention service credit for more than one summary level.
    (5) The agency shall establish the same number of years additional 
retention service credit for all ratings of record with the same summary 
level in the same pattern of summary levels as set forth in Sec.  
430.208(d) of this chapter.
    (6) The agency may establish a different number of years additional 
retention service credit for the same summary level in different 
patterns.
    (7) In implementing paragraph (e) of this section, the agency shall 
specify the number(s) of years additional retention service credit that 
it will establish for summary levels. This information shall be made 
readily available for review.
    (8) The agency may apply paragraph (e) of this section only to 
ratings of record put on record on or after October 1, 1997. The agency 
shall establish the additional retention service credit for ratings of 
record put on record prior to that date in accordance with paragraph (d) 
of this section.

[62 FR 62501, Nov. 24, 1997]



Sec.  351.505  Records.

    (a) The agency is responsible for maintaining correct personnel 
records that are used to determine the retention standing of its 
employees competing for retention under this part.
    (b) The agency must allow its retention registers and related 
records to be inspected by:
    (1) An employee of the agency who has received a specific reduction 
in force notice, and/or the employee's representative if the 
representative is acting on behalf of the individual employee; and
    (2) An authorized representative of OPM.
    (c) An employee who has received a specific notice of reduction in 
force under authority of subpart H of this part has the right to review 
any completed records used by the agency in a reduction in force action 
that was taken, or will be taken, against the employee, including:
    (1) The complete retention register with the released employee's 
name and other relevant retention information (including the names of 
all other employees listed on that register, their individual service 
computation dates calculated under Sec.  351.503(d), and their adjusted 
service computation dates calculated under Sec.  351.503(e)) so that the 
employee may consider how the agency constructed the competitive level, 
and how the agency determined the relative retention standing of the 
competing employees; and
    (2) The complete retention registers for other positions that could 
affect the composition of the employee's competitive level, and/or the 
determination of the employee's assignment rights (e.g., registers to 
which the released employee may have potential assignment rights under 
Sec.  351.701(b) and (c)).
    (d) An employee who has not received a specific reduction in force 
notice has no right to review the agency's retention registers and 
related records.
    (e) The agency is responsible for ensuring that each employee's 
access to retention records is consistent with both the Freedom of 
Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).
    (f) The agency must preserve all registers and records relating to a 
reduction in force for at least 1 year after the date it issues a 
specific reduction in force notice.

[64 FR 16800, Apr. 7, 1999]



Sec.  351.506  Effective date of retention standing.

    Except for applying the performance factor as provided in Sec.  
351.504:
    (a) The retention standing of each employee released from a 
competitive level in the order prescribed in Sec.  351.601 is determined 
as of the date the employee is so released.
    (b) The retention standing of each employee retained in a 
competitive level as an exception under Sec.  351.606(b), Sec.  351.607, 
or Sec.  351.608, is determined as of the date the employee would have 
been released had the exception not been used. The retention standing of 
each employee retained under any of these

[[Page 254]]

provisions remains fixed until completion of the reduction in force 
action which resulted in the temporary retention.
    (c) When an agency discovers an error in the determination of an 
employee's retention standing, it shall correct the error and adjust any 
erroneous reduction-in-force action to accord with the employee's proper 
retention standing as of the effective date established by this section.

[51 FR 319, Jan. 3, 1986, as amended at 60 FR 3063, Jan. 13, 1995; 62 FR 
10682, Mar. 10, 1997]



                Subpart F_Release From Competitive Level



Sec.  351.601  Order of release from competitive level.

    (a) Each agency shall select competing employees for release from a 
competitive level under this part in the inverse order of retention 
standing, beginning with the employee with the lowest retention standing 
on the retention register. An agency may not release a competing 
employee from a competitive level while retaining in that level an 
employee with lower retention standing except:
    (1) As required under Sec.  351.606 when an employee is retained 
under a mandatory exception or under Sec.  351.806 when an employee is 
entitled to a new written notice of reduction in force; or
    (2) As permitted under Sec.  351.607 when an employee is retained 
under a permissive continuing exception or under Sec.  351.608 when an 
employee is retained under a permissive temporary exception.
    (b) When employees in the same retention subgroup have identical 
service dates and are tied for release from a competitive level, the 
agency may select any tied employee for release.



Sec.  351.602  Prohibitions.

    An agency may not release a competing employee from a competitive 
level while retaining in that level an employee with:
    (a) A specifically limited temporary appointment;
    (b) A specifically limited temporary or term promotion;
    (c) A written decision under part 432 or 752 of this chapter of 
removal or demotion from the competitive level.

[51 FR 319, Jan. 3, 1986, as amended at 62 FR 62502, Nov. 24, 1997]



Sec.  351.603  Actions subsequent to release from competitive level.

    An employee reached for release from a competitive level shall be 
offered assignment to another position in accordance with subpart G of 
this part. If the employee accepts, the employee shall be assigned to 
the position offered. If the employee has no assignment right or does 
not accept an offer under subpart G, the employee shall be furloughed or 
separated.



Sec.  351.604  Use of furlough.

    (a) An agency may furlough a competing employee only when it intends 
within 1 year to recall the employee to duty in the position from which 
furloughed.
    (b) An agency may not separate a competing employee under this part 
while an employee with lower retention standing in the same competitive 
level is on furlough.
    (c) An agency may not furlough a competing employee for more than 1 
year.
    (d) When an agency recalls employees to duty in the competitive 
level from which furloughed, it shall recall them in the order of their 
retention standing, beginning with highest standing employee.



Sec.  351.605  Liquidation provisions.

    When an agency will abolish all positions in a competitive area 
within 180 days, it must release employees in group and subgroup order 
consistent with Sec.  351.601(a). At its discretion, the agency may 
release the employees in group order without regard to retention 
standing within a subgroup, except as provided in Sec.  351.606. When an 
agency releases an employee under this section, the notice to the 
employee must cite this authority and give the date the liquidation will 
be completed. An agency may also apply Sec. Sec.  351.607 and 351.608 in 
a liquidation.

[60 FR 2678, Jan. 11, 1995]

[[Page 255]]



Sec.  351.606  Mandatory exceptions.

    (a) Armed Forces restoration rights. When an agency applies Sec.  
351.601 or Sec.  351.605, it shall give retention priorities over other 
employees in the same subgroup to each group I or II employee entitled 
under 38 U.S.C. 2021 or 2024 to retention for, as applicable, 6 months 
or 1 year after restoration, as provided in part 353 of this chapter.
    (b) Use of annual leave to reach initial eligibility for retirement 
or continuance of health benefits. (1) An agency shall make a temporary 
exception under this section to retain an employee who is being 
involuntarily separated under this part, and who elects to use annual 
leave to remain on the agency's rolls after the effective date the 
employee would otherwise have been separated by reduction in force, in 
order to establish initial eligibility for immediate retirement under 5 
U.S.C. 8336, 8412, or 8414, and/or to establish initial eligibility 
under 5 U.S.C. 8905 to continue health benefits coverage into 
retirement.
    (2) An agency shall make a temporary exception under this section to 
retain an employee who is being involuntarily separated under authority 
of part 752 of this chapter because of the employee's decision to 
decline relocation (including transfer of function), and who elects to 
use annual leave to remain on the agency's rolls after the effective 
date the employee would otherwise have been separated by adverse action, 
in order to establish initial eligibility for immediate retirement under 
5 U.S.C. 8336, 8412, or 8414, and/or to establish initial eligibility 
under 5 U.S.C. 8905 to continue health benefits coverage into 
retirement.
    (3) An employee retained under paragraph (b) by this section must be 
covered by chapter 63 of title 5, United States Code.
    (4) An agency may not retain an employee under paragraph (b) of this 
section past the date that the employee first becomes eligible for 
immediate retirement, or for continuation of health benefits into 
retirement, except that an employee may be retained long enough to 
satisfy both retirement and health benefits requirements.
    (5) Except as permitted by 5 CFR 351.608(d), an agency may not 
approve an employee's use of any other type of leave after the employee 
has been retained under a temporary exception authorized by paragraph 
(b) of this section.
    (6) Annual leave for purposes of paragraph (b) of this section is 
described in Sec.  630.212 of this chapter.
    (c) Documentation. Each agency shall record on the retention 
register, for inspection by each employee, the reasons for any deviation 
from the order of release required by Sec.  351.601 or Sec.  351.605.

[62 FR 10682, Mar. 10, 1997]



Sec.  351.607  Permissive continuing exceptions.

    An agency may make exception to the order of release in Sec.  
351.601 and to the action provisions of Sec.  351.603 when needed to 
retain an employee on duties that cannot be taken over within 90 days 
and without undue interruption to the activity by an employee with 
higher retention standing. The agency shall notify in writing each 
higher-standing employee reached for release from the same competitive 
level of the reasons for the exception.



Sec.  351.608  Permissive temporary exceptions.

    (a) General. (1) In accordance with this section, an agency may make 
a temporary exception to the order of release in Sec.  351.601, and to 
the action provisions of Sec.  351.603, when needed to retain an 
employee after the effective date of a reduction in force. Except as 
otherwise provided in paragraphs (c) and (e) of this section, an agency 
may not make a temporary exception for more than 90 days.
    (2) After the effective date of a reduction in force action, an 
agency may not amend or cancel the reduction in force notice of an 
employee retained under a temporary exception so as to avoid completion 
of the reduction in force action. This does not preclude the employee 
from receiving or accepting a job offer in the same competitive area in 
accordance with a Reemployment Priority List established under part 330, 
subpart B, of this chapter, or under a Career Transition Assistance Plan 
established under part 330, subpart E, of this chapter, or equivalent 
programs.

[[Page 256]]

    (b) Undue interruption. An agency may make a temporary exception for 
not more than 90 days when needed to continue an activity without undue 
interruption.
    (c) Government obligation. An agency may make a temporary exception 
to satisfy a Government obligation to the retained employee without 
regard to the 90-day limit set forth under paragraph (a)(1) of this 
section.
    (d) Sick leave. An agency may make a temporary exception to retain 
on sick leave a lower standing employee covered by chapter 63 of title 
5, United States Code (or other applicable leave system for Federal 
employees), who is on approved sick leave on the effective date of the 
reduction in force, for a period not to exceed the date the employee's 
sick leave is exhausted. Use of sick leave for this purpose must be in 
accordance with the requirements in part 630, subpart D, of this chapter 
(or other applicable leave system for Federal employees). Except as 
authorized by Sec.  351.606(b), an agency may not approve an employee's 
use of any other type of leave after the employee has been retained 
under this paragraph (d).
    (e)(1) An agency may make a temporary exception to retain on accrued 
annual leave a lower standing employee who:
    (i) Is being involuntarily separated under this part;
    (ii) Is covered by a Federal leave system under authority other than 
chapter 63 of title 5, United States Code; and,
    (iii) Will attain first eligibility for an immediate retirement 
benefit under 5 U.S.C. 8336, 8412, or 8414 (or other authority), and/or 
establish eligibility under 5 U.S.C. 8905 (or other authority) to carry 
health benefits coverage into retirement during the period represented 
by the amount of the employee's accrued annual leave.
    (2) An agency may not approve an employee's use of any other type of 
leave after the employee has been retained under this paragraph (e).
    (3) This exception may not exceed the date the employee first 
becomes eligible for immediate retirement or for continuation of health 
benefits into retirement, except that an employee may be retained long 
enough to satisfy both retirement and health benefits requirements.
    (4) Accrued annual leave includes all accumulated, accrued, and 
restored annual leave, as applicable, in addition to annual leave earned 
and available to the employee after the effective date of the reduction 
in force. When approving a temporary exception under this provision, an 
agency may not advance annual leave or consider any annual leave that 
might be credited to an employee's account after the effective date of 
the reduction in force other than annual leave earned while in an annual 
leave status.
    (f) Other exceptions. An agency may make a temporary exception under 
this section to extend an employee's separation date beyond the 
effective date of the reduction in force when the temporary retention of 
a lower standing employee does not adversely affect the right of any 
higher standing employee who is released ahead of the lower standing 
employee. The agency may establish a maximum number of days, up to 90 
days, for which an exception may be approved.
    (g) Notice to employees. When an agency approves an exception for 
more than 30 days, it must:
    (1) Notify in writing each higher standing employee in the same 
competitive level reached for release of the reasons for the exception 
and the date the lower standing employee's retention will end; and
    (2) List opposite the employee's name on the retention register the 
reasons for the exception and the date the employee's retention will 
end.

[62 FR 10682, Mar. 10, 1997]



             Subpart G_Assignment Rights (Bump and Retreat)



Sec.  351.701  Assignment involving displacement.

    (a) General. When a group I or II competitive service employee with 
a current annual performance rating of record of minimally successful 
(Level 2) or equivalent, or higher, is released from a competitive 
level, an agency shall offer assignment, rather than furlough or 
separate, in accordance with

[[Page 257]]

paragraphs (b), (c), and (d) of this section to another competitive 
position which requires no reduction, or the lease possible reduction, 
in representative rate. The employee must be qualified for the offered 
position. The offered position shall be in the same competitive area, 
last at least 3 months, and have the same type of work schedule (e.g., 
full-time, part-time, intermittent, or seasonal) as the position from 
which the employee is released. Upon accepting an offer of assignment, 
or displacing another employee under this part, an employee retains the 
same status and tenure in the new position. The promotion potential of 
the offered position is not a consideration in determining an employee's 
right of assignment.
    (b) Lower subgroup--bumping. A released employee shall be assigned 
in accordance with paragraph (a) of this section and bump to a position 
that:
    (1) Is held by another employee in a lower tenure group or in a 
lower subgroup within the same tenure group; and
    (2) Is no more than three grades (or appropriate grade intervals or 
equivalent) below the position from which the employee was released.
    (c) Same subgroup-retreating. A released employee shall be assigned 
in accordance with para