[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
5
Parts 700 to 1199
Revised as of January 1, 2001
Administrative Personnel
Containing a codification of documents of general
applicability and future effect
As of January 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
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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........................ 553
Alphabetical List of Agencies Appearing in the CFR...... 571
Redesignation Table..................................... 581
List of CFR Sections Affected........................... 583
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 5 CFR 715.201
refers to title 5, part
715, section 201.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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CFR INDEXES AND TABULAR GUIDES
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2001.
[[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, 2001.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 700-1199 and part 1200-End.
[[Page x]]
[[Page 1]]
TITLE 5--ADMINISTRATIVE PERSONNEL
(This book contains parts 700 to 1199)
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Note: Title 5 of the United States Code was revised and enacted into
positive law by Pub. L. 89-554, Sept. 6, 1966. New citations for
obsolete references to sections of 5 U.S.C. appearing in this volume may
be found in a redesignation table under Title 5, Government Organization
and Employees, United States Code.
Part
chapter i--Office of Personnel Management (Continued)....... 715
[[Page 3]]
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (Continued)
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SUBCHAPTER B--CIVIL SERVICE REGULATIONS--CONTINUED
Part Page
715 Nondisciplinary separations, demotions, and
furloughs............................... 5
720 Affirmative Employment Programs............. 5
723 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Office of
Personnel Management.................... 16
731 Suitability................................. 22
732 National security positions................. 32
733 Political activity--Federal employees
residing in designated localities....... 34
734 Political activities of Federal employees... 39
735 Employee responsibilities and conduct....... 55
736 Personnel investigations.................... 56
752 Adverse actions............................. 58
754 [Reserved]
771 Agency administrative grievance system...... 69
772 Interim relief.............................. 69
792 Federal employees' health and counseling
programs................................ 70
831 Retirement.................................. 76
835 Debt collection............................. 173
837 Reemployment of annuitants.................. 175
838 Court orders affecting retirement benefits.. 188
841 Federal Employees Retirement System--General
Administration.......................... 240
842 Federal Employees Retirement System--basic
annuity................................. 262
843 Federal Employees Retirement System--death
benefits and employee refunds........... 304
844 Federal Employees' Retirement System--
Disability Retirement................... 319
845 Federal Employees Retirement System--debt
collection.............................. 328
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846 Federal Employees Retirement System--
elections of coverage................... 339
847 Elections of retirement coverage by current
and former employees of nonappropriated
fund instrumentalities.................. 351
870 Federal employees' group life insurance
program................................. 365
880 Retirement and insurance benefits during
periods of unexplained absence.......... 397
890 Federal Employees Health Benefits Program... 401
891 Retired Federal employees health benefits... 464
892 Federal flexible benefits plan: pre-tax
payment of health benefits premiums..... 473
900 Intergovernmental Personnel Act programs.... 477
911 Procedures for States and localities to
request indemnification................. 495
930 Programs for specific positions and
examinations (miscellaneous)............ 497
950 Solicitation of Federal civilian and
uniformed service personnel for
contributions to private voluntary
organizations........................... 510
960 Federal Executive Boards.................... 529
970 Governmentwide debarment and suspension
(nonprocurement)........................ 532
990 General and miscellaneous................... 546
SUBCHAPTER C--REGULATIONS GOVERNING EMPLOYEES OF THE OFFICE OF PERSONNEL
MANAGEMENT
1001 Employee responsibilities and conduct....... 1001
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SUBCHAPTER B--CIVIL SERVICE REGULATIONS
PART 715--NONDISCIPLINARY SEPARATIONS, DEMOTIONS, AND FURLOUGHS--Table of Contents
Subpart A [Reserved]
Subpart B Voluntary Separations
Sec.
715.201 Applicability.
715.202 Resignation.
Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306.
Subpart A [Reserved]
Subpart B Voluntary Separations
Sec. 715.201 Applicability.
This subpart applies to separation actions requested by employees in
the executive departments and independent establishments of the Federal
Government, including Government-owned or controlled corporations, and
in those portions of the legislative and judicial branches of the
Federal Government and the government of the District of Columbia having
positions in the competitive service.
[33 FR 12482, Sept. 4, 1968]
Sec. 715.202 Resignation.
(a) General. An employee is free to resign at any time, to set the
effective date of his resignation, and to have his reasons for resigning
entered in his official records.
(b) Withdrawal of resignation. An agency may permit an employee to
withdraw his resignation at any time before it has become effective. An
agency may decline a request to withdraw a resignation before its
effective date only when the agency has a valid reason and explains that
reason to the employee. A valid reason includes, but is not limited to,
administrative disruption or the hiring or commitment to hire a
replacement. Avoidance of adverse action proceedings is not a valid
reason.
[33 FR 12482, Sept. 4, 1968, as amended at 36 FR 9765, May 28, 1971; 38
FR 18446, July 11, 1973; 38 FR 26601, Sept. 24, 1973]
PART 720--AFFIRMATIVE EMPLOYMENT PROGRAMS--Table of Contents
Subpart A--Principal Statutory Requirements
Sec.
720.101 Federal Equal Opportunity Recruitment Program.
Subpart B--Federal Equal Opportunity Recruitment Program
720.201 Regulatory requirements.
720.202 Definitions.
720.203 Responsibilities of the Office of Personnel Management.
720.204 Agency programs.
720.205 Agency plans.
720.206 Selection guidelines.
720.207 Reports.
Subpart C--Disabled Veterans Affirmative Action Program
720.301 Purpose and authority.
720.302 Definition.
720.303 Agency programs.
720.304 Agency plans.
720.305 Agency accomplishment reports.
720.306 Responsibilities of the Office of Personnel Management.
720.307 Interagency report clearance.
Subparts D-I [Reserved]
Subpart J--Equal Opportunity Without Regard to Politics or Marital
Status
720.901 Equal opportunity without regard to politics or marital status.
Appendix to Part 720--Guidelines for the Development of a Federal
Recruitment Program to Implement 5 U.S.C. Section 7201, As
Amended
Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e, unless otherwise noted.
Source: 44 FR 22031, Apr. 13, 1979, unless otherwise noted.
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Subpart A--Principal Statutory Requirements
Sec. 720.101 Federal Equal Opportunity Recruitment Program.
This section incorporates the statutory requirements for
establishing and conducting an equal opportunity recruitment program
consistent with law within the Federal civil service. The policy in 5
U.S.C. 7201(b) reads as follows: ``It is the policy of the United States
to insure equal employment opportunities for employees without
discrimination because of race, color, religion, sex, or national
origin. The President shall use his existing authority to carry out this
policy.'' 5 U.S.C. 7201(c) requires under regulations prescribed by the
Office of Personnel Management:
``(1) That each Executive agency conduct a continuing program for
the recruitment of members of minorities for positions in the agency to
carry out the [anti-discrimination] policy set forth in subsection (b)
in a manner designed to eliminate underrepresentation of minorities in
the various categories of civil service employment within the Federal
service, with special efforts directed at recruiting in minority
communities, in educational institutions, and from other sources from
which minorities can be recruited; and
``(2) That the Office conduct a continuing program of--
``(A) Assistance to agencies in carrying out programs under
paragraph (1) of this subsection; and
``(B) Evaluation and oversight of such recruitment programs to
determine their effectiveness in eliminating such minority
underrepresentation.''
This section and all implementing guidance shall be interpreted
consistent with title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000c et seq.
[44 FR 22031, Apr. 13, 1979, as amended at 48 FR 193, Jan. 4, 1983]
Subpart B--Federal Equal Opportunity Recruitment Program
Sec. 720.201 Regulatory requirements.
This subpart contains the regulations of the Office of Personnel
Management which implement the above provisions of title 5, United
States Code, and are prescribed by the Office under authority of 5
U.S.C. 7201.
Sec. 720.202 Definitions.
For the purposes of this subpart:
(a) Underrepresentation means a situation in which the number of
women or members of a minority group within a category of civil service
employment constitutes a lower percentage of the total number of
employees within the employment category than the percentage women or
the minority constitutes within the civilian labor force of the United
States, in accordance with Sec. 720.205 (c) and (d).
(b) Category of civil service employment means such groupings of
Federal jobs by grades and/or occupations as the Office of Personnel
Management deems appropriate within the General Schedule and the
prevailing wage systems.
(c) Minority refers only to those groups classified as ``minority''
for the purpose of data collection by the Office of Personnel Management
and the Equal Employment Opportunity Commission in furtherance of
Federal equal employment opportunity policies. The term, ``women,''
includes nonminority as well as minority women.
(d) Civilian labor force (CLF) includes all persons 16 years of age
and over, except those in the armed forces, who are employed or who are
unemployed and seeking work. CLF data are defined by the Bureau of the
Census and the Bureau of Labor Statistics and are reported in the most
recent decennial or mid-decade census, or current population survey,
under title 13 of the United States Code or any other reliable
statistical study.
(e) Recruitment means the total process by which the Federal
Government and the Federal agencies locate, identify and assist in the
employment of qualified applicants from underrepresented groups for job
openings in categories of employment where underrepresentation has been
determined. It includes both innovative internal and external
recruitment actions. It is also intended to cover processes designed to
prepare qualifiable applicants (those who have the potential but do not
presently meet valid qualification requirements) for such job openings
through
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programs of training, work experience or both.
(f) Applicant pool means all types of listings from which selections
may be made, including (but not limited to) promotion lists, competitive
certificates and inventories of eligibles, applicant supply files, and
lists of eligibles for certain noncompetitive appointments.
Sec. 720.203 Responsibilities of the Office of Personnel Management.
(a) The Office of Personnel Management will provide appropriate data
to assist Federal agencies in making determinations of
underrepresentation. The process for making such determinations is
described in sections II and III (c) of the ``Guidelines for the
Development of a Federal Recruitment Program to Implement 5 U.S.C. 7201,
as amended'' (See appendix to this part). The Office will develop and
publish more specific criteria for statistical measurements to be used
by individual agencies, and will develop further guidance on--
(1) Agency employment statistics and civilian labor force statistics
to be used in making determinations of underrepresentation, on a
national, regional or other geographic basis as appropriate;
(2) Groupings of grades and/or other occupational categories to be
used in implementing agency programs;
(3) Occupational categories and job series for which expanded
external recruitment efforts are most appropriate, and those for which
expanded and innovative internal recruitment is appropriate; and
(4) Other factors which may be considered by the agency, in
consultation with Office of Personnel Management, to make determinations
of underrepresentation and to develop recruitment programs focused on
specific occupational categories.
(b) The Office will assist agencies in carrying out their programs
by--
(1) Identifying major recruitment sources of women and members of
minority groups and providing guidance on internal and external
recruitment activities directed toward the solution of specific
underrepresentation problem;
(2) Supplementing agency recruitment efforts, utilizing existing
networks for dissemination of job information, and involving the
participation of minority group and women's organizations where
practicable;
(3) Examining existing Federal personnel procedures to identify
those which (i) may serve as impediments to innovative internal and
external recruitment and (ii) are within the administrative control of
the Office or the Federal agencies;
(4) Determining whether applicant pools used in filling jobs in a
category of employment where underrepresentation exists include
sufficient candidates from any underrepresentated groups, except where
the agency controls such pools (see Sec. 720.204(c));
(5) Providing such other support, as the Office deems appropriate.
(c) The Office will monitor and, in conjunction with the personnel
management evaluation program of the Office, evaluate agency programs to
determine their effectiveness in eliminating underrrepresentation.
(d) The Office will work with agencies to develop effective
mechanisms for providing information on Federal job opportunities
targeted to reach candidates from underrepresented groups.
(e) The Office will conduct a continuing program of guidance and
instruction to supplement these regulations.
(f) The Office will coordinate further activities to implement equal
opportunity recruitment programs under this subpart with the Equal
Employment Opportunity Commission consistent with law, Executive Order
12067, and Reorganization Plan No. 1 of 1978.
Sec. 720.204 Agency programs.
(a) Each Executive agency having positions in the pay systems
covered by this program must conduct a continuing program for the
recruitment of minorities and women for positions in the agency and its
components to carry out the policy of the United States to insure equal
employment opportunities without discrimination because of race, color,
religion, sex or national origin. The head of each agency must
specifically assign responsibility for program
[[Page 8]]
implementation to an appropriate agency official. All agency officials
who have responsibility for the program will be evaluated on their
effectiveness in carrying it out as part of their periodic performance
appraisals.
(b) Programs established under this subpart must be designed to
cover recruitment for all positions in pay plans covered by this program
including part-time and temporary positions.
(c) Where an agency or the Office of Personnel Management has
determined that an applicant pool does not adequately provide for
consideration of candidates from any underrepresented group, the agency
or agency component must take one or more of the following actions:
(1) Expand or otherwise redirect their recruitment activities in
ways designed to increase the number of candidates from underrepresented
groups in that applicant pool;
(2) Use selection methods involving other applicant pools which
include sufficient numbers of members of underrepresented groups;
(3) Notify the office responsible for administering that applicant
pool, and request its reopening of application receipt in support of
expanded recruitment activities or certifying from equivalent registers
existing in other geographic areas; and/or
(4) Take such other action consistent with law which will contribute
to the elimination of underrepresentation in the category of employment
involved.
(d) Agencies must notify and seek advice and assistance from the
Office of Personnel Management in cases where their equal opportunity
recruitment programs are not making measurable progress in eliminating
identified underrepresentation in the agency work force.
Sec. 720.205 Agency plans.
(a) Each agency must have an up-to-date equal opportunity
recruitment program plan covering recruitment for positions at various
organizational levels and geographic locations within the agency. Such
plans must be available for review in appropriate offices of the agency
and must be submitted to the Office of Personnel Management on request.
In accordance with agreement reached between the Office and the Equal
Employment Opportunity Commission, such plans must be incorporated in
the agency's equal employment opportunity plans required under section
717 of the Civil Rights Act of 1964, as amended, pursuant to regulations
and instructions of the Commission, provided they are separable parts of
those plans for purposes of review by and submission to the Office of
Personnel Management. Agency organizational and geographical components
which are required to develop and submit Equal Employment Opportunity
plans, under instructions issued by the Equal Employment Opportunity
Commission, must also have up-to-date special recruitment program plans.
On a determination by the Office of Personnel Management, in
consultation with EEOC, that additional component plans are needed to
implement an agency's program effectively, the Office will instruct the
agency to develop additional plans. Agencies must comply with such
instructions.
(b) Agency plans must include annual specific determinations of
underrepresentation for each group and must be accompanied by
quantifiable indices by which progress toward eliminating
underrepresentation can be measured.
(c) Where an agency or agency component is located in a geographical
area where the percentage of underrepresented groups in the area
civilian labor force is higher than their percentage in the national
labor force, the agency or component must base its plans on the higher
level of representation in the relevant civilian labor force.
(d) Where an agency or agency component is located in a geographical
area where participation of a particular underrepresented group is
significantly lower than its participation in the national labor force,
the agency or component may, in consultation with the Office of
Personnel Management, use the lower percentage in determining
underrepresentation. An agency may not use a figure lower than the
relevant regional or nationwide labor force percentage where recruitment
on a regional or nationwide basis is feasible for particular categories
of employment. Factors such as size of
[[Page 9]]
the agency or unit, nature of jobs and their wage or pay scale may be
considered in focusing recruitment for various job categories.
(e) In addition to the underrepresentation determinations described
in paragraphs (b), (c) and (d) of this section, agency plans must, at a
minimum, include:
(1) An assessment of grades or job categories and numbers of jobs in
such categories expected to be filled in the current year, and on a
longer term basis (based on anticipated turnover, expansion, hiring
limits and other relevant factors) identification of those occupational
categories and positions suitable for external recruitment, and
description of special targeted recruitment programs for such jobs and
positions;
(2) A similar assessment for job categories and positions likely to
be filled by recruitment from within the agency and/or the Federal civil
service system and a description of recruitment programs developed to
increase minority and female candidates from internal sources for such
positions;
(3) A further assessment of internal availability of candidates from
underrepresentated groups for higher job progressions by identifying
job-related skills, knowledges and abilities which may be obtained at
lower levels in the same or similar occupational series, or through
other experience;
(4) A description of methods the agency intends to use to locate and
develop minority and female candidates for each category of
underrepresentation and an indication of how such methods differ from
and expand upon the recruitment activities of the agency prior to
establishment of the special recruitment program or the last revision to
the agency's plans;
(5) A description of specific, special efforts planned by the agency
(or agency component) to recruit in communities, educational
institutions, and other likely sources of qualified minority and female
candidates;
(6) A description of efforts which will be undertaken by the agency
to identify jobs which can be redesigned so as to improve opportunities
for minorities and women, including jobs requiring bilingual or
bicultural capabilities or not requiring English fluency.
(7) A list of priorities for special recruitment program activities
based on agency identification of:
(i) Immediate and longer range job openings for each occupational/
grade-level grouping for which underrepresentation has been determined;
(ii) Hiring authorities which may be used to fill such jobs;
(iii) The possible impact of its actions on underrepresentation.
(8) Identification of training and job development programs the
agency will use to provide skills, knowledge and abilities to qualify
increased numbers of minorities and women for occupational series and
grade levels where they are significantly underrepresented.
(9) Identification of problems for which the assistance of the
Office of Personnel Management is needed and will be requested.
(f) Equal opportunity recruitment program plans must be consistent
with agency Upward Mobility program plans and should be developed with
full consideration of the agency's overall recruiting and staffing
planning objectives.
(g) All plans required under this subpart must be developed not
later than October 1, 1979.
[44 FR 22031, Apr. 13, 1979, as amended at 44 FR 33046, June 8, 1979]
Sec. 720.206 Selection guidelines.
This subpart sets forth requirements for a recruitment program, not
a selection program. Nevertheless, agencies are advised that all
selection processes including job qualifications, personnel procedures
and criteria must be consistent with the Uniform Guidelines on Employee
Selection Procedures (43 FR 38290; August 25, 1978).
Sec. 720.207 Reports.
(a) Not later than November 1 of each year, agencies must submit an
annual report on their equal opportunity recruitment program to the
Office of Personnel Management, in a form prescribed by the Office. The
Office may require submission of any additional
[[Page 10]]
reports it considers necessary in carrying out its responsibilities
under this subpart.
(b) The Office will report to Congress on the implementation and
operation of the program on a Governmentwide basis not later than
January 31 of each year, as required by law. Such reports will include
assessments of agencies progress, or lack of progress, in meeting the
objectives of the program.
Subpart C--Disabled Veterans Affirmative Action Program
Authority: 5 U.S.C. 7201; 42 U.S.C. 2000e; 38 U.S.C. 101(2),
2011(3), 2014; 5 U.S.C. 3112; 29 U.S.C. 791(b).
Source: 48 FR 193, Jan. 4, 1983, unless otherwise noted.
Sec. 720.301 Purpose and authority.
This subpart sets forth requirements for agency disabled veteran
affirmative action programs (DVAAPs) designed to promote Federal
employment and advancement opportunities for qualified disabled
veterans. The regulations in this subpart are prescribed pursuant to
responsibilities assigned to the Office of Personnel Management (OPM)
under section 403 of the Vietnam Era Veterans Readjustment Assistance
Act of 1974, as amended (38 U.S.C. 2014), and section 307 of the Civil
Service Reform Act of 1978 (5 U.S.C. 3112).
Sec. 720.302 Definition.
As used in this subpart, the terms veteran and disabled veteran have
the meanings given to these terms in title 38 of the United States Code.
Sec. 720.303 Agency programs.
(a) Continuing Programs. Each Department, agency, and
instrumentality in the executive branch, including the U.S. Postal
Service and the Postal Rate Commission, shall conduct a continuing
affirmative program for the recruitment, hiring, placement, and
advancement of disabled veterans.
(b) Program Responsibility. The head of each agency shall assign
overall program responsibility to an appropriate agency official. The
official so designated shall be at a high enough level to ensure
effective program administration and the devotion of adequate resources
to the program.
(c) Problem Analysis.
(1) Annually, OPM will provide appropriate data on the employment of
disabled veterans to each agency participating in the Central Personnel
Data File (CPDF). These data will be taken from CPDF. For DVAAP
purposes, CPDF data are considered to be the offical record of the
status of disabled veteran employment within each participating agency.
Each participating agency is responsible for assuring that such records
are timely, accurate, and complete.
(2) CPDF data must be analyzed by participating agencies to identify
problem areas and deficiencies in the employment and advancement of
disabled veterans. (OPM will establish with each agency not
participating in CPDF, the nature and extent of data to be used in
identifying problems and deficiencies.) Based on this analysis, agencies
shall develop methods to improve the recruitment, hiring, placement, and
advancement of disabled veterans, or revise or redirect existing
methods, as necessary. These methods must then be translated into action
items.
Sec. 720.304 Agency plan.
(a) Plan Development. As part of the affirmative action plan it
prepares pursuant to section 501(b) of the Rehabilitation Act of 1973
(29 U.S.C. 791 (b)) (``Section 501(b) Plan''), each Department, agency,
or instrumentality in the executive branch must have an up-to-date
affirmative action plan for the employment and advancement of disabled
veterans.
(1) Each agency must review its plan on an annual basis, together
with its accomplishments for the previous fiscal year, updated
employment data, and any changes in agency mission or structure, and
update the plan as necessary. Agency operating components and field
installations required to develop separate plans under paragraph (b) of
this section, below, must perform the same type of annual review and
update of their plans.
(2) Plans shall cover a time period of not less than one year and
may cover a longer period if concurrent with the
[[Page 11]]
agency's Section 501(b) Plan. Each plan must specify the period of time
it covers.
(3) Initial plans for fiscal year 1983 required under this subpart
must be developed by January 30, 1983 and must be in effect on that day.
(b) Plan Coverage.
(1) Each agency must have an agencywide plan covering all of its
operating components and field installations. Agencywide plans shall
include instructions assigning specific responsibilities on affirmative
actions to be taken by the agency's various operating components and
field installations to promote the employment and advancement of
disabled veterans. OPM must be informed when headquarters offices
require plans at the field or installation level.
(2) Agency operating components and field installations must have a
copy of the plan covering them, and must implement their
responsibilities under it. OPM may require operating components and
field installations to develop separate plans in accordance with program
guidance and/or instructions.
(c) Plan Submission. Affirmative action plans developed under this
section shall be submitted to OPM upon request. The Office of Personnel
Management will review a selection of agency plans each fiscal year.
(d) Plan Certification. Each agency must certify to OPM by December
1 of each year that it has an up-to-date plan as required by this
section. This certification must indicate the date the agency's most
recent plan was effective or was last amended.
(e) Plan Content. Disabled veteran affirmative action plans shall,
at a minimum, contain:
(1) A statement of the agency's policy with regard to the employment
and advancement of disabled veterans, especially those who are 30
percent or more disabled.
(2) The name and title of the official assigned overall
responsibility for development and implementation of the action plan.
(3) An assessment of the current status of disabled veteran
employment within the agency, with emphasis on those veterans who are 30
percent or more disabled.
(4) A description of recruiting methods which will be used to seek
out disabled veteran applicants, including special steps to be taken to
recruit veterans who are 30 percent or more disabled.
(5) A description of how the agency will provide or improve internal
advancement opportunities for disabled veterans.
(6) A description of how the agency will inform its operating
components and field installations, on a regular basis, of their
responsibilities for employing and advancing disabled veterans.
(7) A description of how the agency will monitor, review, and
evaluate its planned efforts, including implementation at operating
component and field installation levels during the period covered by the
plan.
Sec. 720.305 Agency accomplishment reports.
(a) Not later than December 1 of each year, agencies must submit an
annual accomplishment report on their disabled veterans affirmative
action program to the Office of Personnel Management, covering the
previous fiscal year.
(b) Agency annual accomplishment reports must describe:
(1) Methods used to recruit and employ disabled veterans, especially
those who are 30 percent or more disabled.
(2) Methods used to provide or improve internal advancement
opportunities for disabled veterans.
(3) A description of how the activities of major operating
components and field installations were monitored, reviewed, and
evaluated.
(4) An explanation of the agency's progress in implementing its
affirmative action plan during the fiscal year. Where progress has not
been shown, the report will cite reasons for the lack of progress, along
with specific plans for overcoming cited obstacles to progress.
Sec. 720.306 Responsibilities of The Office of Personnel Management.
(a) Program Review. OPM will monitor agency program implementation
through review of agency plans, direct agency contact, review of
employment
[[Page 12]]
data, and through other appropriate means. As it deems appropriate, OPM
will conduct onsite evaluations of program effectiveness, both at agency
headquarters and at field installations or operating components.
(b) Technical Assistance. The Office of Personnel Management will
provide technical assistance, guidance, instructions, data, and other
information as appropriate to supplement and support agency programs for
disabled veterans, through the Federal Personnel Manual (FPM).
(c) Semiannual Reports. As provided by 38 U.S.C. 2014(d), OPM will,
on at least a semiannual basis, publish reports on Government-wide
progress in implementing affirmative action programs for disabled
veterans.
(d) Report to Congress. As required by 38 U.S.C. 2014(e), OPM will
report to Congress each year on the implementation and progress of the
program. These reports will include specific assessments of agency
progress or lack of progress in meeting the objectives of the program.
Sec. 720.307 Interagency report clearance.
The reports contained in this regulation have been cleared in
accordance with FPMR 101-11.11 and assigned interagency report control
number 0305-OPM-AN.
Subparts D-I [Reserved]
Subpart J--Equal Opportunity Without Regard to Politics or Marital
Status
Sec. 720.901 Equal opportunity without regard to politics or marital status.
(a) In appointments and position changes. In determining the merit
and fitness of a person for competitive appointment or appointment by
noncompetitive action to a position in the competitive service, an
appointing officer shall not discriminate on the basis of the person's
political affiliations, except when required by statute, or on the basis
of marital status
(b) In adverse actions and termination of probationers. An agency
may not take an adverse action against an employee covered by part 752
of this chapter, not effect the termination of a probationer under part
315 of this chapter, (1) for political reasons, except when required by
statute, or (2) because of marital status.
(5 U.S.C. 2301, 2302, 7202, 7203, 7204)
[44 FR 48149, Aug. 17, 1979]
Appendix to Part 720--Guidelines for the Development of a Federal
Recruitment Program to Implement 5 U.S.C. Section 7201, as Amended \1\
---------------------------------------------------------------------------
\1\ This section originally was section 701(b) (2nd Proviso) of the
Civil Rights Act of 1964 (Pub. L. 88-352, July 2, 1964), codified as 5
U.S.C. 7151. Section 7151 was further amended by section 310 of the
Civil Service Reform Act of 1978. This Act also redesignated section
7151 as section 7201, effective January 11, 1979. (Sec. 703(a)(1) of the
Act.)
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I. Background Information. A. In 1964 the Congress adopted a basic
anti-discrimination policy for Federal employment, stating:
It is the policy of the United States to insure equal employment
opportunities for employees without discrimination because of race,
color, religion, sex or national origin. [5 U.S.C. 7151]\2\
---------------------------------------------------------------------------
\2 \Ibid.
---------------------------------------------------------------------------
In 1978, Congress reaffirmed and amended this policy as part of the
Civil Service Reform Act of 1978 [Sec. 310 of Pub. L. 95-454], requiring
immediate development of a recruitment program designed to eliminate
underrepresentation of minority groups in specific Federal job
categories. Section 310 directs the Equal Employment Opportunity
Commission:
1. To establish Guidelines proposed to be used for a program
designed to eliminate such underrepresentation;
2. To make, in consultation with OPM, initial determinations of
underrepresentation which are proposed to be used in this program; and
3. To transmit the determinations made under (2) above to the
Executive Agencies, the Office of Personnel Management and the Congress,
within 60 days of enactment.
The Office of Personnel Management (OPM)\3\ is directed by this
amendment:
---------------------------------------------------------------------------
\3\ This Office was created by Reorganization Plan No. 2, issued
pursuant to 5 U.S.C. 901 et seq. It will assume personnel management
functions of the present Office of Personnel Management on January 1,
1979.
---------------------------------------------------------------------------
1. To issue regulations to implement a program under EEOC Guidelines
within 180 days after enactment, which shall provide that
[[Page 13]]
Executive agencies conduct continuing recruitment programs to carry out
the anti-discrimination policy in a manner designed to eliminate
underrepresentation in identified categories of civil service;
2. To provide continuing assistance to Federal agencies in carrying
out such programs;
3. To conduct a continuing program of evaluation and oversight to
determine the effectiveness of such programs;
4. To establish occupational, professional and other groupings
within which appropriate recruitment will occur, based upon the
determinations of underrepresentation pursuant to these Guidelines; and
5. To report annually to the Congress on this program, not later
than January 31 of each year.
Congress further directed that the recruitment program must be
administered consistent with provisions of Reorganization Plan No. 1 of
1978.\4\
---------------------------------------------------------------------------
\4\ Conference Report on Civil Service Reform Act of 1978, No. 95-
1272, p. 145.
---------------------------------------------------------------------------
B. In framing these Guidelines and making its initial determinations
of underrepresentation, the Equal Employment Opportunity Commission
(Commission) is acting pursuant to its obligations and authority under 5
U.S.C. 7201, as amended; Section 717 of title VII of the Civil Rights
Act of 1964, as amended; Reorganization Plan No. 1 of 1978 (issued
pursuant to 5 U.S.C. 901 et seq.) and Executive Order 12067, issued
under this Plan (43 FR 28967, June 30, 1978). This Commission must
develop and/or ensure the development of uniform, coherent and effective
standards for administration and enforcement of all Federal anti-
discrimination and equal employment opportunity laws, policies and
programs, and to ensure the elimination of duplication and inconsistency
in such programs.
C. A review of the legislative history of Federal equal employment
opportunity policy provides further guidance on the scope and nature of
determinations and guidelines to be issued for this program.
The basic policy statement on Federal equal employment policy
enacted by the Congress in 1964 (5 U.S.C. 7151, redesignated as section
7201) gave the President authority for implementation. Executive Order
11246 (1966), expanded and superseded by Executive Order 11478 (1969)
with respect to Federal employment, required Federal agencies to develop
affirmative action programs designed to eliminate discrimination and
assure equal employment opportunity.
In 1972, Congress found that serious discrimination persisted in
Federal employment. It found that minorities and women were
significantly absent at higher levels in Federal employment, and
severely underrepresented in some Federal agencies and in some
geographic areas where they constituted significant proportions of the
population. After a detailed review of Federal employment practices and
statistics, the Congress concluded that:
The disproportionate distribution of minorities and women throughout
the Federal bureaucracy and their exclusion from higher level policy-
making and supervisory positions indicates the government's failure to
pursue its policy of equal employment opportunity.\5\
---------------------------------------------------------------------------
\5\ Legislative History of the Equal Employment Opportunity Act of
1972, p. 83. See pp. 82-86 and 421-425 for Congressional Findings.
---------------------------------------------------------------------------
Congress found that this exclusion resulted from overt and
``systemic'' discriminatory practices.
These findings, among others, led Congress to extend title VII
coverage to Federal employment in Section 717 of the Equal Employment
Opportunity Act of 1972.
The Civil Service Reform Act of 1978 clearly states, for the first
time, that ``it is the policy of the United States * * * to provide * *
* a Federal workforce reflective of the Nation's diversity * * *'' \6\
The Act establishes in law as the first merit principle that recruitment
should be designed to achieve a Federal workforce from ``all segments of
society.'' Among the personnel practices prohibited by the Act is
discrimination prohibited under title VII of the Civil Rights Act of
1964, as amended.\7\ Therefore, the Civil Service Reform Act and its
directive for a special recruitment program clearly unite requirements
for basic Federal personnel policy with requirements for Federal equal
employment policy.
---------------------------------------------------------------------------
\6\ Civil Service Reform Act of 1978, Section 3.
\7\ Section 101(a) of the Act, 5 U.S.C. 2301(b)(1) and
2302(b)(1)(A), as amended.
---------------------------------------------------------------------------
It is clear from the legislative history of Federal equal employment
policy that the legal standards of title VII must be applied to Federal
employment. Thus, guidelines for a recruitment program designed to
eliminate underrepresentation in Federal agency employment must be
developed consistent with the framework of affirmative action programs.
D. Guided by the review of the legislative history, and the
responsibilities and authorities cited in I(B) of this appendix, the
Commission is issuing these Guidelines to provide a framework for
development of recruitment program regulations by OPM. The Commission
may later provide more detailed guidance, through consultation with OPM,
designed to achieve an overall Federal equal employment program which is
consistent with, and which effectively implements title VII
requirements.
[[Page 14]]
II. Initial Determinations of Underrepresentation. A. Pursuant to
Section 7201, underrepresentation exists when the percentages of
minority and female Federal employees in specific grades are less than
their percentages in the civilian labor force. ``Minority'' refers only
to those groups classified as ``minority'' for the purpose of data
collection by the Commission and OPM in furtherance of Federal equal
employment opportunity policies. The civilian labor force includes all
persons 16 years of age and over except the armed forces, who are
employed or seeking employment. Such a determination of
underrepresentation is designated in these Guidelines as ``below the
Section 7201 level''.
B. The Commission has examined existing data on Federal employment
and the civilian labor force and has made initial determinations of
underrepresentation of groups by race, national origin and sex in
specific grades of the major Federal pay systems, under the legal
authorities cited in I(B), of this appendix.
C. The Table which follows shows the grades at which the percentage
of each group in the Federal workforce falls below its percentage in the
civilian labor force. The table covers four major Federal pay systems
which account for more than 95 percent of Federal employees, excluding
the Postal Service.\8\
---------------------------------------------------------------------------
\8\ The initial determinations are based on data for only those
agencies covered by the Civil Service Reform Act of 1978. The Commission
will make subsequent determinations on other agencies covered by title
VII, e.g. the U.S. Postal Service, TVA, Central Intelligence Agency,
Federal Reserve Board.
Civilian Labor Force and Federal Employment Grades at Which Minorities and Women Are Below the 7201 Level, by
Selected Pay Systems, and by Sex, Race, and National Origin--1977
----------------------------------------------------------------------------------------------------------------
Percent of Grades Below the 7201 Level
Civilian -----------------------------------------------------------------------
Sex/Race/National Origin Labor Gen Sched and Non-spvsry Leader Regular Spvsry Regular
Force Equivalent Regular Wage Wage Wage
----------------------------------------------------------------------------------------------------------------
Number of Grades............ .......... 18 15 15 19
----------------------------------------------------------------------------------------------------------------
Women....................... 41.0 9+ 2+ 2+ All
White....................... 34.0 9+ All All All
Black....................... 4.6 11+ 5+ 5+ 5+
Hispanic.................... 1.7 6+ All 2, 4+ All
AsAm/PacIs.................. .6 1, 10+ 2+ 2+ All
AmIn/AlNa................... .1 13+ 9+ 1, 5, 6, 9+ 4, 9, 11+
Minority Men................ 8.9 3+ 13+ 11, 14+ 13+
Black....................... 5.3 4, 6+ 12+ 11+ 11+
Hispanic.................... 2.8 All 14+ 1, 15 13-15, 17+
AsAm/PacIs.................. .7 1-8, 10, 16+ 9, 14+ 1, 3, 8, 9, 12+ 1, 3, 8, 9, 17+
AmIn/AlNa................... .2 None 14 1, 13+ 17+
----------------------------------------------------------------------------------------------------------------
Notes.--1. Comparable data for white men shown below are for reference.
White Men................... 50.1 1-8 1-4 1-5 1-3
2. + means ``and all grades above''.
3. Detail may not add to total because of rounding.
Sources: Civilian Labor Force information based on data from the Current Population Survey, Bureau of Labor
Statistics, Employment and Earnings, Vol. 25, No. 1, January 1978.
Information on grades below 7201 level based on Office of Personnel Management data from Equal Employment
Opportunity Statistics, November 20, 1977 (publication in process).
D. The initial determinations of underrepresentation were based upon
average 1977 labor force data from the Current Population Survey
published by the Bureau of Labor Statistics (Employment and Earnings,
January 1978), and 1977 Federal workforce statistics from Equal
Employment Opportunity Statistics (publication in process).
The labor force figures are published annually; the Federal
employment statistics semiannually. These measures, and any
modifications agreed upon by the Commission and OPM, will be updated
annually.
Regional and area Federal employment statistics are available from
the Office of Personnel Management. The latest reliable local labor
force data by race, national origin, and sex is from the 1970 Census.
The Commission and OPM will consult on appropriate labor force measures
to be used for local analyses.
E. These initial determinations are based upon a preliminary
analysis of the data, and may be further refined by the Commission, in
consultation with OPM, to include geographic and occupational
underrepresentation. It is further recognized that for the purpose of
developing regulations, the OPM, in consultation with the Commission,
will undertake more specific analyses of data use
[[Page 15]]
and applicability necessary to develop programs for the Federal agencies
pursuant to Section 7201(a)(2)(C). The OPM may establish criteria for
grouping agencies, for treating agency components separately and for
grouping grades and pay systems. In addition, OPM may study other
available data sources and use other techniques to assure statistically
significant findings of underrepresentation. Based upon these studies,
OPM may make recommendations to the Commission for future determinations
of underrepresentation.
III. Procedures for Developing Recruitment Programs. A. The program
developed and implemented by OPM under Section 7201 should be designed
to result in applicant pools with sufficient qualified members of
underrepresented groups. Where the supply of such groups initially
appears to be low for specific occupational, professional and other
groupings, the program should be designed so that recruitment efforts
stimulate interest of underrepresented groups in those occupations where
there are realistic projections of Federal employment opportunities.
B. In establishing groupings for determining underrepresentation,
OPM should utilize broad occupational categories to the extent possible.
C. The Commission recognizes that OPM's regulations should allow
flexibility in development and design of each Federal agency's
recruitment program. However, all statistical comparisons must be
computed in a manner consistent with the method utilized in II C of this
appendix.
The Commission recommends that each agency program meet several
minimum requirements. The program should be based on a determination of
underrepresentation in the agency's total workforce, in appropriate
geographic components; by grade; by broad occupational, professional and
other groupings in comparison to the national civilian labor force,
according to the criteria developed by OPM under these guidelines.
Where an agency or major component thereof (such as Headquarters and
Regional Offices) is located in a geographic area where the percentage
of underrepresented groups in the area civilian labor force is higher
than their percentage in the national labor force, the agency or
appropriate component should conduct its recruitment program for that
component on the basis of the higher level of representation in the
relevant civilian labor force.
Where an agency or major component thereof is located in a
geographic area where participation of a particular underrepresented
group in the area labor force is significantly lower than their
participation in the national labor force, such agency or component may,
in consultation with OPM, utilize the lower applicable civilian labor
force percentage in determining underrepresentation for the component.
In no event, however, may the agency utilize a figure lower than the
regional or nationwide Section 7201 level for positions where
recruitment on a regional or nationwide basis is feasible. Factors such
as size of the agency or unit, nature of jobs and their wage or pay
scale may be considered to set goals and to justify a recruitment
program focused on various job categories.
IV. Scope of Actions Covered by This Program. A. ``Recruitment''
under this program is defined as the total process by which the Federal
Government and the Federal agencies locate, identify and assist in the
employment of qualified or qualifiable applicants from underrepresented
groups for job openings in grades and in occupational categories where
underrepresentation has been determined. This process should include
innovative internal, as well as targeted external, recruitment actions.
B. Prior to developing regulations, the Office should review data on
personnel actions and other information, to identify those job
categories for which internal recruitment and external recruitment is
most appropriate and feasible, and to provide guidance to the Federal
agencies for targeting their recruitment programs, based on this
information. OPM should advise all agencies that all job qualifications,
personnel procedures and criteria must be consistent with the Uniform
Guidelines on Employee Selection Procedures (43 FR 38290 August 25,
1978) OPM should consider the following in providing guidance to
agencies:
1. External Recruitment Programs. a. Such programs should focus on
grade levels and/or job categories where underrepresentation has been
identified and where external recruitment realistically will result in
hiring opportunities.
Recruitment programs also should include a review of job functions
to determine those jobs that may be better performed by persons who are
bicultural and who have bilingual capabilities, and those jobs that can
be performed by persons not fluent in English.
b. Where eligibility lists are used for filling jobs, it is
recommended that the regulations require, an analysis by race, national
origin and sex, to determine whether the list contains sufficient
candidates from groups underrepresented in those jobs. OPM should
require that where the list does not have such representation, expanded
recruitment procedures be designed to assure that members of
underrepresented groups qualified to perform the job(s) are included in
the pool of applicants from which the selecting official makes the
selection. Such expanded recruitment procedures may include additional
external recruitment or various actions (such as described in 2. below)
to reach members of these groups within the Federal workforce
[[Page 16]]
who are qualified or qualifiable for these jobs.
2. Internal Recruitment Programs. a. Internal recruitment programs
should be designed by agencies to identify currently qualified or
qualifiable persons for job categories and series where
underrepresentation prevails, according to the national determinations
and the determinations made by each agency under these guidelines.
b. Further, OPM should work with Federal agencies to develop
effective mechanisms for providing information on Federal job
opportunities, targeted to reach Federal employees from underrepresented
groups in all agencies in order to broaden the applicant pool.
V. Consistency with Reorganization Plan No. 1 of 1978. A. The Office
shall develop regulations and implement this program in consultation
with the Commission and with other affected agencies in such manner that
their recruitment programs may be incorporated as a consistent and
effective element of the agencies' national and regional equal
employment opportunity plans. Each agency is required to implement such
plans under the direction and guidance of the Commission in accordance
with Section 717 of title VII of the Civil Rights Act of 1964, as
amended, and Executive Order 12067.
B. Procedures shall be established by OPM and the Commission to
assure appropriate consultation in development of the regulations.
C. Pursuant to Reorganization Plan No. 1 and to Executive Order
12067 issued thereunder, the Commission will establish procedures to
provide appropriate consultation and review of the program on a
continuing basis, to maximize its effectiveness and eliminate any
duplication, conflict or inconsistency in requirements for equal
opportunity programs in the Federal agencies.
D. In preparing its annual report to the Congress pursuant to the
Act, OPM should do so in consultation with the Commission.
[44 FR 22031, Apr. 13, 1979; 44 FR 76747, Dec. 28, 1979]
PART 723--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE OFFICE OF PERSONNEL MANAGEMENT--Table of Contents
Sec.
723.101 Purpose.
723.102 Application.
723.103 Definitions.
723.104-723.109 [Reserved]
723.110 Self-evaluation.
723.111 Notice.
723.112-723.129 [Reserved]
723.130 General prohibitions against discrimination.
723.131-723.139 [Reserved]
723.140 Employment.
723.141-723.148 [Reserved]
723.149 Program accessibility: Discrimination prohibited.
723.150 Program accessibility: Existing facilities.
723.151 Program accessibility: New construction and alterations.
723.152-723.159 [Reserved]
723.160 Communications.
723.161-723.169 [Reserved]
723.170 Compliance procedures.
Authority: 29 U.S.C. 794.
Source: 53 FR 25880 and 25885, July 8, 1988, unless otherwise noted.
Sec. 723.101 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 723.102 Application.
This regulation (Secs. 723.101-723.170) applies to all programs or
activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
Sec. 723.103 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
[[Page 17]]
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with
[[Page 18]]
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 723.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Secs. 723.104-723.109 [Reserved]
Sec. 723.110 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 723.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Secs. 723.112--723.129 [Reserved
Sec. 723.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
[[Page 19]]
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Secs. 723.131--723.139 [Reserved
Sec. 723.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. 723.141-723.148 [Reserved]
Sec. 723.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 723.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 723.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
[[Page 20]]
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 723.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 723.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to individuals with
handicaps. In cases where a physical alteration to an historic property
is not required because of Sec. 723.150(a) (2) or (3), alternative
methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
[[Page 21]]
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 723.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Secs. 723.152-723.159 [Reserved]
Sec. 723.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 723.160 would result
in such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
individuals with handicaps receive the benefits and services of the
program or activity.
Secs. 723.161-723.169 [Reserved]
Sec. 723.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
[[Page 22]]
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Assistant Director for Personnel and EEO shall be
responsible for coordinating implementation of this section. Complaints
may be sent to the Assistant Director for Personnel and EEO, Office of
Personnel Management, Room 1479, 1900 E St., NW., Washington, DC 20415.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 723.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25880 and 25885, July 8, 1988, as amended at 53 FR 25880, July 8,
1988]
PART 731--SUITABILITY--Table of Contents
Subpart A--Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
Subpart B--Suitability Determinations
731.201 Standard.
731.202 Criteria.
Subpart C--Suitability Rating Actions
731.301 Jurisdiction.
731.302 Risk designation and investigative requirements.
731.303 Actions by OPM and other agencies.
731.304 Debarment.
Subpart D--Suitability Actions
731.401 Scope.
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.
Subpart E--Appeal to the Merit Systems Protection Board
731.501 Appeal to the Merit Systems Protection Board.
Subpart F--Reemployment Eligibility
731.601 Reemployment eligibility of certain former Federal employees.
Subpart G--Savings Provision
731.701 Savings provision.
[[Page 23]]
Authority: 5 U.S.C. 1302, 3301, 3302, 7301, 7701; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306.;
E.O. 11491, 3 CFR, 1966-1970 Comp., p. 861.
Source: 56 FR 18650, Apr. 23, 1991, unless otherwise noted.
Subpart A--Scope
Sec. 731.101 Purpose.
The purpose of this part is to establish criteria and procedures for
making determinations of suitability for employment in positions in the
competitive service and for career appointments in the Senior Executive
Service (hereinafter in this part, ``competitive service'') pursuant to
5 U.S.C. 3301 and E.O. 10577. Section 3301 of title 5, United States
Code, directs consideration of ``age, health, character, knowledge, and
ability for the employment sought.'' E.O. 10577 directs OPM to examine
``suitability'' for competitive Federal employment. This part concerns
only determinations of ``suitability'' based on an individual's
character or conduct that may impact the efficiency of the service by
jeopardizing an agency's accomplishment of its duties or
responsibilities, or by interfering with or preventing effective service
in the position applied for or employed in, and determinations that
there is a statutory or regulatory bar to employment. Determinations
made under this part are distinct from determinations of eligibility for
assignment to, or retention in, sensitive national security positions
made under E.O. 10450 or similar authorities.
Sec. 731.102 Implementation.
(a) An investigation conducted for the purpose of determining
suitability under this part may not be used for any other purpose except
as provided in a Privacy Act system of records notice published by the
agency conducting the investigation.
(b) Policies, procedures, criteria, and guidance for the
implementation of this part shall be set forth in issuances of the
Federal Personnel Manual System or other appropriate instruments.
Agencies exercising authority under this part by delegation from OPM
shall conform to such policies, procedures, criteria, and guidance.
Sec. 731.103 Delegation to agencies.
(a) Direct Hires. The head of each agency is delegated authority for
adjudicating suitability under this part for applicants filing directly
with the agency outside a civil service register.
(b) OPM may in its discretion delegate to the heads of agencies
authority for adjudicating suitability in other cases involving
applicants and eligibles for, and appointees to, competitive service
positions in the agency.
(c) Paragraphs (a) and (b) of this section notwithstanding, OPM may
exercise its jurisdiction under this part in any case when deemed
necessary.
(d) Any applicant, eligible, or appointee who is found unsuitable by
any agency having delegated authority from OPM under this part for any
reason named in Sec. 731.202 may appeal to the Merit Systems Protection
Board under the Board's regulations.
Subpart B--Suitability Determinations
Sec. 731.201 Standard.
Subject to subpart C of this part, OPM may deny an applicant
examination, deny an eligible appointment, and direct an agency to
remove an appointee or employee when OPM determines the action will
promote the efficiency of the service.
Sec. 731.202 Criteria.
(a) General. In determining whether its action will promote the
efficiency of the service, OPM or an agency to which OPM has delegated
authority under Sec. 731.103 of this chapter, shall make its
determination on the basis of:
(1) Whether the conduct of the individual may reasonably be expected
to interfere with, or prevent, efficient service in the position applied
for or employed in; or
(2) Whether the conduct of the individual may reasonably be expected
to interfere with, or prevent, effective accomplishment by the employing
agency of its duties or responsibilities; or
(3) Whether a statutory or regulatory bar prevents the lawful
employment of the individual in the position in question.
[[Page 24]]
(b) Specific factors. When making a determination under paragraph
(a) of this section, any of the following reasons may be considered a
basis for finding an individual unsuitable:
(1) Misconduct or negligence in prior employment which would have a
bearing on efficient service in the position in question, or would
interfere with or prevent effective accomplishment by the employing
agency of its duties and responsibilities;
(2) Criminal or dishonest conduct related to the duties to be
assigned to the applicant or appointee, or to that person's service in
the position or the service of other employees;
(3) Intentional false statement or deception or fraud in examination
or appointment;
(4) Refusal to furnish testimony as required by Sec. 5.4 of this
chapter;
(5) Alcohol abuse of a nature and duration which suggests that the
applicant or appointee would be prevented from performing the duties of
the position in question, or would constitute a direct threat to the
property or safety of others;
(6) Illegal use of narcotics, drugs, or other controlled substances,
without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by force;
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. In making a determination under
paragraphs (a) and (b) of this section, OPM and agencies shall consider
the following additional factors to the extent that they deem these
factors pertinent to the individual case:
(1) The kind of position for which the person is applying or in
which the person is employed, including the degree of public trust or
risk in the position;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions;
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
Subpart C--Suitability Rating Actions
Sec. 731.301 Jurisdiction.
(a) Appointments subject to investigation. (1) In order to establish
an appointee's suitability for employment in the competitive service,
every appointment to a position in the competitive service is subject to
investigation by OPM, except:
(i) Promotion;
(ii) Demotion;
(iii) Reassignment;
(iv) Conversion from career-conditional to career tenure;
(v) Appointment, or conversion to an appointment, made by an agency
of an employee of that agency who has been serving continuously with
that agency for at least one year in one or more positions under an
appointment subject to investigation; and
(vi) Transfer, provided the one-year, subject-to-investigation
period applied to the previous appointment has expired.
(2) Appointments are subject to investigation to continue OPM's
jurisdiction to investigate the suitability of an applicant after
appointment and to authorize OPM to require removal when it finds the
appointee is unsuitable for Federal employment. The subject-to-
investigation condition may not be construed as requiring an employee to
serve a new probationary or trial period or as extending the
probationary or trial period of an employee.
(b) Duration of condition. The subject-to-investigation condition
expires automatically at the end of one year after the effective date of
appointment, except in a case involving intentional false statement or
deception or fraud in examination or appointment, or refusal to furnish
testimony.
Sec. 731.302 Risk designation and investigative requirements.
(a) Risk designation. Agency heads shall designate every competitive
service position within the agency at either a High, Moderate, or Low
risk level as determined by the position's potential
[[Page 25]]
for adverse impact to the efficiency of the service.
(b) Investigative requirements. Persons receiving an appointment
made subject to investigation shall undergo a background investigation,
the scope and coverage of which shall be determined by OPM in accordance
with the level of risk determined by the agency.
(c) Suitability reinvestigations. (1) Every incumbent of a
competitive service position:
(i) Designated High Risk under paragraph (a) of this section, or
(ii) That is a law enforcement or public safety position designated
Moderate Risk under paragraph (a) of this section, shall be subject to a
periodic reinvestigation of a scope established by OPM 5 years after
placement, and at least once each succeeding 5 years.
(2) Periodic reinvestigations required by paragraph (c)(1) of this
section may be adjudicated by the employing agency according to the
procedures in this part, if applicable.
Sec. 731.303 Actions by OPM and other agencies.
(a) For a period of one year after the effective date of an
appointment subject to investigation under Sec. 731.301, OPM may
instruct an agency to remove an appointee when it finds that the
appointee is unsuitable for any of the reasons cited in Sec. 731.202.
(b) Thereafter, OPM may require the removal of an employee on the
basis of either intentional false statement or deception or fraud in
examination or appointment; or refusal to furnish testimony; or
statutory or regulatory bar.
(c) An action to remove an appointee or employee taken pursuant to
an instruction by OPM is not an action under part 752, or Secs. 315.804
through 315.806 of part 315, of this chapter.
(d) When OPM instructs an agency to remove an appointee or employee
under this part it shall notify the agency and the appointee or employee
of its decision in writing.
(e) Before OPM, or any agency having delegated authority from OPM
under this part, shall take a final suitability action against an
applicant, eligible, appointee, or employee under this part, the person
against whom the action is proposed shall be given notice of the
proposed action (including the availability for review, upon request, of
the materials relied upon), an opportunity to answer, notice of the
final decision on the action, and notice of rights of appeal, if any,
all in accordance with this part.
Sec. 731.304 Debarment.
(a) When OPM finds a person unsuitable for any reason named in
Sec. 731.202, OPM, in its discretion, may deny that person examination
for and appointment to a competitive position for a period of not more
than 3 years from the date of determination of unsuitability.
(b) On expiration of a period of debarment, a person who has been
debarred may not be appointed to any position in the competitive service
until OPM has redetermined that person's suitability for appointment.
Subpart D--Suitability Actions
Sec. 731.401 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when OPM, acting under authority of this part, proposes to take or to
instruct an agency to take, a final suitability ineligibility action,
including removal, against an applicant or eligible for appointment in,
or an appointee or employee in, the competitive service. This subpart
does not apply to an action taken by an agency to which OPM has
delegated authority under Sec. 731.103.
(b) Definition. In this subpart, days means calendar days.
Sec. 731.402 Notice of proposed action.
(a) OPM shall notify the applicant, eligible, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action and
of the charges against the respondent. The notice shall state the
reasons, specifically and in detail, for the proposed action. The notice
shall also state that the respondent has the right to answer this notice
in writing. If the respondent is an employee the notice shall further
state that the employee may also make an oral answer, as specified in
Sec. 731.403(a). The notice shall further inform the respondent of the
time limits
[[Page 26]]
for answer as well as the address to which such answer should be made.
(b) OPM shall send a copy of this notice to the agency, if any, that
is involved. The notice shall be served upon the respondent by being
mailed to the respondent's last known residence or duty station no less
than 30 days prior to the effective date of the proposed adverse action.
If the respondent is employed in the competitive service on the date the
notice is served, the respondent shall be entitled to be retained in pay
status during the notice period.
Sec. 731.403 Answer.
(a) Respondent's answer. A respondent may answer the charges in
writing and furnish affidavits in support of the response. A respondent
who is an employee may answer orally. The respondent may be represented
by a representative of the respondent's choice, and such representative
shall be designated in writing to OPM. To be timely, a written answer
shall be made to OPM no more than 30 days after the date of the notice
of proposed action. In the event that an employee requests to make an
oral answer, OPM shall determine the time and place thereof. OPM shall
consider any answer that the respondent makes in reaching a decision.
(b) Agency's answer. In actions proposed by OPM under 5 CFR 5.3, the
agency may also answer the notice of proposed action. The time limit for
filing an answer is 30 days from the date of the notice. OPM shall
consider any answer that the agency makes in reaching a decision.
Sec. 731.404 Decision.
OPM shall notify the respondent and the agency of the decision. The
decision shall be in writing, be dated, and inform the respondent of the
reasons for the decision. Removal of appointees or employees will be
effective 30 days following the date of the decision. The respondent
shall also be informed that an adverse decision can be appealed in
accordance with subpart E of this part.
Subpart E--Appeal to the Merit Systems Protection Board
Sec. 731.501 Appeal to the Merit Systems Protection Board.
(a) An individual who has been found unsuitable for employment may
appeal the decision to the Merit Systems Protection Board (the Board).
An employee or appointee who appeals a removal directed by OPM shall
notify the employing agency of the appeal at the time it is filed.
(b) Appeal Procedures. The procedures for filing an appeal with the
Board are found at part 1201 of Title 5, Code of Federal Regulations.
(c) Pay Status Pending Appeal. When an employee or appointee whom
OPM has determined to be unsuitable files an appeal to the Board, the
employing agency may either suspend the employee or appointee on the day
following the date on which the removal was to have been effected
pending adjudication of the appeal, or retain the employee or appointee
in an active duty status for the period, in which event the agency shall
so notify the employee or appointee. Part 752 of this chapter does not
apply to the suspension.
[59 FR 47527, Sept. 16, 1994]
Subpart F--Reemployment Eligibility
Sec. 731.601 Reemployment eligibility of certain former Federal employees.
(a) Request for suitability determination. When an employee has been
removed by an agency on charges (other than security or loyalty) or has
resigned on learning the agency planned to prefer charges, or while
charges were pending, the former employee may request OPM to determine
his or her suitability for further employment in the competitive
service. OPM shall consider the request only if the former employee:
(1) Has completed any required probationary period;
(2) Has basic eligibility for reinstatement; and
(3) Includes a sworn statement with the request which sets forth
fully and
[[Page 27]]
in detail the facts surrounding the removal or resignation.
(b) Action by OPM. (1) OPM, after appropriate consideration,
including any investigation OPM deems necessary, shall inform the former
employee of his or her current suitability for employment in the
competitive service.
(2) If the former employee is found unsuitable and has had an
opportunity to comment on the reasons for this finding, or has furnished
comments to OPM, then OPM may cancel his or her reinstatement
eligibility if that eligibility was obtained through fraud. In addition,
OPM may prescribe a period of debarment from the competitive service not
to exceed 3 years from the date of determination of unsuitability.
Subpart G--Savings Provision
Sec. 731.701 Savings provision.
No provision of these regulations shall be applied in such a way as
to affect any administrative proceeding pending at the effective date of
such provision. An administrative proceeding is deemed to be pending
from the date of the ``notice of proposed action'' described in
Sec. 731.303 of this part.
Effective Date Note: At 65 FR 82243, Dec. 28, 2000, part 731 was
revised, effective Jan. 29, 2001. For the convenience of the user, the
revised text is set forth as follows:
PART 731--SUITABILITY
Subpart A--Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
731.104 Appointments subject to investigation.
731.105 Authority to take suitability actions.
731.106 Designation of public trust positions and investigative
requirements.
Subpart B--Suitability Determinations
731.201 Standard.
731.202 Criteria.
731.203 Actions by OPM and other agencies.
731.204 Debarment by OPM.
731.205 Debarment by agencies.
Subpart C--OPM Suitability Action Procedures
731.301 Scope.
731.302 Notice of proposed action.
731.303 Answer.
731.304 Decision.
Subpart D--Agency Suitability Action Procedures
731.401 Scope.
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.
Subpart E--Appeal to the Merit Systems Protection Board
731.501 Appeal to the Merit Systems Protection Board.
Subpart F--Savings Provision
731.601 Savings provision.
Authority: 5 U.S.C. 1302, 3301, 7301, 7701; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; E.O. 12731, 3 CFR, 1990 Comp., p. 306., 5 CFR, part
5.
Subpart A--Scope
Sec. 731.101 Purpose.
(a) The purpose of this part is to establish criteria and procedures
for making determinations of suitability for employment in positions in
the competitive service and for career appointment in the Senior
Executive Service (hereinafter in this part, ``competitive service'')
pursuant to 5 U.S.C. 3301 and Executive Order 10577 (3 CFR, 1954-1958
Comp., p. 218). Section 3301 of title 5, United States Code, directs
consideration of ``age, health, character, knowledge, and ability for
the employment sought.'' Executive Order 10577 directs OPM to examine
``suitability'' for competitive Federal employment. This part concerns
only determinations of ``suitability'' based on an individual's
character or conduct that may have an impact on the integrity or
efficiency of the service. Determinations made under this part are
distinct from determinations of eligibility for assignment to, or
retention in, sensitive national security positions made under Executive
Order 10450 (3 CFR, 1949-1953 Comp., p. 936), Executive Order 12968, or
similar authorities.
(b) Definitions. In this part:
Applicant. A person being considered for employment.
Appointee. A person who has entered on duty and is in the first year
of a subject to investigation appointment (as defined in Sec. 731.104).
Employee. A person who has completed the first year of a subject to
investigation appointment.
Material. A ``material'' statement is one that is capable of
influencing, or has a natural tendency to affect, an official decision.
Sec. 731.102 Implementation.
(a) An investigation conducted for the purpose of determining
suitability under this part may not be used for any other purpose except
as provided in a Privacy Act system
[[Page 28]]
of records notice published by the agency conducting the investigation.
(b) Under OMB Circular No. A-130 Revised, issued February 8, 1996,
the Director of OPM is to establish policies for Federal personnel
associated with the design, operation, or use of Federal automated
information systems. Agencies are to implement and maintain a program to
ensure that adequate protection is provided for all automated
information systems. Agency programs should be consistent with
government-wide policies and procedures issued by OPM. The Computer
Security Act of 1987 (Public Law 100-235) provides additional
requirements for Federal automated information systems.
(c) Policies, procedures, criteria, and guidance for the
implementation of this part shall be set forth in OPM issuances. OPM may
revoke an agency's delegation to adjudicate suitability under this part
if an agency fails to conform to OPM issuances.
Sec. 731.103 Delegation to agencies.
(a) OPM delegates to the heads of agencies limited authority for
adjudicating suitability in cases involving applicants for and
appointees to competitive service positions in the agency (including
limited, agency-specific debarment authority under Sec. 731.205). OPM
retains jurisdiction in all competitive service cases involving evidence
of material, intentional false statement or deception or fraud in
examination or appointment. Agencies must refer these cases to OPM for
adjudication, or contact OPM for prior approval if the agency wants to
take action under its own authority (5 CFR part 315 or 5 CFR part 752).
Also, this delegation does not include cases involving refusal to
furnish testimony as required by Sec. 5.4 of this chapter, title, or
passover requests involving preference eligibles who are 30 percent or
more compensably disabled which must be referred to OPM for
adjudication, as provided under Civil Service Reform Act of 1978, Public
Law 95-454, 92 Stat. 1111 et seq. (Codified as amended in scattered
sections of 5 U.S.C.)
(b) Any adjudication by an agency acting under delegated authority
from OPM which indicates that an extended general, across agency lines,
debarment by OPM under Sec. 731.204(a) may be an appropriate action
should be referred to OPM for debarment consideration if not favorably
adjudicated by the agency. Referral should be made prior to any proposed
action, but after sufficient resolution of the suitability issue(s)
through subject contact or investigation to determine if an extended
general debarment period appears warranted.
(c) Agencies exercising authority under this part by delegation from
OPM must show by policies and records that reasonable methods are used
to ensure adherence to regulations, standards, and quality control
procedures established by OPM.
(d) Before making any applicant suitability determination, the
agency should first ensure the applicant is eligible for the position,
among the best qualified, and/or within reach of selection. Because
suitability issues may not be disclosed until late in the application/
appointment process, only the best qualified should require a
suitability determination, with appropriate procedures followed and
appeal rights provided, if suitability issues would form the only basis
for elimination from further consideration.
(e) When an agency, exercising authority under this part by
delegation from OPM, makes an adjudicative decision under this part, or
changes a tentative favorable placement decision to an unfavorable
decision, based on an OPM report of investigation or upon an
investigation conducted pursuant to OPM-delegated authority, the agency
should:
(1) Ensure that the records used in making the decision are
accurate, relevant, timely, and complete to the extent reasonably
necessary to ensure fairness to the individual in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, the regulations in this part, and OPM
policy guidance have been observed;
(3) Consider all available information in reaching its final
decision, except information furnished by a non-corroborated
confidential source. Information furnished by a non-corroborated
confidential source can only be used for limited purposes, such as lead
information or in interrogatories to a subject if the identity of the
source is not compromised in any way; and
(4) Keep any record of the agency action as required by OPM in its
supplemental guidance.
(f) Paragraph (a) of this section notwithstanding, OPM may exercise
its jurisdiction under this part in any case when it, in its discretion,
deems necessary.
(g) Any applicant or appointee who is found unsuitable by any agency
acting under delegated authority from OPM under this part may appeal the
adverse suitability decision to the Merit Systems Protection Board under
the Board's regulations.
Sec. 731.104 Appointments subject to investigation.
(a) To establish a person's suitability for employment, appointments
to positions in the competitive service require the person to undergo an
investigation by OPM or by an agency with delegated authority from OPM
to conduct investigations. Certain appointments do not require
investigation. Except when required because of risk level changes, a
person in the competitive service who has undergone a suitability
investigation need not undergo another one simply because the person has
been:
[[Page 29]]
(1) Promoted;
(2) Demoted;
(3) Reassigned;
(4) Converted from career-conditional to career tenure;
(5) Appointed or converted to an appointment if the person has been
serving continuously with the agency for at least 1 year in one or more
positions under an appointment subject to investigation; and
(6) Transferred, provided the individual has served continuously for
at least 1 year in a position subject to investigation.
(b)(1) OPM or an agency with delegated suitability authority may
investigate and take a suitability action against an applicant,
appointee, or employee in accordance with Sec. 731.105. There is no time
limit on the authority of OPM or an agency with delegated suitability
authority to conduct an investigation of an applicant who has been
appointed to a position.
(2) An employee does not have to serve a new probationary or trial
period merely because his or her appointment is subject to investigation
under this section. An employee's probationary or trial period is not
extended because his or her appointment is subject to investigation
under this section.
(3) The subject to investigation condition also does not eliminate
the need to conduct investigations required under Sec. 731.106 for
public trust positions.
Sec. 731.105 Authority to take suitability actions.
(a) OPM may take a suitability action under this part against an
applicant or appointee based on any of the criteria of Sec. 731.202;
(b) An agency, exercising delegated authority, may take a
suitability action under this part against an applicant or appointee
based on the criteria of Sec. 731.202 subject to the agency limitations
prescribed in Sec. 731.103;
(c) OPM may take a suitability action under this part against an
employee only in cases involving material, intentional false statement
or deception or fraud in examination or appointment, or refusal to
furnish testimony as required by Sec. 5.4 of this title, or statutory or
regulatory bar. A statement may be a material statement even if an
agency does not rely upon it.
(d) An agency may not take a suitability action against an employee
under this part. Nothing in this part precludes, or is intended to
preclude, an agency from taking an adverse action against an employee
under the procedures and standards of part 752 of this title or
terminating a probationary employee under the procedures of part 315 of
this title.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. Agency heads shall designate every competitive
service position within the agency at a high, moderate, or low risk
level as determined by the position's potential for adverse impact to
the efficiency and integrity of the service. OPM will provide an example
of a risk designation system for agency use in supplemental guidance.
(b) Public Trust positions. Positions at the high or moderate risk
levels would normally be designated as ``Public Trust'' positions. Such
positions may involve policy making, major program responsibility,
public safety and health, law enforcement duties, fiduciary
responsibilities, or other duties demanding a significant degree of
public trust; and positions involving access to or operation or control
of financial records, with a significant risk for causing damage or
realizing personal gain.
(c) Investigative requirements. Persons receiving an appointment
made subject to investigation under this part must undergo a background
investigation. Minimum investigative requirements correlating to risk
levels will be established in supplemental guidance provided by OPM.
Investigations should be initiated before appointment or, at most,
within 14 calendar days of placement in the position.
(d) Suitability reinvestigations. Agencies, relying on authorities
such as the Computer Security Act of 1987 and OMB Circular No. A-130
Revised (issued February 8, 1996), may require incumbents of certain
public trust positions to undergo periodic reinvestigations. The
appropriate level of any reinvestigation will be determined by the
agency, but may be based on supplemental guidance provided by OPM.
(e) Risk level changes. If an individual experiences a change in
position risk level (moves to a higher risk level position, or the risk
level of the position itself is changed) the individual may encumber or
remain in the position. Any upgrade investigation required for the new
risk level should be initiated within 14 calendar days after the move or
the new designation is final.
(f) Any suitability investigation completed by an agency under
provisions of paragraphs (d) or (e) of this section must be adjudicated
by the employing agency. The subject's employment status will determine
the applicable agency authority and procedures to be followed in any
action taken.
Subpart B--Suitability Determinations
Sec. 731.201 Standard.
Subject to subpart A of this part, an applicant, appointee, or
employee may be denied Federal employment or removed from a position
only when the action will protect the
[[Page 30]]
integrity or promote the efficiency of the service.
Sec. 731.202 Criteria.
(a) General. In determining whether its action will protect the
integrity or promote the efficiency of the service, OPM, or an agency to
which OPM has delegated authority, shall make its determination on the
basis of the specific factors in paragraph (b) of this section, with
appropriate consideration given to the additional considerations
outlined in paragraph (c) of this section.
(b) Specific factors. When making a determination under paragraph
(a) of this section, the following may be considered a basis for finding
an individual unsuitable:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, intentional false statement or deception or fraud in
examination or appointment;
(4) Refusal to furnish testimony as required by Sec. 5.4 of this
title;
(5) Alcohol abuse of a nature and duration which suggests that the
applicant or appointee would be prevented from performing the duties of
the position in question, or would constitute a direct threat to the
property or safety of others;
(6) Illegal use of narcotics, drugs, or other controlled substances,
without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by force;
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. In making a determination under
paragraphs (a) and (b) of this section, OPM and agencies shall consider
the following additional considerations to the extent they deem them
pertinent to the individual case:
(1) The nature of the position for which the person is applying or
in which the person is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
Sec. 731.203 Actions by OPM and other agencies.
(a) List of actions. For purposes of this part, an action is one or
more of the following:
(1) Cancellation of eligibility;
(2) Denial of appointment;
(3) Removal;
(4) Cancellation of reinstatement eligibility;
(5) Debarment.
(b) An applicant's eligibility may be cancelled, an applicant may be
denied employment, or an appointee may be removed when OPM or an agency
exercising delegated authority under this part finds that the applicant
or appointee is unsuitable for the reasons cited in Sec. 731.202 subject
to the agency limitations of Sec. 731.103(a).
(c) OPM may require that an employee be removed on the basis of a
material, intentional false statement, or deception or fraud in
examination or appointment; or refusal to furnish testimony; or a
statutory or regulatory bar. OPM may also cancel any reinstatement
eligibility obtained as a result of false statement, deception or fraud
in the examination or appointment process.
(d) An action to remove an appointee or employee for suitability
reasons under this part is not an action under parts 752 or 315 of this
title. Where behavior covered by this part may also form the basis for a
part 752 or 315 action, agencies may use part 315 or 752, as
appropriate, instead of this part.
(e) Agencies are required to report to OPM all unfavorable
adjudicative actions taken under this part, and all actions based on an
OPM investigation.
Sec. 731.204 Debarment by OPM.
(a) When OPM finds a person unsuitable for any reason listed in
Sec. 731.202, OPM, in its discretion, may deny that person examination
for, and appointment to, a competitive service position for a period of
not more than 3 years from the date of determination of unsuitability.
(b) On expiration of a period of debarment, OPM or an agency may
redetermine a person's suitability for appointment in accordance with
the procedures of this part.
(c) OPM, in its sole discretion, determines the duration of any
period of debarment imposed under this section.
Sec. 731.205 Debarment by agencies.
(a) Subject to the provisions of Sec. 731.103, when an agency finds
an applicant or appointee unsuitable for reasons listed in Sec. 731.202,
the agency may deny that person examination for, and appointment to,
all, or specific,, positions within the agency for a period of not more
than 1 year from the date of determination of unsuitability.
(b) On expiration of a period of agency debarment, the agency may
redetermine a person's suitability for appointment by the agency, in
accordance with the procedures of this part.
(c) The agency is responsible for enforcing the period of debarment
and taking appropriate action should the individual apply or be
inappropriately appointed during the debarment period. This does not
limit OPM's
[[Page 31]]
ability to exercise jurisdiction and take an action if it deems
appropriate.
(d) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
Subpart C--OPM Suitability Action Procedures
Sec. 731.301 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when OPM proposes to take, or instructs an agency to take, a final
suitability action against an applicant, appointee or employee.
(b) Definition. In this subpart, days means calendar days.
Sec. 731.302 Notice of proposed action.
(a) OPM shall notify the applicant, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action and
of the charges against the respondent (including the availability for
review, upon request, of the materials relied upon). The notice shall
state the specific reasons for the proposed action and that the
respondent has the right to answer the notice in writing. If the
respondent is an employee, the notice shall further state that the
employee may also make an oral answer, as specified in Sec. 731.303(a).
The notice shall further inform the respondent of the time limits for
response as well as the address to which such response should be made.
(b) The notice of proposed action shall be served upon the
respondent by being mailed or hand delivered to the respondent's last
known residence, and/or duty station, no less than 30 days prior to the
effective date of the proposed action. If the respondent is employed in
the competitive service on the date the notice is served, the respondent
shall be entitled to be retained in a pay status during the notice
period.
(c) OPM shall send a copy of this notice to any employing agency
that is involved.
Sec. 731.303 Answer.
(a) Respondent's answer. A respondent may answer the charges in
writing and furnish documentation and/or affidavits in support of the
response. A respondent who is an employee may also answer orally. The
respondent may be represented by a representative of the respondent's
choice, and such representative shall be designated in writing. To be
timely, a written answer shall be made no more than 30 days after the
date of the notice of proposed action. In the event an employee requests
to make an oral answer, the request must be made within this 30 day time
frame, and OPM shall determine the time and place thereof, and shall
consider any answer the respondent makes in reaching a decision.
(b) Agency's answer. An employing agency may also answer the notice
of proposed action. The time limit for filing an answer is 30 days from
the date of the notice. OPM shall consider any answer the agency makes
in reaching a decision.
Sec. 731.304 Decision.
The decision shall be in writing, dated, and inform the respondent
of the reasons for the decision. The employing agency shall remove the
appointee or employee from the rolls within 5 work days of receipt of
OPM's final decision. The respondent shall also be informed that an
adverse decision can be appealed in accordance with subpart DE of this
part. OPM shall also notify the respondent's employing agency of its
decision.
Subpart D--Agency Suitability Action Procedures
Sec. 731.401 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when an agency proposes to take a final suitability action against an
applicant or appointee.
(b) Definition. In this subpart, days mean calendar days.
Sec. 731.402 Notice of proposed action.
The agency shall provide the applicant or appointee (hereinafter,
the ``respondent'') reasonable notice in writing of the proposed action
and of the charges against the respondent (including the availability
for review, upon request, of the materials relied upon). The notice
shall state the specific reasons for the proposed action, and that the
respondent has the right to answer the notice in writing. The notice
shall inform the respondent of the time limits for response as well as
the address to which such response should be made. If the respondent is
employed in the competitive service on the date the notice is served,
the respondent shall be entitled to be retained in a pay status during
the notice period.
Sec. 731.403 Answer.
A respondent may answer the charges in writing and furnish
documentation and/or affidavits in support of the response.
Sec. 731.404 Decision.
The decision shall be in writing, dated, and inform the respondent
of the reasons for the decision. The respondent shall also be informed
that an adverse decision can be appealed in accordance with subpart E of
this part. The employing agency shall remove an appointee from the rolls
within 5 work days of their final decision.
[[Page 32]]
Subpart E--Appeal to the Merit Systems Protection Board
Sec. 731.501 Appeal to the Merit Systems Protection Board.
(a) Appeal to the Merit Systems Protection Board. An individual who
has been found unsuitable for employment may appeal the determination to
the Merit Systems Protection Board. If the Board finds that one or more
charges are supported by a preponderance of the evidence, it shall
affirm the determination. If the Board sustains fewer than all the
charges, the Board shall remand the case to OPM or the agency to
determine whether the action taken is still appropriate based on the
sustained charge(s). This determination of whether the action taken is
appropriate shall be final without any further appeal to the Board.
(b) Appeal procedures. The procedures for filing an appeal with the
Board are found at part 1201 of this chapter.
Subpart F--Savings Provision
Sec. 731.601 Savings provision.
No provision of the regulations in this part shall be applied in
such a way as to affect any administrative proceeding pending on January
29, 2001. An administrative proceeding is deemed to be pending from the
date of the agency or OPM ``notice of proposed action'' described in
Sec. 731.402.
PART 732--NATIONAL SECURITY POSITIONS--Table of Contents
Subpart A--Scope
Sec.
732.101 Purpose.
732.102 Definition and applicability.
Subpart B--Designation and Investigative Requirements
732.201 Sensitivity level designations and investigative requirements.
732.202 Waivers and exceptions to investigative requirements.
732.203 Periodic reinvestigation requirements.
Subpart C--Due Process and Reporting
732.301 Due process.
732.302 Reporting to OPM.
Subpart D--Security and Related Determinations
732.401 Reemployment eligibility of certain former Federal employees.
Authority: 5 U.S.C. 3301, 3302, 7312; 50 U.S.C. 403; E.O. 10450, 3
CFR, 1949-1953 Comp., p. 936.
Source: 56 FR 18654, Apr. 23, 1991, unless otherwise noted.
Subpart A--Scope
Sec. 732.101 Purpose.
This part sets forth certain requirements and procedures which each
agency shall observe for determining national security positions
pursuant to Executive Order 10450--Security Requirements for Government
Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936,
as amended.
Sec. 732.102 Definition and applicability.
(a) For purposes of this part, the term ``national security
position'' includes: (1) Those positions that involve activities of the
Government that are concerned with the protection of the nation from
foreign aggression or espionage, including development of defense plans
or policies, intelligence or counterintelligence activities, and related
activities concerned with the preservation of the military strength of
the United States; and (2) positions that require regular use of, or
access to, classified information. Procedures and guidance provided in
FPM chapter 732 and related issuances apply.
(b) The requirements of this part apply to competitive service
positions, and to Senior Executive Service positions filled by career
appointment, within the Executive Branch, and agencies may apply them to
excepted service positions within the Executive Branch.
Subpart B--Designation and Investigative Requirements
Sec. 732.201 Sensitivity level designations and investigative requirements.
(a) For purposes of this part, the head of each agency shall
designate, or cause to be designated, any position within the department
or agency the occupant of which could bring about, by virtue of the
nature of the position, a material adverse effect on the national
security as a sensitive position
[[Page 33]]
at one of three sensitivity levels: Special-Sensitive, Critical-
Sensitive, or Noncritical-Sensitive.
(b) Investigative requirements for each sensitivity level are
provided in FPM chapter 732.
Sec. 732.202 Waivers and exceptions to investigative requirements.
(a) Waivers--(1) General. A waiver of the preappointment
investigative requirement contained in section 3(b) of Executive Order
10450 for employment in a sensitive national security position may be
made only for a limited period: (i) In case of emergency if the head of
the department or agency concerned finds that such action is necessary
in the national interest; and (ii) when such finding is made a part of
the records of the department or agency.
(2) Specific waiver requirements. (i) The preappointment
investigative requirement may not be waived for appointment to positions
designated Special-Sensitive under this part.
(ii) For positions designated Critical-Sensitive under this part,
the records of the department or agency required by Sec. 732.202(a)(1)
of this part shall show what decision was made on obtaining prewaiver
checks, as follows: (A) The nature of the emergency precluded obtaining
prewaiver checks; or (B) checks were initiated but not all responses
were received within 5 days; or (C) checks made and favorably completed
are listed.
(iii) The waiver restriction is optional for positions designated
Noncritical-Sensitive under this part.
(iv) When waiver is authorized, the required investigation must be
initiated within 14 days of placement of the individual in the position.
(b) Exceptions to investigative requirements. (1) Pursuant to
section 3(a) of E.O. 10450, the following positions are exempt from the
investigative requirements of E.O. 10450, providing that the employing
agency conducts such checks as it deems appropriate to insure that the
employment or retention of individuals in these positions is clearly
consistent with the interests of the national security:
(i) Positions that are intermittent, seasonal, per diem, or
temporary, not to exceed an aggregate of 180 days in either a single
continuous appointment or series of appointments; or
(ii) Positions filled by aliens employed outside the United States.
(2) Other positions that OPM, in its discretion, deems appropriate
may be made exempt based on a written request to OPM by the agency head
in whose department or agency the positions are located.
Sec. 732.203 Periodic reinvestigation requirements.
The incumbent of each position designated Special-Sensitive or
Critical-Sensitive under this part shall be subject to periodic
reinvestigation of a scope prescribed by OPM 5 years after placement,
and at least once each succeeding 5 years. The employing agency will use
the results of such periodic reinvestigation to determine whether the
continued employment of the individual in a sensitive position is
clearly consistent with the interests of the national security.
Subpart C--Due Process and Reporting
Sec. 732.301 Due process.
When an agency makes an adjudicative decision under this part based
on an OPM investigation, or when an agency, as a result of information
in an OPM investigation, changes a tentative favorable placement or
clearance decision to an unfavorable decision, the agency must:
(a) Insure that the records used in making the decision are
accurate, relevant, timely, and complete to the extent reasonably
necessary to assure fairness to the individual in any determination.
(b) Comply with all applicable administrative due process
requirements, as provided by law, rule, or regulation.
(c) At a minimum, provide the individual concerned:
(1) Notice of the specific reason(s) for the decision; and
(2) An opportunity to respond; and
(3) Notice of appeal rights, if any.
(d) Consider all available information in reaching its final
decision.
(e) Keep any record of the agency action required by OPM as
published in
[[Page 34]]
the Federal Personnel Manual and related issuances.
Sec. 732.302 Reporting to OPM.
(a) In accordance with section 9(a) of E.O. 10450, each agency
conducting an investigation under E.O. 10450 is required to notify OPM
when the investigation is initiated.
(b) In accordance with section 14(c) of E.O. 10450, agencies shall
report to OPM the action taken with respect to individuals investigated
pursuant to E.O. 10450 as soon as possible and in no event later than 90
days after receipt of the final report of investigation.
Subpart D--Security and Related Determinations
Sec. 732.401 Reemployment eligibility of certain former Federal employees.
(a) Request. A former employee who was terminated, or who resigned
while charges were pending, from a department or agency of the
Government under a statute or executive order authorizing termination in
the interest of national security or on grounds relating to loyalty, and
authorizing OPM to determine the eligibility for employment in another
department or agency of the Government, may request OPM in writing to
determine whether the individual is eligible for employment in another
department or agency of the Government.
(b) Action by OPM. (1) OPM shall determine, and will notify the
former employee, after appropriate consideration of the case, including
such investigation as it considers necessary, whether the individual may
be employed in another department or agency of the Government.
(2) If a former Federal employee found ineligible under this section
has had an opportunity to comment on the reasons for the action, or has
furnished them to OPM or to the former employing agency, OPM may cancel
the reinstatement eligibility if the eligibility resulted from the last
Federal employment and was obtained through fraud, and OPM may prescribe
a period of debarment not to exceed 3 years.
PART 733--POLITICAL ACTIVITY--FEDERAL EMPLOYEES RESIDING IN DESIGNATED LOCALITIES--Table of Contents
Sec.
733.101 Definitions.
733.102 Exclusion of employees in the Criminal Division of the United
States Department of Justice.
733.103 Permitted political activities--employees who reside in
designated localities.
733.104 Prohibited political activities--employees who reside in
designated localities.
733.105 Permitted political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.106 Prohibited political activities--employees who reside in
designated localities and are employed in certain agencies and
positions.
733.107 Designated localities.
Authority: 5 U.S.C. 7325; sec. 308 of Pub. L. 104-93, 109 Stat. 961,
966 (Jan. 6, 1996).
Source: 63 FR 4558, Jan. 30, 1998, unless otherwise noted.
Sec. 733.101 Definitions.
In this part:
Accept means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or a
partisan political group, but does not include ministerial activities
which precede or follow this official act.
Candidate means an individual who seeks nomination or election to
any elective office whether or not the person is elected. An individual
is deemed to be a candidate if the individual has received political
contributions or made expenditures or has consented to another person
receiving contributions or making expenditures with a view to bringing
about the individual's nomination or election.
Campaign means all acts done by a candidate and his or her adherents
to obtain a majority or plurality of the votes to be cast toward a
nomination or in an election.
Election includes a primary, special, runoff, or general election.
Employee means:
Any individual (other than the President, the Vice President, or a
member
[[Page 35]]
of the uniformed services) employed or holding office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The government of the District of Columbia, other than the Mayor
or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
On Duty means the period when an employee is:
(1) In a pay status other than paid leave, compensatory time off,
credit hours, time off as an incentive award, or excused or authorized
absence (including leave without pay); or
(2) Representing any agency or instrumentality of the United States
Government or any agency or instrumentality of the District of Columbia
Government in an official capacity.
Partisan when used as an adjective means related to a political
party.
Partisan political group means any committee, club, or other
organization which is affiliated with a political party or candidate for
public office in a partisan election, or organized for a partisan
purpose, or which engages in partisan political activity.
Partisan political office means any office for which any candidate
is nominated or elected as representing a party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected, but does not include any
office or position within a political party or affiliated organization.
Person means an individual; a State, local, or foreign government;
or a corporation and the subsidiaries it controls, company, association,
firm, partnership, society, joint stock company, or any other
organization or institution, including any officer, employee, or agent
of such person or entity.
Political activity means an activity directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose.
(1) A political contribution includes:
(i) Any contract, promise, or agreement, express or implied, whether
or not legally enforceable, to make a contribution for any political
purpose;
(ii) Any payment by any person, other than a candidate or a
political party or affiliated organization, of compensation for the
personal services of another person which are rendered to any candidate
or political party or affiliated organization without charge for any
political purpose; and
(iii) The provision of personal services, paid or unpaid, for any
political purpose.
(2) A political contribution does not include the value of services
provided without compensation by any individual who volunteers on behalf
of any candidate, campaign, political party, or partisan political
group.
Political management means the direction or supervision of a
partisan political group or campaign for partisan political office.
Political party means a national political party, a State political
party, or an affiliated organization.
Political purpose means an objective of promoting or opposing a
political party, candidate for partisan political office, or partisan
political group.
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or a
partisan political group, but does not include ministerial activities
which precede or follow this official act.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally leased
space in which Federal employees perform official duties on a regular
basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
[[Page 36]]
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
Solicit means to request expressly of another person that he or she
contribute something to a candidate, a campaign, a political party, or
partisan political group.
Subordinate refers to the relationship between two employees when
one employee is under the supervisory authority, control or
administrative direction of the other employee.
Uniformed services means uniformed services as defined in 5 U.S.C.
2101(3).
Sec. 733.102 Exclusion of employees in the Criminal Division of the United States Department of Justice.
Employees in the Criminal Division in the Department of Justice
(except employees appointed by the President, by and with the advice and
consent of the Senate) specifically are excluded from coverage under the
provisions of this part.
Sec. 733.103 Permitted political activities--employees who reside in designated localities.
(a) This section does not apply to an individual who is employed in
an agency or position described in Sec. 733.105(a), unless that
individual has been appointed by the President, by and with the advice
and consent of the Senate.
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may:
(1) Run as independent candidates for election to partisan political
office in elections for local office in the municipality or political
subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political subdivision;
(3) Accept or receive a political contribution on behalf of an
individual who is a candidate for local partisan political office and
who represents a political party;
(4) Solicit, accept, or receive uncompensated volunteer services as
an independent candidate, or on behalf of an independent candidate, for
local partisan political office, in connection with the local elections
of the municipality or subdivision; and
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for local partisan political
office and who represents a political party.
Sec. 733.104 Prohibited political activities--employees who reside in designated localities.
(a) This section does not apply to an individual who is employed in
an agency or position described in Sec. 733.105(a), unless that
individual has been appointed by the President, by and with the advice
and consent of the Senate.
(b) Employees who reside in a municipality or political subdivision
designated by OPM under Sec. 733.107 may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit a political contribution on behalf of an individual who
is a candidate for local partisan political office and who represents a
political party;
(3) Knowingly solicit a political contribution from any Federal
employee, except as permitted under 5 U.S.C. 7323(a)(2)(A)-(C).
(4) Accept or receive a political contribution from a subordinate;
or
(5) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose.
(c) An employee covered under this section may not participate in
political activities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
[[Page 37]]
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(d) An employee described in 5 U.S.C. 7324(b)(2) may participate in
political activity otherwise prohibited by Sec. 733.104(c) if the costs
associated with that political activity are not paid for by money
derived from the Treasury of the United States.
(e) Candidacy for, and service in, a partisan political office shall
not result in neglect of, or interference with, the performance of the
duties of the employee or create a conflict, or apparent conflict, of
interest.
Sec. 733.105 Permitted political activities--employees who reside in designated localities and are employed in certain agencies and positions.
(a) This section applies to employees who reside in designated
localities and are employed in the following agencies or positions:
(1) Federal Election Commission;
(2) Federal Bureau of Investigation;
(3) United States Secret Service;
(4) Central Intelligence Agency;
(5) National Security Council;
(6) National Security Agency;
(7) Defense Intelligence Agency;
(8) Merit Systems Protection Board;
(9) United States Office of Special Counsel;
(10) Office of Criminal Investigation of the Internal Revenue
Service;
(11) Office of Investigative Programs of the United States Customs
Service;
(12) Office of Law Enforcement of the Bureau of Alcohol, Tobacco,
and Firearms;
(13) National Imagery and Mapping Agency;
(14) Career Appointees in the Senior Executive Service;
(15) Administrative Law Judges; and
(16) Contract appeals board members described in 5 U.S.C. 5372a.
(b) This section does not apply to individuals who have been
appointed by the President by and with the advice and consent of the
Senate, even though they are employed in the agencies and positions
described in paragraph (a) of this section.
(c) Employees who are covered under this section and who reside in a
municipality or political subdivision designated by OPM under
Sec. 733.107 may:
(1) Run as independent candidates for election to partisan political
office in elections for local office in the municipality or political
subdivision;
(2) Solicit, accept, or receive a political contribution as, or on
behalf of, an independent candidate for partisan political office in
elections for local office in the municipality or political subdivision;
(3) Solicit, accept, or receive uncompensated volunteer services as,
or on behalf of, an independent candidate for partisan political office
in elections for office in the municipality or subdivision; and
(4) Take an active part in other political activities associated
with elections for local partisan political office and in managing the
campaigns of candidates for election to local partisan political office
in the municipality or political subdivision, but only as an independent
candidate or on behalf of, or in opposition to, an independent
candidate.
Sec. 733.106 Prohibited political activities--employees who reside designated localities and are employed in certain agencies and positions.
(a) This section does not apply to individuals who have been
appointed by the President, by and with the advice and consent of the
Senate, even though they are employed in the agencies and positions
described in Sec. 733.105(a).
(b) Employees who are employed in the agencies and positions
described in Sec. 733.105(a), and who reside in a municipality or
political subdivision designated by OPM under Sec. 733.107, may not:
(1) Run as the representative of a political party for local
partisan political office;
(2) Solicit, accept, or receive a political contribution on behalf
of an individual who is a candidate for local partisan political office
and who represents a political party;
(3) Knowingly solicit a political contribution from any Federal
employee;
(4) Accept or receive a political contribution from a subordinate;
(5) Solicit, accept, or receive uncompensated volunteer services on
behalf of an individual who is a candidate for
[[Page 38]]
local partisan political office and who represents a political party;
(6) Solicit, accept, or receive uncompensated volunteer services
from a subordinate for any political purpose; or
(7) Take an active part in other political activities associated
with elections for local partisan political office, when such
participation occurs on behalf of a political party, partisan political
group, or a candidate for local partisan political office who represents
a political party.
(c) An employee covered under this section may not participate in
political activities:
(1) While he or she is on duty:
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(d) Candidacy for, and service in, or partisan political office
shall not result in neglect of, or interference with, the performance of
the duties of the employee or create a conflict, or apparent conflict,
of interest.
Sec. 733.107 Designated localities.
(a) OPM may designate a municipality or political subdivision in
Maryland or Virginia and in the immediate vicinity of the District of
Columbia, or a municipality in which the majority of voters are employed
by the Government of the United States, when OPM determines that,
because of special or unusual circumstances, it is in the domestic
interest of employees to participate in local elections.
(b) Information as to the documentation required to support a
request for designation is furnished by the General Counsel of OPM on
request.
(c) The following municipalities and political subdivisions have
been designated, effective on the day specified:
In Maryland
Annapolis (May 16, 1941).
Anne Arundel County (March 14, 1973).
Berwyn Heights (June 15, 1944).
Bethesda (Feb. 17, 1943).
Bladensburg (April 20, 1942).
Bowie (April 11, 1952).
Brentwood (Sept. 26, 1940).
Calvert County (June 18, 1992).
Capitol Heights (Nov. 12, 1940).
Cheverly (Dec. 18, 1940).
Chevy Chase, section 3 (Oct. 8, 1940).
Chevy Chase, section 4 (Oct. 2, 1940).
Chevy Chase View (Feb. 26, 1941).
Chevy Chase Village, Town of (March 4, 1941).
College Park (June 13, 1945).
Cottage City (Jan. 15, 1941).
District Heights (Nov. 2, 1940).
Edmonston (Oct. 24, 1940).
Fairmont Heights (Oct. 24, 1940).
Forest Heights (April 22, 1949).
Frederick County (May 31, 1991).
Garrett Park (Oct. 2, 1940).
Glenarden (May 21, 1941).
Glen Echo (Oct. 22, 1940).
Greenbelt (Oct. 4, 1940).
Howard County (April 25, 1974).
Hyattsville (Sept. 20, 1940).
Kensington (Nov. 8, 1940).
Landover Hills (May 5, 1945).
Martin's Additions, Village of (Feb. 13, 1941).
Montgomery County (April 30, 1964).
Morningside (May 19, 1949).
Mount Rainier (Nov. 22, 1940).
New Carrollton (July 7, 1981).
North Beach (Sept. 20, 1940).
North Brentwood (May 6, 1941).
North Chevy Chase (July 22, 1942).
Northwest Park (Feb. 17, 1943).
Prince George's County (June 19, 1962).
Riverdale (Sept. 26, 1940).
Rockville (April 15, 1948).
St. Mary's County (March 2, 1998).
Seat Pleasant (Aug. 31, 1942).
Somerset (Nov. 22, 1940).
Takoma Park (Oct. 22, 1940).
University Park (Jan. 18, 1941).
Washington Grove (April 5, 1941).
In Virginia
Alexandria (April 15, 1941).
Arlington County (Sept. 9, 1940).
Clifton (July 14, 1941).
Fairfax, City of (Feb. 9, 1954).
Fairfax County (Nov. 10, 1949).
Falls Church (June 6, 1941).
Herndon (April 7, 1945).
Loudoun County (Oct. 1, 1971).
Manassas (Jan. 8, 1980).
Manassas Park (March 4, 1980).
Portsmouth (Feb. 27, 1958).
Prince William County (Feb. 14, 1967).
Spotsylvania County (March 2, 1998).
Stafford County (Nov. 2, 1979).
Vienna (March 18, 1946).
[[Page 39]]
Other Municipalities
Anchorage, Alaska (Dec. 29, 1947).
Benicia, Calif. (Feb. 20, 1948).
Bremerton, Wash. (Feb. 27, 1946).
Centerville, Ga. (Sept. 16, 1971).
Crane, Ind. (Aug. 3, 1967).
Elmer City, Wash. (Oct. 28, 1947).
Huachuca City, Ariz. (April 9, 1959).
New Johnsonville, Tenn. (April 26, 1956).
Norris, Tenn. (May 6, 1959).
Port Orchard, Wash. (Feb. 27, 1946).
Sierra Vista, Ariz. (Oct. 5, 1955).
Warner Robins, Ga. (March 19, 1948).
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES--Table of Contents
Subpart A--General Provisions
Sec.
734.101 Definitions.
734.102 Jurisdiction.
734.103 Multicandidate political committees of Federal labor
organizations and Federal employee organizations.
734.104 Restriction of political activity.
Subpart B--Permitted Activities
734.201 Exclusion from coverage.
734.202 Permitted activities.
734.203 Participation in nonpartisan activities.
734.204 Participation in political organizations.
734.205 Participation in political campaigns.
734.206 Participation in elections.
734.207 Candidacy for public office.
734.208 Participation in fundraising.
Subpart C--Prohibited Activities
734.301 Exclusion from coverage.
734.302 Use of official authority; prohibition.
734.303 Fundraising.
734.304 Candidacy for public office.
734.305 Soliciting or discouraging the political participation of
certain persons.
734.306 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of
official duties, or using a Federal vehicle.
734.307 Campaigning for a spouse or family member.
Subpart D--Employees in Certain Agencies and Positions
734.401 Coverage.
734.402 Expression of an employee's individual opinion.
734.403 Participation in elections.
734.404 Participation in political organizations.
734.405 Campaigning for a spouse or family member.
734.406 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of
official duties, or using a Federal vehicle; prohibition.
734.407 Use of official authority; prohibition.
734.408 Participation in political management and political
campaigning; prohibitions.
734.409 Participation in political organizations; prohibitions.
734.410 Participation in political fundraising; prohibitions.
734.411 Participation in political campaigning; prohibitions.
734.412 Participation in elections; prohibitions.
734.413 Employees of the Federal Election Commission; prohibitions.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid From the Appropriation for the Executive Office of the
President
734.501 Permitted and prohibited activities.
734.502 Participation in political activity while on duty, in uniform,
in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
734.503 Allocation and reimbursement of costs associated with political
activities.
734.504 Contributions to political action committees through voluntary
payroll allotments prohibited.
Subpart F--Employees Who Work on an Irregular or Occasional Basis
734.601 Employees who work on an irregular or occasional basis.
Subpart G--Related Statutes and Executive Orders
734.701 General.
734.702 Related statutes and Executive orders.
Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2 of
1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978
Comp. p. 264.
Source: 59 FR 48769, Sept. 23, 1994, unless otherwise noted.
Subpart A--General Provisions
Sec. 734.101 Definitions.
For the purposes of this part:
Accept means to come into possession of something from a person
officially
[[Page 40]]
on behalf of a candidate, a campaign, a political party, or a partisan
political group, but does not include ministerial activities which
precede or follow this official act.
Candidate means an individual who seeks nomination or election to
any elective office whether or not the person is elected. An individual
is deemed to be a candidate if the individual has received political
contributions or made expenditures or has consented to another person
receiving contributions or making expenditures with a view to bringing
about the individual's nomination or election.
Campaign means all acts done by a candidate and his or her adherents
to obtain a majority or plurality of the votes to be cast toward a
nomination or in an election.
Election includes a primary, special, runoff, or general election.
Employee means any individual (other than the President, Vice
President, or a member of the uniformed services) employed or holding
office in--
(1) An Executive agency other than the General Accounting Office;
(2) A position within the competitive service which is not in an
Executive agency;
(3) The Government of the District of Columbia, other than the Mayor
or a member of the City Council or the Recorder of Deeds; or
(4) The United States Postal Service or the Postal Rate Commission.
Employing office shall have the meaning given by the head of each
agency or instrumentality of the United States Government or District of
Columbia Government covered by this part. Each agency or instrumentality
shall provide notice identifying the appropriate employing offices
within it through internal agency notice procedures.
Federal employee organization means any lawful nonprofit
organization, association, society, or club composed of Federal
employees.
Federal labor organization means an organization defined in 5 U.S.C.
7103(a)(4).
Multicandidate political committee means an organization defined in
2 U.S.C. 441a(a)(4).
Nonpartisan election means--
(1) An election in which none of the candidates is to be nominated
or elected as representing a political party any of whose candidates for
Presidential elector received votes in the last preceding election at
which Presidential electors were selected; or
(2) An election involving a question or issue which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance, or any
question or issue of a similar character.
Occasional means occurring infrequently, at irregular intervals, and
according to no fixed or certain scheme; acting or serving for the
occasion or only on particular occasions.
Office means the U.S. Office of Personnel Management.
On Duty means the time period when an employee is:
(1) In a pay status other than paid leave, compensatory time off,
credit hours, time off as an incentive award, or excused or authorized
absence (including leave without pay); or
(2) Representing any agency or instrumentality of the United States
Government or any agency or instrumentality of the District of Columbia
Government in an official capacity.
Partisan when used as an adjective means related to a political
party.
Partisan political group means any committee, club, or other
organization which is affiliated with a political party or candidate for
public office in a partisan election, or organized for a partisan
purpose, or which engages in partisan political activity.
Partisan political office means any office for which any candidate
is nominated or elected as representing a party any of whose candidates
for Presidential elector received votes in the last preceding election
at which Presidential electors were selected, but does not include any
office or position within a political party or affiliated organization.
Person means an individual; a State, local, or foreign government;
or a corporation and subsidiaries it controls, company, association,
firm, partnership, society, joint stock company, or any other
organization or institution,
[[Page 41]]
including any officer, employee, or agent of such person or entity.
Political Action Committee means any committee, association, or
organization (whether or not incorporated) which accepts contributions
or makes expenditures for the purpose of influencing, or attempting to
influence, the nomination or election of one or more individuals to
Federal, State, or local elective public office.
Political activity means an activity directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group.
Political contribution means any gift, subscription, loan, advance,
or deposit of money or anything of value, made for any political
purpose.
(a) A political contribution includes:
(1) Any contract, promise, or agreement, express or implied, whether
or not legally enforceable, to make a contribution for any political
purpose;
(2) Any payment by any person, other than a candidate or a political
party or affiliated organization, of compensation for the personal
services of another person which are rendered to any candidate or
political party or affiliated organization without charge for any
political purpose; and
(3) The provision of personal services, paid or unpaid, for any
political purpose.
(b) A political contribution does not include the value of services
provided without compensation by any individual who volunteers on behalf
of any candidate, campaign, political party, or partisan political
group.
Political management means the direction or supervision of a
partisan political group or campaign for partisan political office.
Political party means a national political party, a State political
party, or an affiliated organization.
Political purpose means an objective of promoting or opposing a
political party, candidate for partisan political office, or partisan
political group.
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or a
partisan political group, but does not include ministerial activities
which precede or follow this official act.
Recurrent means occurring frequently, or periodically on a regular
basis.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally leased
space in which Federal employees perform official duties on a regular
basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
Solicit means to request expressly of another person that he or she
contribute something to a candidate, a campaign, a political party, or
partisan political group.
Subordinate refers to the relationship between two employees when
one employee is under the supervisory authority, control or
administrative direction of the other employee.
Uniformed services means uniformed services as defined in 5 U.S.C.
2101(3).
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35099, July 5, 1996]
Sec. 734.102 Jurisdiction.
(a) The United States Office of Special Counsel has exclusive
authority to investigate allegations of political activity prohibited by
the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR part
734, prosecute alleged violations before the United States Merit Systems
Protection Board, and render advisory opinions concerning the
applicability of 5 CFR part 734 to the political activity of Federal
employees and employees of the
[[Page 42]]
District of Columbia government. (5 U.S.C. 1212 and 1216. Advice
concerning the Hatch Act Reform Amendments may be requested from the
Office of Special Counsel:
(1) By letter addressed to the Office of Special Counsel at 1730 M
Street NW., Suite 300, Washington, DC 20036, or
(2) By telephone on (202) 653-7188, or (1-800) 854-2824.
(b) The Merit Systems Protection Board has exclusive authority to
determine whether a violation of the Hatch Act Reform Amendments of
1993, as implemented by 5 CFR part 734, has occurred and to impose a
minimum penalty of suspension for 30 days and a maximum penalty of
removal for violation of the political activity restrictions regulated
by this part. (5 U.S.C. 1204 and 7326).
(c) The Office of Personnel Management is authorized to issue
regulations describing the political activities which are permitted and
prohibited under the Hatch Act Reform Amendments of 1993. (5 U.S.C.
1103, 1104, 7325; Reorganization Plan No. 2 of 1978, 92 Stat. 3783, 3
CFR 1978 Comp. p. 323; and E.O. 12107, 3 CFR 1978 Comp. p. 264.)
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.103 Multicandidate political committees of Federal labor organizations and Federal employee organizations.
(a) In order to qualify under this part, each multicandidate
political committee of a Federal labor organization must provide to the
Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined by 2 U.S.C.
441a(a)(4);
(2) Information identifying the Federal labor organization to which
the multicandidate political committee is connected; and
(3) Information that identifies the Federal labor organization as a
labor organization defined at 5 U.S.C. 7103(4).
(b) In order to qualify under this part, each multicandidate
political committee of a Federal employee organization must provide to
the Office the following:
(1) Information verifying that the multicandidate political
committee is a multicandidate political committee as defined in 2 U.S.C.
441a(a)(4);
(2) Information identifying the Federal employee organization to
which the multicandidate political committee is connected; and
(3) Information indicating that the multicandidate political
committee was in existence as of October 6, 1993.
Sec. 734.104 Restriction of political activity.
No further proscriptions or restrictions may be imposed upon
employees covered under this regulation except:
(a) Employees who are appointed by the President by and with the
advice and consent of the Senate;
(b) Employees who are appointed by the President;
(c) Non-career senior executive service members;
(d) Schedule C employees, 5 CFR 213.3301, 213.3302; and
(e) Any other employees who serve at the pleasure of the President.
Subpart B--Permitted Activities
Sec. 734.201 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.202 Permitted activities.
Employees may take an active part in political activities, including
political management and political campaigns, to the extent not
expressly prohibited by law and this part.
Sec. 734.203 Participation in nonpartisan activities.
An employee may:
(a) Express his or her opinion privately and publicly on political
subjects;
(b) Be politically active in connection with a question which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance or any other
question or issue of a similar character;
(c) Participate in the nonpartisan activities of a civic, community,
social,
[[Page 43]]
labor, or professional organization, or of a similar organization; and
(d) Participate fully in public affairs, except as prohibited by
other Federal law, in a manner which does not compromise his or her
efficiency or integrity as an employee or the neutrality, efficiency, or
integrity of the agency or instrumentality of the United States
Government or the District of Columbia Government in which he or she is
employed.
Example 1: An employee may participate, including holding office,
in any nonpartisan group. Such participation may include fundraising as
long as the fundraising is not in any way connected with any partisan
political issue, group, or candidate, and as long as the fundraising
complies with part 2635 of this title as well as any other directives
that may apply, e.g., the Federal Property Management Regulations in 41
CFR chapter 101.
Example 2: An employee, individually or collectively with other
employees, may petition or provide information to Congress as provided
in 5 U.S.C. 7211.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.204 Participation in political organizations.
An employee may:
(a) Be a member of a political party or other political group and
participate in its activities;
(b) Serve as an officer of a political party or other political
group, a member of a national, State, or local committee of a political
party, an officer or member of a committee of a political group, or be a
candidate for any of these positions;
(c) Attend and participate fully in the business of nominating
caucuses of political parties;
(d) Organize or reorganize a political party organization or
political group; and
(e) Participate in a political convention, rally, or other political
gathering.
(f) Serve as a delegate, alternate, or proxy to a political party
convention.
Example 1: An employee of the Department of Education may serve as a
delegate, alternate, or proxy to a State or national party convention.
Example 2: A noncareer member of the Senior Executive Service, or
other employee covered under this subpart, may serve as a vice-president
of a political action committee, as long as the duties of the office do
not involve personal solicitation, acceptance, or receipt of political
contributions. Ministerial activities which precede or follow the
official acceptance and receipt, such as handling, disbursing, or
accounting for contributions are not covered under the definitions of
accept and receive in Sec. 734.101. Sections 734.208 and 734.303
describe in detail permitted and prohibited activities which are related
to fundraising.
Example 3: An employee of the Federal Communications Commission may
make motions or place a name in nomination at a nominating caucus.
Example 4: An employee of the Department of the Interior may serve
as an officer of a candidate's campaign committee as long as he does not
personally solicit, accept, or receive political contributions. Sections
734.208 and 734.303 of this part describe in detail permitted and
prohibited activities which are related to fundraising.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.205 Participation in political campaigns.
Subject to the prohibitions in Sec. 734.306, an employee may:
(a) Display pictures, signs, stickers, badges, or buttons associated
with political parties, candidates for partisan political office, or
partisan political groups, as long as these items are displayed in
accordance with the provisions of Sec. 734.306 of subpart C of this
part;
(b) Initiate or circulate a nominating petition for a candidate for
partisan political office;
(c) Canvass for votes in support of or in opposition to a partisan
political candidate or a candidate for political party office;
(d) Endorse or oppose a partisan political candidate or a candidate
for political party office in a political advertisement, broadcast,
campaign literature, or similar material;
(e) Address a convention, caucus, rally, or similar gathering of a
political party or political group in support of or in opposition to a
partisan political candidate or a candidate for political party office;
and
(f) Take an active part in managing the political campaign of a
partisan political candidate or a candidate for political party office.
Example 1: An employee of the Environmental Protection Agency may
broadcast
[[Page 44]]
endorsements for a partisan political candidate via a public address
system attached to his or her private automobile.
Example 2: An employee of the Department of Interior may canvass
voters by telephone on behalf of a political party or partisan political
candidate.
Example 3: An employee of the Department of Agriculture may stand
outside of polling places on election day and hand out brochures on
behalf of a partisan political candidate or political party.
Example 4: An employee may appear in a television or radio broadcast
which endorses a partisan political candidate and is sponsored by the
candidate's campaign committee, a political party, or a partisan
political group.
Example 5: An independent contractor is not covered by this part and
may display a political button while performing the duties for which he
or she is contracted.
Example 6: An employee of the Department of Commerce who is on
official travel may take annual leave in the morning to give an address
at a breakfast for a candidate for partisan political office.
Example 7: An employee may manage the political campaign of a
candidate for public office including supervising paid and unpaid
campaign workers.
Example 8: While not on duty, a Federal employee may distribute
campaign leaflets by hand to homes or parked cars even though the
leaflet may contain information concerning where to send contributions
among other factual material about a partisan political candidate.
However, should a member of the public stop the employee and request
further information about contributions, the employee should refer that
request to another campaign worker who is not a Federal employee.
Example 9: An employee may place in his or her front yard a sign or
banner supporting a partisan political candidate.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Sec. 734.206 Participation in elections.
An employee may:
(a) Register and vote in any election;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places;
(c) Serve as an election judge or clerk, or in a similar position;
and
(d) Drive voters to polling places for a partisan political
candidate, partisan political group, or political party.
Example: An employee may drive voters to polling places in a
privately owned vehicle, but not in a Government-owned or leased
vehicle.
Sec. 734.207 Candidacy for public office.
An employee may:
(a) Run as an independent candidate in a partisan election covered
by 5 CFR part 733; and
(b) Run as a candidate in a nonpartisan election.
Example 1: An employee who is a candidate for public office in a
nonpartisan election is not barred by the Hatch Act from soliciting,
accepting, or receiving political contributions for his or her own
campaign; however, such solicitation, acceptance, or receipt must comply
with part 2635 of this title as well as any other directives that may
apply, e.g., The Federal Property Management Regulations in 41 CFR
chapter 101.
Sec. 734.208 Participation in fundraising.
(a) An employee may make a political contribution to a political
party, political group, campaign committee of a candidate for public
office in a partisan election and multicandidate political committee of
a Federal labor or Federal employee organization.
(b) Subject to the prohibitions stated in section 734.303, an
employee may--
(1) Attend a political fundraiser;
(2) Accept and receive political contributions in a partisan
election described in 5 CFR part 733;
(3) Solicit, accept, or receive uncompensated volunteer services
from any individual; and
(4) Solicit, accept, or receive political contributions, as long as:
(i) The person who is solicited for a political contribution belongs
to the same Federal labor organization, or Federal employee
organization, as the employee who solicits, accepts, or receives the
contribution;
(ii) The person who is solicited for a political contribution is not
a subordinate employee; and
(iii) The request is for a contribution to the multicandidate
political committee of a Federal labor organization or to the
multicandidate political committee of a Federal employee organization in
existence on October 6, 1993.
(c) Subject to the provisions of Sec. 734.306, an employee may make
a financial contribution to a political action committee through a
voluntary allotment made under Sec. 550.311(b) of this chapter, if the
head of the employee's agency permits agency employees
[[Page 45]]
to make such allotments to political action committees.
(d) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under section 550.311(b) of this title.
Example 1: An GS-12 employee of the Department of Treasury who
belongs to the same Federal employee organization as a GS-5 employee of
the Department of Treasury may solicit a contribution for the
multicandidate political committee when she is not on duty as long as
the GS-5 employee is not under the supervisory authority of the GS-12
employee.
Example 2: An employee of the National Park Service may give a
speech or keynote address at a political fundraiser when he is not on
duty, as long as the employee does not solicit political contributions,
as prohibited in Sec. 734.303(b) of this part.
Example 3: An employee's name may appear on an invitation to a
political fundraiser as a guest speaker as long as the reference in no
way suggests that the employee solicits or encourages contributions, as
prohibited in Sec. 734.303 of this part and described in example 2
thereunder. However, the employee's official title may not appear on
invitations to any political fundraiser, except that an employee who is
ordinarily addressed using a general term of address, such as ``The
Honorable,'' may use or permit the use of that term of address for such
purposes.
Example 4: When an employee of the Department of Transportation is
not on duty, he or she may engage in activities which do not require
personal solicitations of contributions, such as organizing mail or
phone solicitations for political contributions. Activities such as
stuffing envelopes with requests for political contributions also are
permitted. However, he or she may not sign the solicitation letter
unless the solicitation is for the contribution of uncompensated
volunteer services of individuals who are not subordinate employees. An
employee may not knowingly send to his or her subordinate employees a
letter soliciting the contribution of their uncompensated services.
However, he or she may sign a letter that solicits contributions of
uncompensated volunteer services as part of a general mass mailing that
might reach a subordinate employee, as long as the mass mailing is not
specifically targeted to his or her subordinate employees.
Example 5: An employee who is not on duty may participate in a phone
bank soliciting the uncompensated services of individuals. However, an
employee may not make phone solicitations for political contributions
even anonymously.
Example 6: An employee of the Department of Agriculture who is on
official travel and is not in a pay status nor officially representing
the Department may write invitations in his hotel room to a meet-the-
candidate reception which he plans to hold in his home.
Example 7: An employee may serve as an officer or chairperson of a
political fundraising organization or committee as long as he or she
does not personally solicit, accept, or receive political contributions.
For example, the employee may organize or manage fundraising activities
as long as he or she does not violate the above prohibition.
Example 8: The head of a cabinet-level department may contribute one
of her worn-out cowboy boots to the campaign committee of a Senatorial
candidate to be auctioned off in a fundraising raffle for the benefit of
the candidate's campaign.
Example 9: An employee may help organize a fundraiser including
supplying names for the invitation list as long as he or she does not
personally solicit, accept, or receive contributions.
Example 10 An employee on travel may engage in political activity
when he or she is not on duty without taking annual leave.
Example 11: A Federal employee may solicit, accept, or receive the
uncompensated volunteer services of any individual, except a subordinate
employee, to work on behalf of a partisan political candidate or
organization. However, such solicitation, acceptance, or receipt must
comply with part 2635 of this title as well as any other directives that
may apply, e.g., the Federal Property Management Regulations in 41 CFR
chapter 101. Further, Federal employees are subject to criminal anti-
coercion provisions found at 18 U.S.C. 610.
Example 12: An employee who desires to make a financial contribution
to a political action committee through a voluntary allotment personally
may obtain blank direct deposit forms from his or her payroll office.
However, he or she may not complete the form while he or she is on duty,
on Federal property, or in a Federally owned or leased vehicle.
Moreover, he or she may not personally deliver his or her completed
form, or the completed form of another employee, to the payroll office.
However, the employee may mail his or her direct deposit form to his or
her agency payroll office.
Example 13: Employees who are permitted to solicit, accept, or
receive political contributions under the circumstances described in
Sec. 734.208(b)(4) may not solicit, accept, or receive such
contributions either while they
[[Page 46]]
are on duty, or while they are on Federal premises, or both.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35100, July 5, 1996]
Subpart C--Prohibited Activities
Sec. 734.301 Exclusion from coverage.
This subpart does not apply to employees in the agencies and
positions described in subpart D of this part.
Sec. 734.302 Use of official authority; prohibition.
(a) An employee may not use his or her official authority or
influence for the purpose of interfering with or affecting the result of
an election.
(b) Activities prohibited by paragraph (a) of this section include,
but are not limited to:
(1) Using his or her official title while participating in political
activity;
(2) Using his or her authority to coerce any person to participate
in political activity; and
(3) Soliciting, accepting, or receiving uncompensated individual
volunteer services from a subordinate for any political purpose.
Example 1: An employee who signs a letter seeking uncompensated
volunteer services from individuals may not identify himself or herself
by using his or her official title. However, the employee may use a
general form of address, such as ``The Honorable.''
Example 2: A noncareer member of the Senior Executive Service, or
another employee covered by this subpart, may not ask his or her
subordinate employees to provide uncompensated individual volunteer
services for a political party, partisan political group, or candidate
for partisan political office. Moreover, he or she may not accept or
receive such services from a subordinate employee who offers to donate
them.
Example 3: An employee may not require any person to contribute to a
partisan political campaign in order to win a Federal contract:
[61 FR 35100, July 5, 1996]
Sec. 734.303 Fundraising.
An employee may not knowingly:
(a) Personally solicit, accept or receive a political contribution
from another person, except under the circumstances specified in
Sec. 734.208(b);
(b) Personally solicit political contributions in a speech or
keynote address given at a fundraiser;
(c) Allow his or her official title to be used in connection with
fundraising activities; or
(d) Solicit, accept, or receive uncompensated volunteer services
from an individual who is a subordinate.
Example 1: An employee may not host a fundraiser at his or her home.
However, a spouse who is not covered under this part may host such a
fundraiser and the employee may attend. The employee may not personally
solicit contributions to the fundraiser. Moreover, the employee may not
accept, or receive political contributions, except under the
circumstances stated in Sec. 734.208(b).
Example 2: An employee's name may not appear on an invitation to a
fundraiser as a sponsor of the fundraiser, or as a point of contact for
the fundraiser.
Example 3: An employee may not ask a subordinate employee to
volunteer on behalf of a partisan political campaign.
Example 4: An employee may not call the personnel office of a
business or corporation and request that the corporation or business
provide volunteers or services for a campaign. However, an employee may
call an individual who works for a business or corporation and request
that specific individual's services for a campaign.
Sec. 734.304 Candidacy for public office.
An employee may not run for the nomination or as a candidate for
election to partisan political office, except as specified in
Sec. 734.207.
Sec. 734.305 Soliciting or discouraging the political participation of certain persons.
(a) An employee may not knowingly solicit or discourage the
participation in any political activity of any person who has an
application for any compensation grant, contract, ruling, license,
permit, or certificate pending before the employee's employing office.
(b) An employee may not knowingly solicit or discourage the
participation in any political activity of any person who is the subject
of, or a participant in, an ongoing audit, investigation, or enforcement
action being carried out by the employee's employing office.
(c) Each agency or instrumentality of the United States or District
of Columbia Government shall determine when a matter is pending and
ongoing within employing offices of the agency or instrumentality for
the purposes of this part.
[[Page 47]]
Example 1: An employee with agency-wide responsibility may address a
large, diverse group to seek support for a partisan political candidate
as long as the group has not been specifically targeted as having
matters before the employing office.
Example 2: An employee of the Federal Deposit Insurance Corporation
(FDIC) may not solicit or discourage the participation of an insured
financial institution or its employees if the institution is undergoing
examination by the FDIC.
Example 3: An employee of the Food and Drug Administration may
address a banquet for a partisan political candidate which is sponsored
by the candidate's campaign committee, even though the audience includes
three individuals who are employed by or are officials of a
pharmaceutical company. However, she may not deliver the address if the
banquet is sponsored by a lobbying group for pharmaceutical companies,
of if she knows that the audience will be composed primarily of
employees or officials of such companies.
Sec. 734.306 Participation in political activities while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle.
(a) An employee may not participate in political activities subject
to the provisions of subpart E of this part:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, insignia, or other
similar item that identifies the employing agency or instrumentality or
the position of the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(b) The prohibitions in paragraph (a) of this section do not apply
to employees covered under subpart E of this part.
Example 1: While on leave without pay, an employee is not subject to
the prohibition in Sec. 734.306(a)(1) because he or she is not on duty.
However, while on leave without pay, the employee remains subject to the
other prohibitions in subpart C.
Example 2: A Postal Service employee who uses her private vehicle to
deliver mail may place a political bumper sticker on the vehicle, as
long as she covers the bumper sticker while she is on duty.
Example 3: An employee who uses his or her privately owned vehicle
on a recurrent basis for official business may place a partisan
political bumper sticker on the vehicle, as long as he or she covers the
bumper sticker while the vehicle is being used for official duties.
Example 4: An employee who uses his or her privately owned vehicle
on official business, must cover any partisan political bumper sticker
while the vehicle is being used for official duties, if the vehicle is
clearly identified as being on official business.
Example 5: A noncareer member of the Senior Executive Service, or
any other employee covered by this subpart, who uses his or her
privately owned vehicle only on an occasional basis to drive to another
Federal agency for a meeting, or to take a training course, is not
required to cover a partisan political bumper sticker on his or her
vehicle.
Example 6: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 7: An employee may place a bumper sticker on his or her
privately owned vehicle and park his or her vehicle in a parking lot of
an agency or instrumentality of the United States Government or in a
non-Federal facility for which the employee receives a subsidy from his
or her employing agency or instrumentality.
Example 8: When an agency or instrumentality of the United States
Government leases offices in a commercial building and that building
includes the headquarters of a candidate for partisan political office,
an employee of that agency or instrumentality may do volunteer work,
when he or she is not on duty, at the candidate's headquarters and in
other areas of the building that have not been leased by the Government.
Example 9: A Government agency or instrumentality leases all of the
space in a commercial building; employees may not participate in
political activity in the public areas of the leased building.
Example 10: An employee of the National Aeronautics and Space
Administration (NASA) may not engage in political activities while
wearing a NASA flight patch, NASA twenty-year pin or anything with an
official NASA insignia.
Example 11: If a political event begins while an employee is on duty
and continues into the time when he or she is not on duty, the employee
must wait until he or she is not on duty to attend the event.
Alternatively, an employee may request annual leave to attend the
political event when it begins.
Example 12: Officials of labor organizations who have been given
official time to perform representational duties are on duty.
[[Page 48]]
Example 13: An employee may stuff envelopes for a mailing on behalf
of a candidate for partisan political office while the employee is
sitting in the park during his or her lunch period if he or she is not
considered to be on duty during his or her lunch period.
Example 14: An employee who works at home may engage in political
activities at home when he or she is not in a pay status or representing
the Government in an official capacity.
Example 15: An employee who is appointed by the President by and
with the advice and consent of the Senate (PAS) may attend a political
event with an non-PAS employee whose official duties do not require
accompanying the PAS as long as the non-PAS employee is not on duty.
Example 16: A noncareer member of the Senior Executive Service, or
any other employee covered by this subpart, may not wear partisan
political buttons or display partisan political pictures, signs,
stickers, or badges while he or she is on duty or at his or her place of
work.
Example 17: An employee may not engage in political activity in the
cafeteria of a Federal building, even if the cafeteria is in space
leased by a contractor.
Example 18: An employee who contributes financially to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit forms
while he or she is on duty, in a ``room or building'' defined in
Sec. 734.101 or in a Federally owned or leased vehicle.
Example 19: An employee who contributes financially to a political
action committee through a voluntary allotment may not personally
deliver his or her completed direct deposit form, or the completed
direct deposit form of another employee, to the payroll employees who
would process or administer such forms. However, the employee may mail
his or her direct deposit form to his or her agency payroll office.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.307 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, candidate
for political party office, or candidate for public office in a
nonpartisan election, is subject to the same prohibitions as other
employees covered under this subpart.
Example 1: An employee who is married to a candidate for partisan
political office may attend a fundraiser for his or her spouse, stand in
the receiving line, sit at the head table, and urge others to vote for
his or her spouse. However, the employee may not personally solicit,
accept, or receive contributions of money or the paid or unpaid services
of a business or corporation, or sell or collect money for tickets to
the fundraiser.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier. She may distribute fliers at a campaign
rally as long as she does not personally solicit contributions.
Example 3: An employee who is married to a candidate for political
partisan political office may appear with her spouse in a political
advertisement or a broadcast, and urge others to vote for her spouse, as
long as the employee does not personally solicit political
contributions.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Subpart D--Employees in Certain Agencies and Positions
Sec. 734.401 Coverage.
(a) This subpart applies to employees in the following agencies and
positions:
(1) The Federal Election Commission;
(2) The Federal Bureau of Investigation;
(3) The Secret Service;
(4) The Central Intelligence Agency;
(5) The National Security Council;
(6) The National Security Agency;
(7) The Defense Intelligence Agency;
(8) The Merit Systems Protection Board;
(9) The Office of Special Counsel;
(10) The Office of Criminal Investigation of the Internal Revenue
Service.
(11) The Office of Investigative Programs of the United States
Customs Service;
(12) The Office of Law Enforcement of the Bureau of Alcohol,
Tobacco, and Firearms;
(13) The Criminal Division of the Department of Justice;
(14) The Central Imagery Office;
(15) Career Senior Executive Service positions described in 5 U.S.C.
3132(a)(4);
(16) Administrative Law Judge positions described in 5 U.S.C. 5372;
(17) Contract Appeals Board Member positions described in 5 U.S.C.
5372a.
(b) Employees appointed by the President by and with the advice and
consent of the Senate in the agencies and positions described in
paragraph
[[Page 49]]
(a) of this section are excluded from coverage under this subpart.
(c) All employees covered under this subpart are free to engage in
political activity to the widest extent consistent with the restrictions
imposed by law and this subpart.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.402 Expression of an employee's individual opinion.
Each employee covered under this subpart retains the right to
participate in any of the following political activities, as long as
such activity is not performed in concert with a political party,
partisan political group, or a candidate for partisan political office:
(a) Express his or her opinion as an individual privately and
publicly on political subjects and candidates;
(b) Display a political picture, sign, sticker, badge, or button, as
long as these items are displayed in accordance with the provisions of
Sec. 734.406;
(c) Sign a political petition as an individual;
(d) Be politically active in connection with a question which is not
specifically identified with a political party, such as a constitutional
amendment, referendum, approval of a municipal ordinance, or any other
question or issue of a similar character; and
(e) Otherwise participate fully in public affairs, except as
prohibited by other Federal law, in a manner which does not compromise
his or her efficiency or integrity as an employee or the neutrality,
efficiency, or integrity of the agency or instrumentality of the United
States Government in which he or she is employed.
Example 1: An employee may purchase air time on a radio or
television station to endorse a partisan political candidate. However,
he or she may not endorse such a candidate in a commercial or program
which is sponsored by the candidate's campaign committee, a political
party, or a partisan political group.
Example 2: An employee may address a political convention or rally
but not on behalf, or at the request of, a political party, partisan
political group, or an individual who is running for the nomination or
as a candidate for election to partisan political office.
Example 3: An employee may print at her own expense one thousand
fliers which state her personal opinion that a partisan political
candidate is the best suited for the job. She may distribute the fliers
at a shopping mall on the weekend. However, she may not distribute
fliers printed by the candidate's campaign committee, a political party,
or a partisan political group.
Example 4: An employee may place in his or her yard a sign
supporting a candidate for partisan political office.
Example 5: An employee may stand outside of a political party
convention with a homemade sign which states his or her individual
opinion that one of the candidates for nomination is the best qualified
candidate.
Example 6: An employee, including a career SES employee, may wear a
button with a partisan political theme when the employee is not on duty
or at his or her place of work.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35101, July 5, 1996]
Sec. 734.403 Participation in elections.
Each employee covered under this subpart retains the right to:
(a) Register and vote in any election;
(b) Take an active part, as a candidate or in support of a
candidate, in a nonpartisan election; and
(c) Serve as an election judge or clerk, or in a similar position,
to perform nonpartisan duties as prescribed by State or local law.
Sec. 734.404 Participation in political organizations.
(a) Each employee covered under this subpart retains the right to:
(1) Participate in the nonpartisan activities of a civic, community,
social, labor, or professional organization, or of a similar
organization;
(2) Be a member of a political party or other partisan political
group and participate in its activities to the extent consistent with
other Federal law;
(3) Attend a political convention, rally, fund-raising function, or
other political gathering; and
(4) Make a financial contribution to a political party, partisan
political group, or to the campaign committee of a candidate for
partisan political office.
(b) Subject to the provisions in Sec. 734.406, an employee covered
under this subpart may make a financial contribution to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this chapter if the head of the employee's agency
permits agency employees to make
[[Page 50]]
such allotments to political action committees.
(c) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under Sec. 550.311(b) of this chapter.
Example 1: An employee, or a noncareer SES employee who is subject
to subpart D of part 734, may attend a political convention or rally
solely as a spectator. However, the employee and noncareer SES employee
may not participate in demonstrations or parades which are sponsored by
a political party, a partisan political group, or an individual who is
running for nomination to be a candidate for partisan political office.
Example 2: An employee may attend a political party's annual
barbecue, but he or she may not organize, distribute invitations to, or
sell tickets to the barbecue.
Example 3: An employee who desires to contribute to a political
action committee through an allotment personally may obtain blank direct
deposit forms from his or her payroll office. The employee may not
complete the direct deposit form while he or she is on duty, on Federal
property, or in a Federally owned or leased vehicle. The employee also
may not personally deliver his or her completed direct deposit form, or
the completed direct deposit form of another employee, to his or her
payroll office. However, the employee may mail the completed form to his
or her agency payroll office.
[61 FR 35101, July 5, 1996]
Sec. 734.405 Campaigning for a spouse or family member.
An employee covered under this subpart who is the spouse or family
member of either a candidate for partisan political office, or a
candidate for political party office, may appear in photographs of the
candidate's family which might appear in a political advertisement, a
broadcast, campaign literature, or similar material. A spouse or a
family member who is covered by the Hatch Act Reform Amendments also may
attend political functions with the candidate. However, the spouse or
family member may not distribute campaign literature or solicit, accept,
or receive political contributions.
Example 1: An employee who is the spouse of a candidate for partisan
political office may stand in the receiving line and sit at the head
table during a political dinner honoring the spouse.
Example 2: An employee who is the daughter of a candidate for
partisan political office may appear in a family photograph which is
printed in a campaign flier, but she may not distribute the flier at a
campaign rally.
Sec. 734.406 Participation in political activities while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle; prohibition.
(a) An employee covered under this subpart may not participate in
political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the employing agency or instrumentality or the position of
the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately owned vehicle in the discharge of official duties.
(b) [Reserved]
Example 1: An employee who uses his or her privately owned vehicle
on a recurrent basis for official business may place a bumper sticker on
the vehicle, as long as he or she covers the bumper sticker while the
vehicle is being used for official duties.
Example 2: An employee who uses his or her privately owned vehicle
on official business, must cover any partisan political bumper sticker
while the vehicle is being used for official duties, if the vehicle is
clearly identified as being on official business.
Example 3: An employee or career SES employee who uses his or her
privately owned vehicle only on an occasional basis to drive to another
Federal agency for a meeting, or to take a training course, if not
required to cover a partisan political bumper sticker on his or her
vehicle.
Example 4: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 5: An employee may place a bumper sticker on his or her
privately owned vehicle and park the vehicle in a parking lot of an
agency or instrumentality of the United
[[Page 51]]
States Government or in a non-Federal facility for which the employee
receives a subsidy from his or her employing agency or instrumentality.
Example 6: An employee, or noncareer SES employee who is subject to
subpart D of this part 734, may not wear partisan political buttons or
display partisan political pictures, signs, stickers, or badges while he
or she is on duty or at his or her place of work.
Example 7: An employee who contributes financially to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit forms
while he or she is on duty, in a ``room or building'' defined in
Sec. 734.101, or in a Federally owned or leased vehicle.
Example 8: An employee who contributes financially to a political
action committee may not personally deliver his or her completed direct
deposit form, or the completed direct deposit form of another employee,
to the payroll employees who would process or administer such forms.
However, the employee may mail his or her direct deposit form to his or
her agency payroll office.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]
Sec. 734.407 Use of official authority; prohibition.
An employee covered under this subpart may not use his or her
official authority or influence for the purpose of interfering with or
affecting the result of an election.
Sec. 734.408 Participation in political management and political campaigning; prohibitions.
An employee covered under this subpart may not take an active part
in political management or in a political campaign, except as permitted
by subpart D of this part.
[61 FR 35102, July 5, 1996]
Sec. 734.409 Participation in political organizations; prohibitions.
An employee covered under this subpart may not:
(a) Serve as an officer of a political party, a member of a
national, State, or local committee of a political party, an officer or
member of a committee of a partisan political group, or be a candidate
for any of these positions;
(b) Organize or reorganize a political party organization or
partisan political group;
(c) Serve as a delegate, alternate, or proxy to a political party
convention; and
(d) Address a convention, caucus, rally, or similar gathering of a
political party or partisan political group in support of or in
opposition to a candidate for partisan political office or political
party office, if such address is done in concert with such a candidate,
political party, or partisan political group.
Sec. 734.410 Participation in political fundraising; prohibitions.
An employee covered under this subpart may not:
(a) Solicit, accept, or receive political contributions; or
(b) Organize, sell tickets to, promote, or actively participate in a
fundraising activity of a candidate for partisan political office or of
a political party, or partisan political group.
Sec. 734.411 Participation in political campaigning; prohibitions.
An employee covered under this subpart may not:
(a) Take an active part in managing the political campaign of a
candidate for partisan political office or a candidate for political
party office;
(b) Campaign for partisan political office;
(c) Canvass for votes in support of or in opposition to a candidate
for partisan political office or a candidate for political party office,
if such canvassing is done in concert with such a candidate, or of a
political party, or partisan political group;
(d) Endorse or oppose a candidate for partisan political office or a
candidate for political party office in a political advertisement,
broadcast, campaign literature, or similar material if such endorsement
or opposition is done in concert with such a candidate, political party,
or partisan political group;
(e) Initiate or circulate a partisan nominating petition.
Sec. 734.412 Participation in elections; prohibitions.
An employee covered under this subpart may not:
(a) Be a candidate for partisan political office;
[[Page 52]]
(b) Act as recorder, watcher, challenger, or similar officer at
polling places in concert with a political party, partisan political
group, or a candidate for partisan political office;
(c) Drive voters to polling places in concert with a political
party, partisan political group, or a candidate for partisan political
office.
[59 FR 48769, Sept. 23, 1994, as amended by 61 FR 35102, July 5, 1996]
Sec. 734.413 Employees of the Federal Election Commission; prohibitions.
(a) An employee of the Federal Election Commission may not request
or receive from, or give to, an employee, a Member of Congress, or an
officer of a uniformed service a political contribution.
(b) This section does not cover employee of the Federal Election
Commission who are appointed by the President by and with the advice and
consent of the Senate.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid from the Appropriation for the Executive Office of the
President
Sec. 734.501 Permitted and prohibited activities.
Except as otherwise specified in this part 734, employees who are
appointed by the President by and with the advice and consent of the
Senate are subject to the provisions of subparts B and C of this part.
Sec. 734.502 Participation in political activity while on duty, in uniform, in any room or building occupied in the discharge of official duties, or using a
Federal vehicle.
(a) This section applies to an employee:
(1) The duties and responsibilities of whose position continue
outside normal duty hours and while away from the normal duty post; and
(2) Who is--
(i) An employee paid from an appropriation for the Executive Office
of President; or
(ii) An employee appointed by the President by and with the advice
and consent of the Senate whose position is located within the United
States, who determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws;
(b) For the purposes of this subpart, normal duty hours and normal
duty post will be determined by the head of each agency or
instrumentality of the United States or District of Columbia Government.
(c) An employee described in paragraph (a) of this section may
participate, subject to any restrictions that may be imposed in
accordance with Sec. 734.104, in political activities:
(1) While he or she is on duty;
(2) While he or she is wearing a uniform, badge, or insignia that
identifies the agency or instrumentality of the United States Government
or the position of the employee;
(3) While he or she is in any room or building occupied in the
discharge of official duties by an individual employed or holding office
in the Government of the United States or any agency or instrumentality
thereof; or
(4) While using a Government-owned or leased vehicle or while using
a privately-owned vehicle in the discharge of official duties.
(d) An employee, to whom subpart E of this part does not apply, who
is not on duty may participate in political activities in rooms of the
White House or the Residence of the Vice President which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
Example 1: An Inspector General is appointed under the Inspector
General Act of 1978, as amended. According to section 3(c) of that Act,
he or she does not qualify as an employee who determines policies to be
pursued by the United States in the nationwide administration of Federal
laws. therefore, he or she may not participate in political activities
while on duty, while wearing a uniform, badge, or insignia that
identifies his or her office or position, while in any room or building
occupied in the discharge of official duties, or while using a
Government-owned or leased vehicle or while using a privately-owned
vehicle in the discharge of official duties.
[[Page 53]]
Example 2: An employee who is covered by this subpart and wears a
uniform as an incident of her office may wear the uniform while she is
giving a speech at a political fundraiser.
Example 3: The head of an executive department may hold a partisan
political meeting or host a reception which is not a fundraiser in his
conference room during normal business hours.
Example 4: An employee accompanies the Secretary of Transportation
to a political party convention as part of the Secretary's security or
administrative detail. The employee is considered to be on duty while
protecting or performing official duties for the Secretary regardless of
the nature of the function that the Secretary is attending.
Example 5: An American Ambassador overseas obtains authorization
from the Department of State to depart post in order to take a vacation
away from post. During the period she is authorized to be on vacation
away from post, she is not considered to be on duty for the purpose of
the Hatch Act Reform Amendments and may engage in any political activity
permitted under the Hatch Act Reform Amendments of 1993.
[59 FR 48769, Sept. 23, 1994, as amended at 61 FR 35102, July 5, 1996]
Sec. 734.503 Allocation and reimbursement of costs associated with political activities.
(a) The costs associated with the political activities described in
Sec. 733.502(c) of this chapter may not be paid for by money derived
from the Treasury of the United States. Costs associated with a
political activity are deemed not to be paid for by money derived from
the Treasury of the United States if the Treasury is reimbursed for the
costs within a reasonable period of time.
(b) For the purposes of this section, costs associated with a
political activity do not include any costs that the Government would
have or have incurred regardless of whether the activity was political.
Examples of such costs are:
(1) The compensation of the employee described in Sec. 734.502(a);
(2) The value of any office or other real property owned or leased
by the Government;
(3) The compensation and expenses of any Government employee that is
required in the performance of his or her duties to accompany or assist
the person engaging in the political activity; and
(4) The cost of special security arrangements for the person
engaging in the political activity, including special transportation
vehicles or methods.
(c) (1) An employee covered under this subpart must apportion the
costs of mixed travel based on the time spent on political activities
and the time spent performing official duties. Prorating the cost of
travel involves determining the ``total activity time'' which is the
amount of time actually spent by the employee in meetings, receptions,
rallies, and similar activities. Time spent in actual travel, private
study, or rest and recreation is not included in the computation of the
``total activity time''. The proration of the cost then is determined
based on how the ``total activity time'' was spent. The formula is as
follows:
Time spent in official meetings, receptions, etc. + Time spent in
political meetings, receptions, rallies = Total activity time
Time spent in official activity Total activity time =
Percentage of trip that is official
Time spent in political activity Total activity time =
Percentage of trip that is political
The percentage figure that represents the political portion of the trip
is then multiplied by the amount that would be reimbursed to the
Government if all of the travel was political. The product of that
calculation represents the amount to be paid by the political entity or
organization.
(2) The allocation method must be applied to all of the relevant
costs of mixed travel.
(3) Expenses that are associated specifically with a political
activity and not with any official activity must be treated as
political, and expenses associated specifically with an official
activity and not with any political activity must be treated as
official.
(4) In allocating the costs of travel other than air travel, the
allocation formula should be applied to any Government maximum for that
type of expenditure.
(5) The determination of the proper amount of allocation must be
based on the facts and circumstances involved.
[[Page 54]]
(6) In the event that a minor, clearly incidental percentage of the
activity of a mixed trip is devoted to either official or political
activity, e.g. less than 3%, the entire trip should be treated as if it
was wholly of the type represented by the substantial figure. The
balance should be treated as de minimis and need not be reimbursed as
political or charged as official.
(d) For any cost of a political activity of an employee that is
required to be reported to the Federal Election Commission under the
Federal Election Campaign Act (FECA) or the Presidential Election
Campaign Fund Act (PECFA), the employee shall use the same method of
allocation as used under the FECA or PECFA and regulations thereunder in
lieu of the allocation method in paragraph (c) of this section.
Example 1: The Secretary, an employee described by section
7324(b)(2) of title 5 of the United States Code, holds a catered
political activity (other than a fundraiser) in her office. Her security
detail attends the reception as part of their duty to provide security
for her. The Secretary will not be in violation of the Hatch Act Reform
Amendments if the costs of her office, her compensation, and her
security detail are not reimbursed to the Treasury. A violation of the
Hatch Act Amendments occurs if Government funds, including reception or
discretionary funds, are used to cater the political activity, unless
the Treasury is reimbursed for the cost of the catering within a
reasonable time.
Example 2: There should be no allocation between official and
political funds for a sound system rented for a single event.
Example 3: If on a mixed trip a Government employee is only entitled
to $26 per diem for food on a wholly official trip and the trip is 50%
political and 50% official, the Government share would be 50% of $26,
not 50% of the actual amount spent.
Example 4: The President is transported by special motorcade to and
from the site of the political event. The expense of the motorcade is
for special security arrangements. Thus, it would not be a violation of
the Hatch Act Reform Amendments if the costs of the security
arrangements, including the cost of the motorcade, are not reimbursed to
the Treasury.
Sec. 734.504 Contributions to political action committees through voluntary payroll allotments prohibited.
An employee described in Sec. 734.502(a) may not financially
contribute to a political action committee through a voluntary allotment
made under Sec. 550.311(b) of this title.
[61 FR 35102, July 5, 1996]
Subpart F--Employees Who Work on An Irregular or Occasional Basis
Sec. 734.601 Employees who work on an irregular or occasional basis.
An employee who works on an irregular or occasional basis or is a
special Government employee as defined in 18 U.S.C. 202(a) is subject to
the provisions of the applicable subpart of this part when he or she is
on duty.
Example: An employee appointed to a special commission or task force
who does not have a regular tour of duty may run as a partisan political
candidate, but may actively campaign only when he or she is not on duty.
Subpart G--Related Statutes and Executive Orders
Sec. 734.701 General.
In addition to the provisions regulating political activity set
forth in subparts A through G of this part, there are a number of
statutes and Executive orders that establish standards to which the
political activity of an employee, a Federal labor organization, a
Federal employee organization, and a multicandidate political committee
must conform. The list set forth in Sec. 734.702 references some of the
more significant of those statutes. It is not comprehensive and includes
only references to statutes of general applicability.
Sec. 734.702 Related statutes and Executive orders.
(a) The prohibition against offering anything of value in
consideration of the use or promise of use of influence to procure
appointive office (18 U.S.C. 210).
(b) The prohibition against solicitation or acceptance of anything
of value to obtain public office for another (18 U.S.C. 211).
(c) The prohibition against intimidating, threatening, or coercing
voters in Federal elections (18 U.S.C. 594).
[[Page 55]]
(d) The prohibition against use of official authority to interfere
with a Federal election by a person employed in any administrative
position by the United States in connection with any activity financed
in whole or in part by Federal funds (18 U.S.C. 595).
(e) The prohibition against the promise of employment, compensation,
or benefits from Federal funds in exchange for political activity (18
U.S.C. 600).
(f) The prohibition against the deprivation of or threat of
deprivation of employment in exchange for political contributions (18
U.S.C. 601).
(g) The prohibition against soliciting political contributions (18
U.S.C. 602).
(h) The prohibition against making certain political contributions
(18 U.S.C. 603).
(i) The prohibition against soliciting or receiving assessments,
subscriptions, or contributions for political purposes from persons on
Federal relief or work relief (18 U.S.C. 604).
(j) The prohibition against disclosing and receiving lists or names
of persons on relief for political purposes (18 U.S.C. 605).
(k) The prohibition against intimidating employees to give or
withhold a political contribution (18 U.S.C. 606).
(l) The prohibition against soliciting political contributions in
navy yards, forts, or arsenals (18 U.S.C. 607).
(m) The prohibition against coercing employees of the Federal
Government to engage in, or not to engage in, any political activity (18
U.S.C. 610).
(n) The prohibition against certain personnel practices (5 U.S.C.
2302).
(o) The prohibition against making, requesting, considering, or
accepting political recommendations (5 U.S.C. 3303).
(p) The prohibitions against misuse of a Government vehicle (31
U.S.C. 1344).
(q) The requirements and prohibitions stated in the Federal Election
Campaign Act (2 U.S.C. 431-455).
(r) The prohibitions against soliciting for gifts to superiors,
giving donations for such gifts, and accepting gifts from employees who
receive a lower rate of pay (5 U.S.C. 7351).
(s) The prohibitions against soliciting or accepting things of value
from specified persons (5 U.S.C. 7353).
(t) The prohibitions and requirements stated in the Ethics in
Government Act of 1978 (5 U.S.C. App.) and Executive Order 12674 (54 FR
15159-15162; 3 CFR 1989 Comp. 215-218) as modified by Executive Order
12731 (55 FR 42547-42550; 3 CFR 1990 Comp. 306-311).
PART 735--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Note: Part 1001 added to this chapter at 31 FR 873, January 22, 1966
and revised at 32 FR 11113, Aug. 1, 1967, 36 FR 6874, Apr. 9, 1971 and
61 FR 36996, July 16, 1996, supplement this part 735.
Subpart A--General Provisions
Sec.
735.101 Definitions.
735.102 Disciplinary action.
735.103 Other regulations pertaining to conduct.
Subpart B--Standards of Conduct
735.201 Gambling.
735.202 Safeguarding the examination process.
735.203 Conduct prejudicial to the Government.
Authority: 5 U.S.C. 7301; E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306.
Source: 57 FR 56434, Nov. 30, 1992, unless otherwise noted.
Subpart A--General Provisions
Sec. 735.101 Definitions.
In this part:
Agency means an Executive agency (other than the General Accounting
Office) as defined by 5 U.S.C. 105, the Postal Service, and the Postal
Rate Commission.
Employee means any officer or employee of an agency, including a
special Government employee, but does not include a member of the
uniformed services.
Special Government employee means a ``special Government employee,''
as defined in 18 U.S.C. 202, who is employed in the executive branch,
but does not
[[Page 56]]
include a member of the uniformed services.
Uniformed services has the meaning given that term by 5 U.S.C.
2101(3).
Sec. 735.102 Disciplinary action.
An employee's violation of any of the regulations in subpart B of
this part may be cause for disciplinary action by the employee's agency,
which may be in addition to any penalty prescribed by law.
Sec. 735.103 Other regulations pertaining to conduct.
In addition to the standards of conduct in subpart B of this part,
an employee shall comply with the standards of ethical conduct in 5 CFR
part 2635, as well as any supplemental regulation issued by the
employee's agency under 5 CFR 2635.105. An employee's violation of those
regulations may be cause for the employee's agency to take disciplinary
action, or corrective action as that term is used in 5 CFR part 2635.
Such disciplinary action or corrective action may be in addition to any
penalty prescribed by law.
Subpart B--Standards of Conduct
Sec. 735.201 Gambling.
(a) While on Government-owned or leased property or while on duty
for the Government, an employee shall not conduct, or participate in,
any gambling activity including the operation of a gambling device,
conducting a lottery or pool, a game for money or property, or selling
or purchasing a numbers slip or ticket.
(b) This section does not preclude activities:
(1) Necessitated by an employee's official duties; or
(2) Under section 7 of Executive Order 12353 and similar agency-
approved activities.
Sec. 735.202 Safeguarding the examination process.
(a) An employee shall not, either for or without compensation,
engage in teaching, lecturing, or writing for the purpose of the
preparation of a person or class of persons for an examination of the
Office of Personnel Management or Board of Examiners for the Foreign
Service that depends on information obtained as a result of the
employee's Government employment.
(b) This section does not preclude the preparation described in
paragraph (a) of this section if:
(1) The information upon which the preparation is based has been
made available to the general public or will be made available on
request; or
(2) Such preparation is authorized in writing by the Director of the
Office of Personnel Management or his or her designee, or by the
Director General of the Foreign Service of his or her designee, as
applicable.
Sec. 735.203 Conduct prejudicial to the Government.
An employee shall not engage in criminal, infamous, dishonest,
immoral, or notoriously disgraceful conduct, or other conduct
prejudicial to the Government.
PART 736--PERSONNEL INVESTIGATIONS--Table of Contents
Subpart A--Scope
Sec.
736.101 Purpose and definitions.
736.102 Notice to investigative sources.
736.103 Protecting the identity of a source.
736.104 Public availability of investigative files.
Subpart B--Investigative Requirements
736.201 Responsibilities of OPM and other Federal agencies.
Authority: Pub. L. 93-579; (5 U.S.C. 552a).
Source: 56 FR 18655, Apr. 23, 1991, unless otherwise noted.
Subpart A--Scope
Sec. 736.101 Purpose and definitions.
(a) Purpose. The purpose of this part is to specify certain
requirements for personnel investigations conducted by OPM, and for
those conducted under delegated authority from OPM. The requirements of
this part apply to suitability and national security investigations
conducted under parts 731 and 732 of this chapter; they also apply to
investigations to determine eligibility or qualifications not covered in
parts 731
[[Page 57]]
and 732 of this chapter. The requirements of this part apply to
employees in the civil service of the Executive Branch and to persons
performing contract, voluntary or indirect services for the Federal
Government, as set forth in subsection (b) below.
(b) Definitions. For the purposes of this part, (1) Federal
employment includes the following range of services performed for the
Federal government: (i) All employment in the competitive or excepted
service or the Senior Executive Service in the Executive Branch; (ii)
appointments, salaried or unsalaried, to Federal Advisory Committees or
to membership agencies; (iii) cooperative work assignments in which the
individual has access to Federal materials such as examination booklets,
or performs service for, or under supervision of, a Federal agency while
being paid by another organization such as a State or local government;
(iv) volunteer arrangements in which the individual performs service
for, or under the supervision of, a Federal agency; and (v) volunteer or
other arrangements in which the individual represents the United States
Government or any agency thereof.
(2) Agency means any authority of the Government of the United
States, whether or not it is within or subject to review by another
agency, and includes any executive department, military department,
Government corporation, Government-controlled corporation, or other
establishment in the executive branch of the Government, or any
independent regulatory agency.
(3) Personnel investigation means an investigation conducted by
written or telephone inquiries or through personal contacts to determine
the suitability, eligibility, or qualifications of individuals for
Federal employment, for work on Federal contracts, or for access to
classified information or restricted areas.
Sec. 736.102 Notice to investigative sources.
(a) The agency investigator will notify the source from whom
information is requested, whether in person or by telephone, of the
purpose for which the information is being sought and of the uses that
may be made of the information. The interviewing agent must notify each
person interviewed and each custodian of records contacted that all
information provided, including the record source's identity, may be
disclosed upon the request of the subject of the investigation.
(b) The interviewing agent may grant a pledge to keep confidential
the identity of an information source upon specific request by the
source. In addition, the agent has discretion to offer the source a
pledge of confidentiality where the agent believes that such a pledge is
necessary to obtain information pertinent to the investigation. A pledge
of confidentiality may not be assumed by the source. The interviewing
agent may not suggest to a source that the source request
confidentiality.
(c) Where information is requested by written inquiry, the form,
instructions, or correspondence used by an agency will include: (1)
Notification that all information furnished by the source, including the
source's identity, except for custodians of law enforcement or
educational records, may be disclosed upon the request of the subject of
the investigation; and (2) Space for the information source to request a
pledge that the source's identity will not be disclosed to the subject
of the investigation; or (3) An offer to make special arrangements to
obtain significant information which the source feels unable to furnish
without a promise that the source's identity will be kept confidential.
(d) A pledge of confidentiality, if granted, extends only to the
identity of the source, and to any information furnished by the source
that would reveal the identity of the source.
Sec. 736.103 Protecting the identity of a source.
When a source is granted a promise that the source's identity will
be kept confidential, the investigative agency and all other agencies
that receive information obtained under the promise are required to take
all reasonable precautions to protect the source's identity. Each agency
will prepare for its investigators and agents implementing instructions
consistent with this part.
[[Page 58]]
Sec. 736.104 Public availability of investigative files.
(a) Investigative files are records subject to the Privacy Act and
the Freedom of Information Act and are made available to requesters in
accordance with the provisions of those Acts.
(b) Requests for investigative records are to be submitted to the
Office of Personnel Management, Federal Investigations Processing
Center, FOI/PA, Boyers, Pennsylvania 16018.
Subpart B--Investigative Requirements
Sec. 736.201 Responsibilities of OPM and other Federal agencies.
(a) Unless provided otherwise by law, the investigation of persons
entering or employed in the competitive service, or by career
appointment in the Senior Executive Service, is the responsibility of
OPM.
(b) Requests for delegated investigating authority. Agencies may
request delegated authority from OPM to conduct or contract out
investigations of persons entering or employed in the competitive
service or by career appointment in the Senior Executive Service. Such
requests shall be made in writing by agency heads, or designees, and
specify the reason(s) for the request.
(c) Timing of investigations. Investigations required for positions
must be initiated within 14 days of placement in the position except
for: Positions designated Critical-Sensitive under part 732 of this
chapter must be completed preplacement, or post-placement with approval
of a waiver in accordance with Sec. 732.202(a) of this chapter; and for
positions designated Special-Sensitive under part 732 of this chapter
must be completed preplacement.
PART 752--ADVERSE ACTIONS--Table of Contents
Subpart A--Principal Statutory Requirements for Suspension for 14 Days
or Less
Sec.
752.101 Principal statutory requirements.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--Principal Statutory Requirements for Removal, Suspension for
More Than 14 Days, Reduction In Grade or Pay, or Furlough for 30 Days or
Less
752.301 Principal statutory requirements.
Subpart D--Regulatory Requirements for Removal, Suspension for More Than
14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
Subpart E--Principal Statutory Requirements for Taking Adverse Actions
Under the Senior Executive Service
752.501 Principal statutory requirements.
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
Authority: 5 U.S.C. 7504, 7514, and 7543.
Source: 45 FR 46778, July 11, 1980, unless otherwise noted.
Subpart A--Principal Statutory Requirements for Suspension for 14 Days
or Less
Sec. 752.101 Principal statutory requirements.
This subpart incorporates the principal statutory requirements for
suspensions for 14 days or less, found in subchapter II of chapter 75 of
title 5, United States Code.
[[Page 59]]
CHAPTER 75--ADVERSE ACTIONS
Subchapter I--Suspension for 14 Days or Less
Sec. 7501. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an individual in the competitive service who
is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous employment
in the same or similar positions under other than a temporary
appointment limited to 1 year or less; and
(2) ``suspension'' means the placing of an employee, for
disciplinary reasons, in a temporary status without duties and pay.
Sec. 7502. Actions covered
This subchapter applies to a suspension for 14 days or less, but
does not apply to a suspension under section 7521 or 7532 of this title
or any action initiated under section 1206 of this title.
Sec. 7503. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an employee may be suspended for 14 days or less for such
cause as will promote the efficiency of the service (including
discourteous conduct to the public confirmed by an immediate
supervisor's report of four such instances within any one-year period or
any other pattern of discourteous conduct).
(b) An employee against whom a suspension for 14 days or less is
proposed is entitled to--
(1) an advance written notice stating the specific reasons for the
proposed action;
(2) a reasonable time to answer orally and in writing and to furnish
affidavits and other documentary evidence in support of the answer;
(3) be represented by an attorney or other representative; and
(4) a written decision and the specific reasons therefor at the
earliest practicable date.
(c) Copies of the notice of proposed action, the answer of the
employee if written, a summary thereof if made orally, the notice of
decision and reasons therefor, and any order effecting the suspension,
together with any supporting material, shall be maintained by the agency
and shall be furnished to the Merit Systems Protection Board upon its
request and to the employee affected upon the employee's request.
Sec. 7504. Regulations
The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec. 752.201 Coverage.
(a) Actions covered. This subpart covers suspension for 14 days or
less.
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completd a
probationary or trial period;
(2) An employee in the competitive service serving in an appointment
which requires no probationary or trial period, and who has completed 1
year of current continuous employment in the same or similar positions
under other than a temporary appointment limited to 1 year or less;
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter;
(4) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and still occupies that position;
(5) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(6) An employee of the Government Printing Office.
(c) Exclusions. This subpart does not apply to a suspension for 14
days or less:
(1) Of an administrative law judge under 5 U.S.C. 7521;
(2) Taken for national security reasons under 5 U.S.C. 7531;
(3) Taken under a provision of statute, other than one codified in 5
U.S. Code, which excepts the action from subchapter I, chapter 75 of
title 5, U.S. Code;
(4) Of a reemployed annuitant; or
(5) Of a National Guard Technician.
(d) Definitions. In this subpart--
(1) Day means a calendar day.
(2) Current continuous employment means a period of employment
immediately preceding a suspension action in the same or similar
positions without a break in Federal civilian employment of a workday.
(3) Similar positions mean positions in which the duties performed
are similar in nature and character and require
[[Page 60]]
substantially the same or similar qualifications, so that the incumbent
could be interchanged between the positions without significant training
or undue interruption to the work.
(4) Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
[45 FR 46778, July 11, 1980, as amended at 46 FR 12191, Feb. 13, 1981;
53 FR 21622, June 9, 1988; 57 FR 20043, May 11, 1992; 58 FR 13192, Mar.
10, 1993]
Sec. 752.202 Standard for action.
(a) An agency may take action under this subpart only as set forth
in 5 U.S.C. 7503(a).
(b) An agency may not take a suspension against an employee on the
basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.203 Procedures.
(a) Employee entitlements. An employee under this subpart whose
suspension is proposed under this subpart is entitled to the procedures
provided in 5 U.S.C. 7503(b).
(b) Notice of proposed action. The notice of proposal shall inform
the employee of his or her right to review the material which is relied
on to support the reasons for action given in the notice.
(c) Time to answer. The employee shall be given a reasonable time to
answer but not less than 24 hours.
(d) Representation. Section 7503(b)(3) of title 5 of the United
States Code provides that an employee covered by this part whose
suspension is proposed in entitled to be represented during the action
by an attorney or other representative. An agency may disallow as an
employee's representative an individual whose activities as a
representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(e) Agency decision. In arriving at its written decision, the agency
shall consider only the reasons specified in the notice of proposed
action and shall consider any answer of the empoloyee and/or his or her
representative made to a designated official. The agency shall deliver
the notice of decision to the employee at or before the time the action
will be effective.
(f) Grievances. The employee may file a grievance through an agency
administrative grievance system (if applicable) or, if the suspension
falls within the coverage of an applicable negotiated grievance
procedure, an employee in an exclusive bargaining unit may file a
grievance only under that procedure. Sections 7114(a)(5) and 7121(b)(3)
of title 5 U.S.C., and the terms of any collective bargaining agreement,
govern representation for employees in an exclusive bargaining unit who
grieve a suspension under this subpart through the negotiated grievance
procedure.
(g) Agency records. The agency shall maintain copies of the items
specified in 5 U.S.C. 7503(c) and shall furnish them upon request as
required by that subsection.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21622, June 9, 1988; 60
FR 47040, Sept. 11, 1995]
Subpart C--Principal Statutory Requirements for Removal, Suspension for
More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
Sec. 752.301 Principal statutory requirements.
This subpart incorporates the principal statutory requirements in
subchapter II of chapter 75 of title 5, United States Code, for removal,
suspension for more than 14 days, reduction in grade or pay, or furlough
for 30 days or less.
CHAPTER 75--ADVERSE ACTIONS
Subchapter II--Removal Suspension for More Than 14 Days, Reduction in
Grade or Pay, or Furlough for 30 Days or Less
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) An individual in the competitive service--
(i) who is not serving a probationary or trial period under an
initial appointment; or
[[Page 61]]
(ii) who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service who has completed
1 year of current continuous service in the same or similar positions--
(i) in an executive agency; or
(ii) in the United States Postal Service or Postal Rate Commission;
and
(C) an individual in the excepted service other than a preference
eligible--
(i) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the
same or similar positions in an executive agency under other than a
temporary appointment limited to 2 years or less;
(2) ``suspension'' has the meaning as set forth in section 7501(2)
of this title;
(3) ``grade'' means a level of classification under a position
classification system;
(4) ``pay'' means the rate of basic pay fixed by law or
administrative action for the position held by an employee; and
(5) ``furlough'' means the placing of an employee in a temporary
status without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
(b) This subchapter does not apply to an employee--
(1) whose appointment is made by and with the advice and consent of
the Senate;
(2) whose position has been determined to be of a confidential,
policy-determining, policy-making or policy-advocating character by--
(A) the President for a position that the President has excepted
from the competitive service;
(B) the Office of Personnel Management for a position that the
Office has excepted from the competitive service; or
(C) the President or the head of an agency for a position excepted
from the competitive service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil Service Retirement
and Disability Fund, or the Foreign Service Retirement and Disability
Fund, based on the service of such employee;
(5) who is described in section 8337(h)(1), relating to technicians
in the National Guard;
(6) who is a member of the Foreign Service, as described in section
103 of the Foreign Service Act of 1980;
(7) Whose position is within the Central Intelligence Agency or the
General Accounting Office;
(8) Whose position is within the United States Postal Service, the
Postal Rate Commission, the Panama Canal Commission, the Tennessee
Valley Authority, the Federal Bureau of Investigation, the National
Security Agency, the Defense Intelligence, Agency, or an intelligence
activity of a military department covered under section 1590 of title
10, unless subsection (a)(1)(B) of this section or section 1005(a) of
title 39 is the basis for this subchapter's applicability;
(9) Who is described in section 5102(c)(11) of this title; or
(10) Who holds a position with the Veterans Health Administration
which has been excluded from the competitive service by or under a
provision of title 38, unless such employee was appointed to such
position under section 7401(3) of such title.
(c) The Office may provide for the application of this subchapter to
any position or group of positions excepted from the competitive service
by regulations of the Office which is not otherwise covered by this
subchapter.
Sec. 7512. Actions covered
This Subchapter applies to--
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less;
but does not apply to--
(A) a suspension or removal under section 7532 of this title,
(B) a reduction-in-force action under section 3502 of this title,
(C) the reducation in grade of a supervisor or manager who has not
completed the probationary period under section 3321(a)(2) of this title
if such reduction is to the grade held immediately before becoming such
a supervisor or manager,
(D) a reduction in grade or removal under section 4303 of this
title, or
(E) an action initiated under section 1206 or 7521 of this title.
Sec. 7513. Cause and procedure
(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this subchapter
against an employee only for such cause as will promote the efficiency
of the service.
(b) An employee against whom an action is proposed is entitled to--
(1) at least 30 days' advance written notice, unless there is
reasonable cause to believe the employee has committed a crime for which
a sentence of imprisonment may be imposed, stating the specific reasons
for the proposed action;
a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in
support of the answer;
[[Page 62]]
(3) be represented by an attorney or other representative, and
(4) a written decision and the specific reasons therefore at the
earliest practicable date.
(c) An agency may provide, by regulation, for a hearing which may be
in lieu of or in addition to the opportunity to answer provided under
subsection (b)(2) of this section.
(d) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701 of this title.
(e) Copies of the notice of proposed action, the answer of the
employee when written, a summary thereof when made orally, the notice of
decision and reasons therefor, and an order effecting an action covered
by this subchapter, together with any supporting material, shall be
maintained by the agency and shall be furnished to the Board upon its
request and to the employee affected upon the employee's request.
Sec. 7514. Regulations
The Office of Personnel Management may prescribe regulations to
carry out the purpose of this subchapter, except as it concerns any
matter with respect to which the Merit Systems Protection Board may
prescribe regulations.
[45 FR 46778, July 11, 1980, as amended at 57 FR 20043, May 11, 1992; 58
FR 13192, Mar. 10, 1993]
Subpart D--Regulatory Requirements for Removal, Suspension for More Than
14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less
Sec. 752.401 Coverage.
(a) Adverse actions covered. This subpart applies to the following
actions:
(1) Removals;
(2) Suspensions for more than 14 days, including indefinite
suspensions;
(3) Reductions in grade;
(4) Reductions in pay; and
(5) Furloughs of 30 days or less.
(b) Actions excluded. This subpart does not apply to:
(1) An action imposed by the Merit Systems Protection Board under
the authority of 5 U.S.C. 1206;
(2) The reduction in grade of a supervisor or manager who has not
completed the probatinary period under 5 U.S.C. 3321(a)(2) if such a
reduction is to the grade held immediately before becoming a supervisor
or manager;
(3) A reduction-in-force action under 5 U.S.C. 3502;
(4) A reduction in grade or removal under 5 U.S.C. 4303;
(5) An action against an administrative law judge under 5 U.S.C.
7521;
(6) A suspension or removal under 5 U.S.C. 7532;
(7) Actions taken under provision of statute, other than one
codified in title 5, United States Code, which excepts the action from
subchapter II of chapter 75 of title 5, United States Code;
(8) Action that entitles an employee to grade retention under part
536 of this chapter, and an action to terminate this entitlement;
(9) A voluntary action by the employee;
(10) Action taken or directed by the Office of Personnel Management
under part 731 or part 754 of this chapter;
(11) Termination of appointment on the expiration date specified as
a basic condition of employment at the time the appointment was made;
(12) Action that terminates a temporary or term promotion and
returns the employee to the position from which temporarily promoted, or
to a different position of equivalent grade and pay, if the agency
informed the employee that it was to be of limited duration;
(13) Cancellation of a promotion to a position not classified prior
to the promotion;
(14) Placement of an employee serving on an intermittent or seasonal
basis in a temporary nonduty, nonpay status in accordance with
conditions established at the time of appointment; or
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary to law or regulation.
(c) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completed a
probationary or trial period;
(2) An employee in the competitive service serving in an appointment
that requires no probationary or trial period, and who has completed 1
year of current continuous service in the same or similar positions
under other than a temporary appointment limited to 1 year or less;
[[Page 63]]
(3) An employee in the excepted service who is a preference eligible
in an executive agency as defined at section 105 of title 5, United
States Code, the U.S. Postal Service, or the Postal Rate Commission and
who has completed 1 year of current continuous service in the same or
similar positions;
(4) A Postal Service employee covered by Public Law 100-90 who has
completed 1 year of current continuous service in the same or similar
positions and who is either a supervisory or management employee or an
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at section 105 of title, 5,
United States Code, and who has completed 2 years of current continuous
service in the same or similar positions under other than a temporary
appointment limited to 2 years or less;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter;
(7) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and who still occupies that position;
(8) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(9) An employee of the Government Printing Office.
(d) Employees excluded. This subpart does not apply to:
(1) An employee whose appointment is made by and with the advice and
consent of the Senate;
(2) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character by: the President for a position that the President has
excepted from the competitive service; the Office of Personnel
Management for a position that the Office has excepted from the
competitive service (Schedule C); or the President or the head of an
agency for a position excepted from the competitive service by statute;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) A technician in the National Guard described in section
8337(h)(1) of title 5, United States Code, who is employed under section
709(b) of title 32, United States Code;
(6) A Foreign Service member as described in section 103 of the
Foreign Service Act of 1980;
(7) An employee of the Central Intelligence Agency or the General
Accounting Office;
(8) An employee of the Veterans Health Administration (Department of
Veterans Affairs) in a position which has been excluded from the
competitive service by or under a provision of title 38, United States
Code, unless the employee was appointed to the position under section
7401(3) of title 5, United States Code;
(9) A nonpreference eligible employee with the U.S. Postal Service,
the Postal Rate Commission, the Panama Canal Commission, the Tennessee
Valley Authority, the Federal Bureau of Investigation, the National
Security Agency, the Defense Intelligence Agency, or an intelligence
activity of a military department covered under section 1590 of title
10, United States Code;
(10) An employee described in section 5102(c)(11) of title 5, United
States Code, who is an alien or noncitizen occupying a position outside
the United States;
(11) A nonpreference eligible employee serving a probationary or
trial period under an initial appointment in the excepted service
pending conversion to the competitive service; and
(12) An employee whose agency or position has been excluded from the
appointing provisions of title 5, United States Code, by separate
statutory authority in the absence of any provision to place the
employee within the coverage of chapter 75 of title 5, United States
Code.
[53 FR 21622, June 9, 1988, as amended at 58 FR 13192, Mar. 10, 1993]
Sec. 752.402 Definitions.
(a) Day means a calendar day.
(b) Current continuous employment means a period of employment or
service immediately preceding an adverse action in the same or similar
postions
[[Page 64]]
without a break in Federal civilian employment of a workday.
(c) Furlough means the placing of an employee in a temporary status
without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
(d) Grade means a level of classification under a position
classification system.
(e) Indefinite suspension means the placing of an employee in a
temporary status without duties and pay pending investigation, inquiry,
or further agency action. The indefinite suspension continues for an
indeterminate period of time and ends with the occurrence of the pending
conditions set forth in the notice of action which may include the
completion of any subsequent administrative action.
(f) Pay means the rate of basic pay fixed by law or administrative
action for the position held by the employee, that is, the rate of pay
before any deductions and exclusive of additional pay of any kind.
(g) Similar positions mean positions in which the duties performed
are similar in nature and character and require substantially the same
or similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue interruption
to the work.
(h) Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay for more than 14
days.
[53 FR 21623, June 9, 1988]
Sec. 752.403 Standard for action.
(a) An agency may take an adverse action, including a performance-
based adverse action, under this subpart only such cause as will promote
the efficiency of the service.
(b) An agency may not take an adverse action against an employee on
the basis of any reason prohibited by 5 U.S.C. 2302.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21623, June 9, 1988]
Sec. 752.404 Procedures.
(a) Statutory entitlements. An employee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7513(b).
(b) Notice of proposed action. (1) The notice of proposal shall
inform the employee of his or her right to review the material which is
relied on to support the reasons for action given in the notice. The
agency may not use material that cannot be disclosed to the employee of
his or her representative or designated physician under Sec. 297.204(c)
of this chapter to support the reasons in the notice.
(2) When some but not all employees in a given competitive level are
being furloughed, the notice of proposal shall state the basis for
selecting a particular employee for furlough, as well as the reasons for
the furlough.
(3) Under ordinary circumstances, an employee whose removal or
suspension, including indefinite suspension, has been proposed shall
remain in a duty status in his or her regular position during the
advance notice period. In those rare circumstances where the agency
determines that the employee's continued presence in the workplace
during the notice period may pose a threat to the employee or others,
result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, the agency may elect one or
a combination of the following alternatives:
(i) Assigning the employee to duties where he or she is no longer a
threat to safety, the agency mission, or to Government property;
(ii) Allowing the employee to take leave, or carrying him or her in
an appropriate leave status (annual, sick, leave without pay, or absence
without leave) if the employee has absented himself or herself from the
worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of Sec. 752.404(d)(1) of this part, the ``crime provision.''
This provision may be invoked even in the absence of judicial action if
the agency has reasonable cause to believe that the employee has
committed a crime for which a sentence of imprisonment may be imposed;
or
(iv) Placing the employee in a paid, nonduty status for such time as
is necessary to effect the action.
[[Page 65]]
(c) Employee's answer. (1) The agency shall give the employee a
reasonable amount of official time to review the material relied on to
support its proposal and to prepare an answer and to secure affidavits,
if he or she is otherwise in an active duty status.
(2) The agency shall designate an official to hear the employee's
oral answer who has authority either to make or recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides one in its regulations in
accordance with paragraph (g) of this section.
(3) If the employee wishes the agency to consider any medical
condition which may contribute to a conduct, performance, or leave
problem, the employee shall be given a reasonable time to furnish
medical documentation (as defined in Sec. 339.102 of this chapter) of
the condition. Whenever possible, the employee shall supply such
documentation within the time limits allowed for an answer. After its
review of the medical documentation supplied by the employee, the agency
may, if authorized, require a medical examination under the criteria of
Sec. 339.301(a)(3) and the procedures of Sec. 339.302 of this chapter,
or otherwise, at its option, offer a medical examination in accordance
with the criteria of Sec. 339.301(d) and procedures of Sec. 339.302 of
this chapter. If the employee has the requisite years of service under
the Civil Service Retirement System or the Federal Employees Retirement
System, the agency shall provide information concerning disability
retirement. The agency shall be aware of the affirmative obligations of
the provisions of 29 CFR 1613.704, which require reasonable
accommodation of a qualified employee who is handicapped.
(d) Exceptions. (1) Section 7513(b) of title 5 of the United States
Code authorizes an exception to the 30 days' advance written notice when
the agency has reasonable cause to believe that the employee has
committed a crime for which a sentence of imprisonment may be imposed
and is proposing a removal or suspension (including indefinite
suspension). The agency may require the employee to furnish any answer
to the proposed action, and affidavits and other documentary evidence in
support of the answer, within such time as would be reasonable, but not
less than 7 days. When the circumstances require that the employee be
kept away from the worksite, the agency may place him or her in a
nonduty status with pay for such time as is necessary to effect the
action.
(2) The advance written notice and opportunity to answer are not
necessary for furlough without pay due to unforeseeable circumstances,
such as sudden breakdowns in equipment, acts of God, or sudden
emergencies requiring immediate curtailment of activities.
(e) Representation. Section 7513(b)(3) of title 5 of the United
States Code provides that an employee covered by this part is entitled
to be represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or official position would
give rise to unreasonable costs or whose priority work assignments
preclude his or her release.
(f) Agency decision. In arriving at its decision, the agency shall
not consider any reasons for action other than those specified in the
notice of proposed action. It shall consider any answer of the employee
and/or his or her representative made to a designated official and any
medical documentation furnished under paragraph (c) of this section. The
agency shall deliver the notice of decision to the employee at or before
the time the action will be effective, and advise the employee of appeal
rights.
(g) Hearing. Under 5 U.S.C. 7513(c), the agency may in its
regulations provide a hearing in place of or in addition to the
opportunity for written and oral answer.
(h) Applications for disability retirement. Section 831.501(d) of
this chapter provides that an employee's application for disability
retirement shall not preclude or delay any other appropriate personnel
action. Section 831.1203 of this chapter sets forth the basis under
which an agency shall file
[[Page 66]]
an application for disability retirement on behalf of an employee.
[45 FR 46778, July 11, 1980, as amended at 48 FR 19349, Apr. 29, 1983;
48 FR 45526, Oct. 6, 1983; 49 FR 1330, Jan. 11, 1984; 53 FR 21623, June
9, 1988]
Sec. 752.405 Appeal and grievance rights.
(a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an
employee against whom an action is taken under this subpart is entitled
to appeal to the Merit Systems Protection Board.
(b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a
matter covered by this subpart falls within the coverage of an
applicable negotiated grievance procedure, and employee may elect to
file a grievance under that procedure or appeal to the Merit Systems
Protection Board under 5 U.S.C. 7701, but not both. 5 U.S.C. 7114(a)(5)
and 7121(b)(3), and the terms of an applicable collective bargaining
agreement, govern representation for employees in an exclusive
bargaining unit who grieve a matter under this subpart through the
negotiated grievance procedure.
[45 FR 46778, July 11, 1980, as amended at 53 FR 21624, June 9, 1988]
Sec. 752.406 Agency records.
The agency shall maintain copies of the items specified in 5 U.S.C.
7513(e) and shall furnish them upon request as required by that
subsection.
Subpart E--Principal Statutory Requirements for Taking Adverse Actions
Under the Senior Executive Service
Sec. 752.501 Principal statutory requirements.
This subpart sets forth for the benefit of the user the statutory
requirements of subchapter V of Chapter 75 for suspension for more than
14 days and removal from the civil service. (5 U.S.C. 7541-7543)
``Sec. 7541. Definitions
``For the purpose of this subchapter--
``(1) `employee' means a career appointee in the Senior Executive
Service who--
``(A) has completed the probationary period prescribed under section
3393(d) of this title; or
``(B) was covered by the provisions of subchapter II of this chapter
immediately before appointment to the Senior Executive Service; and
``(2) `suspension' as the meaning set forth in section 7501(2) of
this title.
``Sec. 7542. Actions covered
``This subchapter applies to a removal from the civil service or
suspension for more than 14 days, but does not apply to an action
initiated under section 1206 of this title, to a suspension or removal
under section 7532 of this title, or to a removal under section 3592 or
3595 of this title.
``Sec. 7543. Cause and procedure
``(a) Under regulations prescribed by the Office of Personnel
Management, an agency may take an action covered by this subchapter
against an employee only for misconduct, neglect of duty, malfeasance,
or failure to accept a directed reassignment or to accompany a position
in a transfer of function.
``(b) An employee against whom an action covered by this subchapter
is proposed is entitled to--
``(1) at least 30 days' advance written notice, unless there is
reasonable cause to believe that the employee has committed a crime for
which a sentence of imprisonment can be imposed, stating specific
reasons for the proposed action;
``(2) a reasonable time, but not less than 7 days, to answer orally
and in writing and to furnish affidavits and other documentary evidence
in support of the answer;
``(3) be represented by an attorney or other representative; and
``(4) a written decision and specific reasons therefor at the
earliest practicable date.
``(c) An agency may provide, by regulation, for a hearing which may
be in lieu of or in addition to the opportunity to answer provided under
subsection (b)(2) of this section.
``(d) An employee against whom an action is taken under this section
is entitled to appeal to the Merit Systems Protection Board under
section 7701 of this title.
``(e) Copies of the notice of proposed action, the answer of the
employee when written, and a summary thereof when made orally, the
notice of decision and reasons therefor, and any order effecting an
action covered by this subchapter, together with any supporting
material, shall be maintained by the agency and shall be furnished to
the Merit Systems Protection Board upon its request and to the employee
affected upon the employee's request.''.
[45 FR 46778, July 11, 1980, as amended at 52 FR 34624, Sept. 14, 1987]
[[Page 67]]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
Source: 52 FR 34624, Sept. 14, 1987, unless otherwise noted.
Sec. 752.601 Coverage.
(a) Adverse actions covered. This subpart applies to suspensions for
more than 14 days and removals from the civil service as set forth in 5
U.S.C. 7542.
(b) Actions excluded. (1) An agency may not take a suspension action
of 14 days or less.
(2) This subpart does not apply to actions taken under 5 U.S.C.
1206(g), 3592, 3595, or 7532.
(c) Employees covered. This subpart covers the following appointees:
(1) A career appointee--
(i) Who has completed the probationary period in the Senior
Executive Service;
(ii) Who is not required to serve a probationary period in the
Senior Executive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(2) A limited term or limited emergency appointee--
(i) Who received the limited appointment without a break in service
in the same agency as the one in which the employee held a career or
career-conditional appointment (or an appointment of equivalent tenure
as determined by the Office of Personnel Management) in a permanent
civil service position outside the Senior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(d) Employees excluded. This subpart does not cover an appointee who
is serving as a reemployed annuitant.
Sec. 752.602 Definitions.
In this subpart--
Career appointee, limited term appointee, and limited emergency
appointee have the meaning given in 5 U.S.C. 3132(a).
Day means calendar day.
Suspension has the meaning given in 5 U.S.C. 7501(2).
Sec. 752.603 Standard for action.
(a) An agency may take an adverse action under this subpart only for
reasons of misconduct, neglect of duty, malfeasance., or failure to
accept a directed reassignment or to accompany a position in a transfer
of function.
(b) An agency may not take an adverse action under this subpart on
the basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.604 Procedures.
(a) Applicability. The procedures provided in 5 U.S.C. 7543(b) apply
to any appointee covered by this subpart.
(b) Notice of proposed action. (1) The notice of proposed action
shall inform the appointee of his or her right to review the material
that is relied on to support the reasons for action given in the notice.
(2) The agency may not use material that cannot be disclosed to the
appointee or to the appointee's representative or designated physician
under Sec. 297.204(c) of this chapter to support the reasons in the
notice.
(3) Under ordinary circumstances, an appointee whose removal has
been proposed shall remain in a duty status in his or her regular
position during the advance notice period. In those rare circumstances
when the agency determines that the appointee's continued presence in
the work place during the notice period may pose a threat to the
appointee or others, result in loss of or damage to Government property,
or otherwise jeopardize legitimate Government interests, the agency
shall consider whether any of the following alternatives is feasible:
(i) Assigning the appointee to duties where he or she is no longer a
threat to safety, the agency mission, or Government property;
(ii) Placing the appointee on leave with his or her consent;
(iii) Carrying the appointee on appropriate leave (annual or sick
leave, leave without pay, or absence without leave) if he or she is
voluntarily absent for reasons not originating with the agency; or
[[Page 68]]
(iv) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d) of this section (the ``crime provision'').
(4) If none of the alternatives in paragraph (b)(3) of this section,
is available, agencies may consider placing the appointee in a paid,
nonduty status during all or part of the advance notice period.
(c) Appointee's answer. (1) The agency shall give the appointee a
reasonable amount of official time to review the material relied on to
support its proposed action, to prepare an answer orally and in writing,
and to secure affidavits, if the appointee is in an active duty status.
(2) The agency shall designate an official to hear the appointee's
oral answer who has authority either to make or to recommend a final
decision on the proposed adverse action.
(3) The right to answer orally in person does not include the right
to a formal hearing with examination of witnesses unless the agency
provides for a formal hearing in its regulations in accordance with
paragraph (g) of this section.
(4) If the appointee wishes the agency to consider any medical
condition that may have affected the basis for the adverse action, the
appointee shall be given reasonable time to furnish medical
documentation of the condition. The same procedures that are applicable
in Sec. 752.404(c)(3) of this chapter are also applicable for an
appointee in the Senior Executive Service.
(d) Exception. Section 7543(b)(1) of title 5 of the United States
Code authorizes an exception to the 30 days' advance written notice when
the crime provision is invoked. This provision may be invoked even in
the absence of judicial action if the agency has reasonable cause to
believe that the appointee has committed a crime for which a sentence of
imprisonment may be imposed. The agency may require the appointee to
furnish any answer to the proposed action, and affidavits and other
documentary evidence to support the answer, within such time as under
the circumstances would be reasonable, but not less than 7 days. When
the circumstances require immediate action, the agency may place the
appointee in a nonduty status with pay for such time as is necessary to
effect the action.
(e) Representation. (1) Under 5 U.S.C. 7543(b)(3), an appointee
covered by this subpart is entitled to be represented by an attorney or
other representative.
(2) An agency may disallow as an appointee's representative--
(i) An individual whose activities as a representative would cause a
conflict of interest or position;
(ii) An employee of the agency whose release from his or her
official position would give rise to unreasonable costs; or
(iii) An employee of the agency whose priority work assignments
preclude the employee's release.
(f) Agency decision. In arriving at its written decision, the agency
may consider only the reasons specified in the notice of proposed
action. The agency shall consider any reply of the appointee or the
appointee's representative made to a designated official and any medical
documentation furnished under paragraph (c) of this section. The agency
shall deliver the notice of decision to the appointee at or before the
time the action will be effective. The notice of decision shall inform
the appointee of his or her appeal rights.
(g) Hearing. Under 5 U.S.C. 7543(c), the agency may, in its
regulations, provide a hearing in place of or in addition to the
opportunity for written and oral reply.
Sec. 752.605 Appeal rights.
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an
action is taken under this subpart is entitled to appeal to the Merit
Systems Protection Board.
(b) A limited term or limited emergency appointee who is covered
under Sec. 752.601(c)(2) also may appeal an action taken under this
subpart to the Merit Systems Protection Board.
Sec. 752.606 Agency records.
The agency shall maintain copies of the adverse action record items
specified in 5 U.S.C. 7543(e) and furnish them upon request as required
by that subsection.
PART 754 [RESERVED]
[[Page 69]]
PART 771--AGENCY ADMINISTRATIVE GRIEVANCE SYSTEM--Table of Contents
Authority: 5 U.S.C. 1302, 3301, 3302, 7301; E.O. 9830, 3 CFR 1945-
1948 Comp., pp. 606-624; E.O. 11222, 3 CFR 1964-1969 Comp., p. 306.
Sec. 771.101 Continuation of Grievance Systems.
Each administrative grievance system in operation as of October 11,
1995, that has been established under former regulations under this part
must remain in effect until the system is either modified by the agency
or replaced with another dispute resolution process.
[60 FR 47040, Sept. 11, 1995]
PART 772--INTERIM RELIEF--Table of Contents
Subpart A--General
Sec.
772.101 Basic authority.
772.102 Interim personnel actions.
Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.
Source: 57 FR 3712, Jan. 31, 1992, unless otherwise noted.
Subpart A--General
Sec. 772.101 Basic authority.
This part establishes a mechanism for agencies to provide interim
relief to employees and applicants for employment who prevail in an
initial decision issued by the Merit Systems Protection Board (MSPB) as
required by the Whistleblower Protection Act of 1989, Pub. L. 101-12
(codified at 5 U.S.C. 7701(b)(2)(A)). The interim relief provisions of
the law are applicable whether or not alleged reprisal for
whistleblowing is at issue in an appeal to MSPB.
Sec. 772.102 Interim personnel actions.
When an employee or applicant for employment appeals an action to
MSPB and the appeal results in an initial decision by an MSPB
administrative judge granting interim relief under 5 U.S.C.
7701(b)(2)(A) and a petition for review of the initial decision is filed
(or will be filed) with the full Board under 5 U.S.C. 7701(e)(1)(A), the
agency shall provide the relief ordered in the initial decision by
taking an interim personnel action subject to the following terms:
(a) Interim personnel actions shall be made effective upon the date
of issuance of the initial decision and must be initiated on or before
the date of a petition for review by the agency or within a reasonable
period after the date it becomes aware of a petition for review by the
appellant;
(b) The relief provided by interim personnel actions shall end:
(1) When the full Board issues a final decision on a petition for
review filed by an applicant for employment, employee, and/or agency
under 5 U.S.C. 7701(e)(1)(A),
(2) When the initial decision becomes final pursuant to an action of
the full Board or pursuant to a decision by an applicant for employment,
employee, and/or agency to withdraw (or change intentions to file) any
petition for review filed under 5 U.S.C. 7701(e)(1)(A), or
(3) When the applicant for employment or employee requests or
reaches agreement with the agency that the interim relief ordered in the
initial decision be cancelled;
(c) Interim relief shall entitle the applicant for employment or
employee to the same compensation and benefits he or she would receive
if the relief effected had not been on an interim basis except as
provided in paragraph (f) of this section;
(d) An interim personnel action shall not be taken if the MSPB
administrative judge, pursuant to 5 U.S.C. 7701(b)(2)(A)(i), determines
that granting interim relief is not appropriate;
(e) An interim personnel action under this part shall not entitle
the applicant for employment or employee to an award of back pay or
attorney fees.
[57 FR 3712, Jan. 31, 1992, as amended at 59 FR 36353, July 18, 1994; 59
FR 65704, Dec. 21, 1994]
[[Page 70]]
PART 792--FEDERAL EMPLOYEES' HEALTH AND COUNSELING PROGRAMS--Table of Contents
Subpart A--Regulatory Requirements for Alcoholism and Drug Abuse
Programs and Services for Federal Civilian Employees
Sec.
792.101 Statutory requirements.
792.102 General.
792.103 Coverage.
792.104 Responsibilities of the Office of Personnel Management.
792.105 Agency responsibilities.
Subpart B--Agency Use of Appropriated Funds for Child Care Costs for
Lower Income Employees--What is the New Child Care Legislation and to
Whom Does It Apply?
792.200 To whom do ``we'', ``you'', and their variants apply?
792.201 What does the new law permit?
792.202 What is the purpose of the new law?
792.203 Should we notify anyone of our intention to initiate a program
and when can the obligation be made?
792.204 Are there sample memoranda and other documents available to
assist us with this process?
792.205 Are there additional materials necessary for the implementation
of this process and are there any special reporting and
oversight requirements related to this law?
792.206 What are the benefits to an agency of providing such assistance
to its lower income employees?
792.207 Which agency funds can be used for the purpose of this law?
792.208 Are agencies required to participate in this program?
792.209 How can agencies take advantage of this new law and when does
this law become effective?
792.210 What is the definition of Executive agency?
792.211 What is the definition of tuition assistance program?
792.212 What is the definition of civilian employee?
792.213 What is the definition of a Federally sponsored child care
center?
792.214 What is the definition of contractor?
792.215 What is the definition of a child?
792.216 What children are eligible for this subsidy?
792.217 What is a disabled child?
792.218 Are children enrolled in summer programs and part-time programs
eligible?
792.219 Are part-time Federal employees eligible?
792.220 Does the law apply only to on-site Federal child care centers
that are utilized by Federal families?
792.221 What is the process for helping lower income employees with
child care tuition?
792.222 Are agencies required to negotiate with their Federal labor
organizations about the provisions of this law?
792.223 Are there any conditions which the child care provider must
meet in order to participate in this program?
792.224 Is there a statutory cap on the amount or the percentage of
child care tuition that will be subsidized? or to an
organization that administers our program prior to the time
the employee receiving tuition assistance has enrolled his or
her child in the child care center or family child care home?
792.225 What is the definition of a lower income Federal employee and
how is the amount of the tuition assistance subsidy
determined?
792.226 Who determines if a Federal employee qualifies as a lower
income employee and how is the program administered?
792.227 Are child care subsidies paid to the Federal employee using the
child care?
792.228 May we disburse funds to a child care provider
792.229 How will the disbursement covered by Sec. 792.227 work where
there is a Federally sponsored child care center in a multi-
tenant building?
792.230 For how long will the tuition assistance be in effect for a
Federal employee?
792.231 Can these funds be used for children of Federal employees who
are already enrolled in child care?
792.232 Can we place special restrictions or requirements on the use of
these funds, and can we restrict the disbursement of such
funds to only one type of child care or to one location?
792.233 May we use the funds to improve the physical space of the
family child care homes or child care centers?
792.234 For how long is the law effective?
792.235 Who will oversee the disbursement and use of these funds?
Authority: Sec. 201 of Pub. L. 91-616, 84 Stat. 1849, as amended and
transferred to sec. 520 of the Public Health Services Act by sec. 2
(b)(13) of Pub. L. 98-24 (42 U.S.C. 290dd-1) and sec. 413 of Pub. L. 92-
255, 86 Stat. 84, as amended and transferred to sec. 525 of the Public
Health Service Act by sec. 2(b)(16)(A) of Pub. L. 98-24 (42 U.S. C.
290ee-l); Sec. 643, Pub. L. 106-58, 113 Stat. 477.
[[Page 71]]
Subpart A--Regulatory Requirements for Alcoholism and Drug Abuse
Programs and Services for Federal Civilian Employees
Sec. 792.101 Statutory requirements.
Sections 290dd-1 and 290ee-1 of 42 United States Code, provide that
the Office of Personnel Management shall be responsible for developing
and maintaining, in cooperation with the Secretary of the Department of
Health and Human Services, and with other Federal departments and
agencies, appropriate prevention, treatment, and rehabilitation programs
and services for Federal civilian employees with alcohol and/or drug
problems. To the extent feasible, agencies are encouraged to extend
services to families of alcohol and/or drug abusing employees and to
employees who have family members who have alcohol and/or drug problems.
Such programs and services shall make optimal use of existing government
facilities, services, and skills.
[50 FR 16692, Apr. 29, 1985]
Sec. 792.102 General.
It is the policy of the Federal Government to offer appropriate
prevention, treatment, and rehabilitation programs and services for
Federal civilian employees with alcohol and/or drug problems. Short-term
counseling and/or referral, or offers thereof, shall constitute the
appropriate prevention, treatment, and rehabilitation programs and
services for alcohol abuse, alcoholism, and/or drug abuse required under
42 U.S.C. 290dd-1(a) and 290ee-1(a). Federal departments and agencies
must establish programs to assist employees with these problems in
accordance with the legislation cited in Sec. 792.101.
[50 FR 16692, Apr. 29, 1985]
Sec. 792.103 Coverage.
This part applies to all positions in Executive agencies as defined
in section 105 of title 5 of the United States Code, and to those
positions in the legislative and judicial branch of the Federal
Government which are in the competitive service.
[49 FR 27921, July 9, 1984]
Sec. 792.104 Responsibilities of the Office of Personnel Management.
OPM shall provide overall leadership for the Government-wide
alcoholism and drug abuse program in cooperation with the Secretary of
Health and Human Services. To accomplish this, OPM shall develop and
issue policy and program guidance, provide technical assistance to
agencies, and determine the overall effectiveness of the Government-wide
program, as well as those programs at individual agencies, based on
program information required of agencies.
[49 FR 27921, July 9, 1984]
Sec. 792.105 Agency responsibilities.
(a) Agencies shall establish and administer programs through which
practitioners who are knowledgeable in counseling and referral services
can offer and provide employees who have alcohol and/or drug problems
short-term counseling and/or referrals for long-term counseling or
treatment.
(b) Agencies shall issue internal instructions implementing the
requirements of 42 U.S.C. 290dd-1(a) and 290ee-1(a) and this regulation.
(c) Whenever a manager/supervisor becomes aware that a Federal
employee's use of alcohol and/or drugs may be contributing to a
performance or conduct deficiency, the manager/supervisor shall
recommend counseling and refer the employee to the agency counseling
program. If an employee fails to participate in any rehabilitative
program or, having participated, the employee fails to bring conduct or
performance up to satisfactory level, the agency shall evaluate the
employee accordingly and initiate an appropriate performance-based or
adverse action.
(d) As requested, agencies shall annually submit a report to OPM on
their counseling activities for the past fiscal year at a time, and in a
manner, set by OPM.
[49 FR 27921, July 9, 1984, as amended at 50 FR 16692, Apr. 29, 1985]
[[Page 72]]
Subpart B--Agency Use of Appropriated Funds for Child Care Costs for
Lower income Employees--What Is the New Child Care Legislation and to
Whom Does It Apply?
Source: 65 FR 13660, Mar. 14, 2000, unless otherwise noted.
Sec. 792.200 To whom do ``we'', ``you'', and their variants apply?
Use of pronouns, ``we,'' ``you,'' and their variants throughout this
part refers to the agency. OPM is always referred to as ``OPM''.
Sec. 792.201 What does the new law permit?
Public Law 106-58 (113 Stat. 477) permits agencies to use
appropriated funds, including revolving funds, that are otherwise
available to the agency for salaries, to improve the affordability of
child care for lower income Federal employees. Employees can benefit
from reduced tuition rates at Federal child care centers, non-Federal
child care centers, and in family child care homes.
Sec. 792.202 What is the purpose of the new law?
The law is intended to make child care more affordable for lower
income Federal employees through the use of agency appropriated funds.
Sec. 792.203 Should we notify anyone of our intention to initiate a program and when can the obligation be made?
Yes, you must provide notice to the House Subcommittee on Treasury,
Postal Service and General Government and to the Senate Subcommittee on
Treasury and General Government and to your appropriations subcommittees
prior to the obligation of funds. This is a Congressional notification
requirement. You must also notify OPM of your intention. Funds can be
obligated immediately after notifications have occurred.
Sec. 792.204 Are there sample memoranda and other documents available to assist us with this process?
Yes, OPM will provide you with guidance that contains sample
memoranda of understanding, sample marketing tools, sample tuition
assistance applications, and models for determining tuition assistance
eligibility. These materials can be found in ``Guide for Implementing
Child Care Legislation--Pub. L. 106-58, Sec. 643.'' The Guide is
available on OPM's website, http://www.opm.gov/wrkfam. You may also
obtain a copy by writing to OPM at: U.S. Office of Personnel Management,
Family-Friendly Workplace Advocacy Office, 1900 E Street, NW., Room
7315, Washington, DC 20415.
Sec. 792.205 Are there additional materials necessary for the implementation of this process and are there any special reporting and oversight requirements
related to this law?
Yes, you are responsible for tracking the utilization of your funds
and reporting the results to OPM. OPM will provide you with a mandatory
reporting form. OPM is required to provide a report to the
appropriations committees no later than September 1, 2000. Therefore,
you are required to report your results to OPM no later than August 1,
2000. OPM will provide you with guidance on this subpart.
Sec. 792.206 What are the benefits to an agency of providing such assistance to its lower income employees?
There are several benefits for the agencies beginning with improved
recruitment and retention. Cost savings in recruitment and training can
be significant. In addition, absenteeism rates related to child care
problems can be reduced. Providing such subsidies can also increase
morale, particularly among families who cannot afford the child care
located at or near a child care center that is sponsored by their
agency. The use of funds for lower income families who are enrolled or
wish to enroll in Federal child care centers
[[Page 73]]
may help to increase the Federal participation rates where there is a
regulatory requirement that at least 50 percent of the children enrolled
have parents or guardians who are Federal employees.
Sec. 792.207 Which agency funds can be used for the purpose of this law?
You are permitted to use appropriated funds, including revolving
funds, that are otherwise available to the agency for salaries.
Sec. 792.208 Are agencies required to participate in this program?
Agencies are not required to participate in this program. The
decision to participate is left to the discretion of the agency. If an
agency chooses to participate, it may not use funds other than those
specified in Sec. 792.207.
Sec. 792.209 How can agencies take advantage of this new law and when does this law become effective?
The law became effective as of September 29, 1999. Agencies are
permitted to obligate funds beginning on March 14, 2000. Agencies can
take advantage of this new law by notifying Congress and OPM of their
intent.
Sec. 792.210 What is the definition of Executive agency?
The term Executive agency is defined by section 105 of title 5,
United States Code, but does not include the General Accounting Office.
Sec. 792.211 What is the definition of tuition assistance program?
The term tuition assistance program, for the purposes of this
subpart, means the program that results from the expenditure of agency
funds to assist lower income Federal employees with child care costs,
including, but not limited to, such activities as: determining which
employees receive a subsidy, and the size of the subsidy each employee
receives; distributing agency funds to participating providers; and
tracking and reporting to OPM information such as total cost and
employee utilization of the program.
Sec. 792.212 What is the definition of civilian employee?
The term civilian employee, for the purposes of this subpart, means
all appointive positions in an Executive agency.
Sec. 792.213 What is the definition of a Federally sponsored child care center?
The term Federally sponsored child care center, for the purposes of
this subpart, is a child care center that is located in a building or
space that is owned or leased by the Federal government.
Sec. 792.214 What is the definition of contractor?
Sec. 643 of Public Law 106-58 says that child care services provided
by contract are covered by this provision. The term contractor applies
to an organization or individual who provides child care services for
which Federal families are eligible. Child care providers that may
provide services under contract include center-based child care and
family child care homes. The term provider is typically used to denote
contractor in the child care industry. For the purposes of this subpart,
the term provider is used to denote both center-based child care and
family child care homes.
Sec. 792.215 What is the definition of a child?
For the purposes of this subpart, a child is considered to be:
(a) A biological child who lives with the Federal employee;
(b) An adopted child;
(c) A stepchild;
(d) A foster child;
(e) A child for whom a judicial determination of support has been
obtained; or
(f) A child to whose support the Federal employee who is a parent or
legal guardian makes regular and substantial contributions.
Sec. 792.216 What children are eligible for this subsidy?
The law covers the children of Federal employees, excluding contract
employees, from birth through age 13 and disabled children through age
18.
[[Page 74]]
Sec. 792.217 What is a disabled child?
For the purposes of this subpart a disabled child is defined as one
who is unable to care for himself or herself based on a physical or
mental incapacity as determined by a physician or licensed or certified
psychologist.
Sec. 792.218 Are children enrolled in summer programs and part-time programs eligible?
Yes, Federal employees with children (birth through age 13 and
disabled children through age 18) who are enrolled in summer care
programs and part-time programs are eligible.
Sec. 792.219 Are part-time Federal employees eligible?
Yes, Federal employees who work part-time are eligible.
Sec. 792.220 Does the law apply only to on-site Federal child care centers that are utilized by Federal families?
No, the bill is broad in scope and includes non-Federal center-based
child care as well as care in family child care homes, as long as they
are licensed and/or regulated by the State and/or local regulating
authorities.
Sec. 792.221 What is the process for helping lower income employees with child care tuition?
OPM guidance includes further explanation, but the process for the
tuition assistance program can be summarized in 8 steps:
(a) After completing your collective bargaining obligations, where
applicable, notify the Congressional committees (see Sec. 792.203) and
OPM of your decision to use a specific amount of appropriated funds for
this purpose;
(b) Determine how you will structure the program and which tuition
assistance model you will use;
(c) Determine how you will administer the program;
(d) Advertise the program;
(e) Conduct the application process;
(f) Make the tuition assistance determinations and notify the
employees (parents are then charged a reduced tuition rate by the
provider);
(g) Provide the funds to the provider or to an organization that
will administer the program for you; and
(h) Report the results to OPM on the mandatory reporting form.
Sec. 792.222 Are agencies required to negotiate with their Federal labor organizations about the provisions of this law?
You are reminded of your obligation to negotiate or consult, as
appropriate, with the exclusive representatives of your employees on the
implementation of the regulations in this subpart under 5 U.S.C. 7117.
Sec. 792.223 Are there any conditions which the child care provider must meet in order to participate in this program?
Yes, the provider, whether center-based or family child care, must
be licensed and/or regulated by the State and/or local authorities where
the child care service is delivered.
Sec. 792.224 Is there a statutory cap on the amount or the percentage of child care tuition that will be subsidized?
No, the law does not specify a cap.
Sec. 792.225 What is the definition of a lower income Federal employee and how is the amount of tuition assistance subsidy determined?
Each agency makes the determination of the definition of lower
income Federal employee. Lower income Federal employee can be defined by
an agency in a number of ways. The process for determining both
eligibility and the amount of tuition assistance subsidy for each family
will usually involve consideration of total family income along with
other factors such as total child care costs, depending on the tuition
assistance model(s) you use. Agencies are not required to use one of the
models that OPM suggests. If an agency uses a model OPM has suggested in
its guidance, you may wish to change the threshold amounts, or
percentages of total family income or other factors. In their guidance
to this subpart, OPM will provide examples of models with detailed
explanations. OPM's guidance on this subpart is a supplement to this
subpart.
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(a) If the model or models you select includes a total family income
threshold, you can use criteria such as those from:
(1) The Child Care Development Block Grant as defined (42 U.S.C.
9858);
(2) A formula based on a percentage of the State poverty level (as
many States do for certain programs); or
(3) A set amount of total family income the agency chooses depending
on the agency demographics and need to assist lower income Federal
employees.
(b) Some models do not require a threshold amount, since eligibility
is determined as a function of the relationship between total family
income, actual child care tuition costs, and an amount or percentage the
agency is willing to pay.
(c) In order to determine the amount of tuition assistance subsidy
by which tuition will be reduced for a Federal employee, a number of
approaches can be taken. The size of the subsidy is dependent on
different income levels. It can be based on a tuition sliding scale such
as that used in the military formula (10 U.S.C. 1791-1798); a formula
based on a specific percentage of total family income the family is
expected to pay with the agency paying the remaining amount; or a
formula based on a specific percentage of child care tuition the family
is expected to pay with the agency paying the remaining amount. Each of
these approaches is based on different philosophical assumptions and it
will be up to the agency to determine which model or models best fits
its needs. The models are described in detail in OPM's guidance.
(d) Besides total family income, you may consider extraordinary
financial situations to determine eligibility and the subsidy amount.
Sec. 792.226 Who determines if a Federal employee qualifies as a lower income employee and how is the program administered?
The agency or another appropriately identified organization
determines eligibility using certain income and/or tuition criteria
chosen by the agency. If the agency itself does not administer the
program, it must select another organization to do so, using procedures
that are in accordance with the Federal Acquisition Regulations.
Regardless of what organization administers the program, the model for
determining both the tuition assistance eligibility and the amount of
the subsidy is always determined by the Federal agency.
Sec. 792.227 Are child care subsidies paid to the Federal employee using the child care?
No, the child care subsidy is paid to the child care provider. If
you choose to have an organization administer your program (see
Sec. 792.226), the subsidy is paid to the organization and they, in
turn, pay the provider. In any case, the provider will invoice the
organization that administers the program.
Sec. 792.228 May we disburse funds to a child care provider or to an
organization that administers our program prior to the time the employee
receiving tuition
assistance has enrolled his or her child in the child care
center or family child care home?
Yes, you may wish to disburse one lump sum to the organization
administering the tuition assistance program and they will be
responsible for tracking the utilization and providing you with regular
reports. An agency contract should specify that any unexpended funds
shall be returned to the agency after contract completion.
Sec. 792.229 How will the disbursement covered by Sec. 792.227 work where there is a Federally sponsored child care center in a multi-tenant building?
In a multi-tenant building, funds from the agencies could be pooled
together for the benefit of the employees qualified for tuition
assistance.
Sec. 792.230 For how long will the tuition assistance be in effect for a Federal employee?
The tuition assistance, in the form of a reduced tuition rate, will
be in effect from the time the decision for a particular Federal
employee is made and the child is enrolled in the program, until the
child is no longer enrolled, but not later than September 30, 2000.
These funds are not available to pay
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for services performed after September 30, 2000.
Sec. 792.231 Can these funds be used for children of Federal employees who are already enrolled in child care?
Yes, the funds can be used for children currently enrolled in child
care as long as their families meet the tuition assistance eligibility
requirements established by your agency.
Sec. 792.232 Can we place special restrictions or requirements on the use of these funds, and can we restrict the disbursement of such funds to only one type
of child care or to one location?
(a) Yes, depending on your staffing needs and your employees'
situations, including the local availability of child care, you may
choose to place restrictions on the use of your funds in a number of
ways including, but not limited to:
(1) Fund Federal employees using family child care homes;
(2) Fund Federal employees using your on-site child care center;
(3) Fund Federal families using community, non-Federal child care
centers; or
(4) Restrict the use of such funds to one or more locations.
(b) It is up to you to determine whether there will be any
restrictions on the use of your appropriated funds for child care
tuition costs.
Sec. 792.233 May we use the funds to improve the physical space of the family child care homes or child care centers?
No, the legislation specifically addresses making the child care
more affordable for lower income Federal employees.
Sec. 792.234 For how long is the law effective?
The law is effective for one year, ending September 30, 2000.