[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
5
Parts 1 to 699
Revised as of January 1, 2002
Administrative Personnel
Containing a codification of documents of general
applicability and future effect
As of January 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 5:
Chapter I--Office of Personnel Management 3
Finding Aids:
Table of CFR Titles and Chapters........................ 743
Alphabetical List of Agencies Appearing in the CFR...... 761
List of CFR Sections Affected........................... 771
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 5 CFR 1.1 refers to
title 5, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
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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
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Title 42 through Title 50................................as of October 1
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2002.
[[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, 2002.
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 1 to 699)
--------------------------------------------------------------------
Note: Title 5 of the United States Code was revised and enacted into
positive law by Public Law 89-554, Sept. 6, 1966. New citations for
obsolete references to sections of 5 U.S.C. appearing in this volume may
be found in a redesignation table under title 5, Government Organization
and Employees, United States Code.
Part
chapter i--Office of Personnel Management................... 1
[[Page 3]]
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
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SUBCHAPTER A--CIVIL SERVICE RULES
Part Page
1 Coverage and definitions (Rule I)........... 7
2 Appointment through the competitive system
(Rule II)............................... 8
3 Noncompetitive acquisition of status (Rule
III).................................... 9
4 Prohibited practices (Rule IV).............. 10
5 Regulations, investigation, and enforcement
(Rule V)................................ 11
6 Exceptions from the competitive service
(Rule VI)............................... 12
7 General provisions (Rule VII)............... 14
8 Appointments to overseas positions (Rule
VIII)................................... 14
9
[Reserved]
SUBCHAPTER B--CIVIL SERVICE REGULATIONS
110 OPM regulations and information collection
requirements............................ 16
151 Political activity of State or local
officers or employees................... 17
175 OPM mandatory review of classified documents 18
177 Administrative claims under Federal Tort
Claims Act.............................. 19
178 Procedures for settling claims.............. 22
179 Claims collection standards................. 26
180 Employees' personal property claims......... 40
185 Program fraud civil remedies................ 47
210 Basic concepts and definitions (general).... 62
211 Veteran preference.......................... 64
212 Competitive service and competitive status.. 65
213 Excepted service............................ 65
214 Senior Executive Service.................... 78
230 Organization of the Government for personnel
management.............................. 80
250 Personnel management in agencies............ 81
[[Page 4]]
251 Agency relationships with organizations
representing Federal employees and other
organizations........................... 82
293 Personnel records........................... 85
294 Availability of official information........ 98
297 Privacy procedures for personnel records.... 108
300 Employment (general)........................ 120
301 Overseas employment......................... 132
302 Employment in the excepted service.......... 133
304 Expert and consultant appointments.......... 141
305
[Reserved]
307 Veterans readjustment appointments.......... 144
308 Volunteer service........................... 145
310 Employment of relatives..................... 146
315 Career and career-conditional employment.... 147
316 Temporary and term employment............... 169
317 Employment in the Senior Executive Service.. 175
319 Employment in senior-level and scientific
and professional positions.............. 192
330 Recruitment, selection, and placement
(general)............................... 195
332 Recruitment and selection through
competitive examination................. 219
333 Recruitment and selection for temporary and
term appointments outside the register.. 222
334 Temporary assignment of employees between
Federal agencies and State, local, and
Indian tribal governments, institutions
of higher education, and other eligible
organizations........................... 224
335 Promotion and internal placement............ 227
337 Examining system............................ 230
338 Qualification requirements (general)........ 231
339 Medical qualification determinations........ 232
340 Other than full-time career employment
(part-time, seasonal, on-call, and
intermittent)........................... 236
351 Reduction in force.......................... 241
352 Reemployment rights......................... 260
353 Restoration to duty from uniformed service
or compensable injury................... 277
359 Removal from the Senior Executive Service;
guaranteed placement in other personnel
systems................................. 286
362 Presidential management intern program...... 295
410 Training.................................... 298
412 Executive, management, and supervisory
development............................. 308
430 Performance management...................... 310
432 Performance based reduction in grade and
removal actions......................... 320
451 Awards...................................... 325
[[Page 5]]
470 Personnel management research programs and
demonstrations projects................. 328
511 Classification under the General Schedule... 332
530 Pay rates and systems (general)............. 338
531 Pay under the General Schedule.............. 345
532 Prevailing rate systems..................... 370
534 Pay under other systems..................... 472
536 Grade and pay retention..................... 479
537 Repayment of student loans.................. 487
550 Pay administration (general)................ 491
551 Pay administration under the Fair Labor
Standards Act........................... 560
553 Reemployment of military and civilian
retirees to meet exceptional employment
needs................................... 586
572 Travel and transportation expenses; new
appointees and interviews............... 588
575 Recruitment and relocation bonuses;
retention allowances; supervisory
differentials........................... 589
576 Waiver of repayment of voluntary separation
incentive payments...................... 603
581 Processing garnishment orders for child
support and/or alimony.................. 604
582 Commercial garnishment of Federal employees'
pay..................................... 661
591 Allowances and differentials................ 669
595 Physicians' comparability allowances........ 684
610 Hours of duty............................... 687
630 Absence and leave........................... 692
[[Page 7]]
SUBCHAPTER A--CIVIL SERVICE RULES
PART 1--COVERAGE AND DEFINITIONS (RULE I)--Table of Contents
Sec.
1.1 Positions and employees affected by the rules in this subchapter.
1.2 Extent of the competitive service.
1.3 Definitions.
1.4 Extent of the excepted service.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10022, Sept. 14, 1963, unless otherwise noted.
Sec. 1.1 Positions and employees affected by the rules in this subchapter.
The rules in this subchapter shall apply to all positions in the
competitive service and to all incumbents of such positions. Except as
expressly provided in the rule concerned, the rules in this subchapter
shall not apply to positions and employees in the excepted service.
Sec. 1.2 Extent of the competitive service.
The competitive service shall include: (a) All civilian positions in
the executive branch of the Government unless specifically excepted
therefrom by or pursuant to statute or by the Office of Personnel
Management (hereafter referred to in this subchapter as OPM) under
Sec. 6.1 of this subchapter; and (b) all positions in the legislative
and judicial branches of the Federal Government and in the Government of
the District of Columbia which are specifically made subject to the
civil service laws by statute. OPM is authorized and directed to
determine finally whether a position is in the competitive service.
Sec. 1.3 Definitions.
As used in the rules in this subchapter:
(a) Competitive service shall have the same meaning as the words
``classified service'', or ``classified (competitive) service'', or
``classified civil service'' as defined in existing statutes and
executive orders.
(b) Competitive position shall mean a position in the competitive
service.
(c) Competitive status shall mean basic eligibility to be
noncompetitively selected to fill a vacancy in a competitive position. A
competitive status shall be acquired by career-conditional or career
appointment through open competitive examination upon satisfactory
completion of a probationary period, or may be granted by statute,
executive order, or the Civil Service Rules without competitive
examination. A person with competitive status may be promoted,
transferred, reassigned, reinstated, or demoted without taking an open
competitive examination, subject to the conditions prescribed by the
Civil Service Rules and Regulations.
(d) An employee shall be considered as being in the competitive
service when he has a competitive status and occupies a competitive
position unless he is serving under a temporary appointment: Provided,
that an employee who is in the competitive service at the time his
position is first listed under Schedule A, B, or C shall be considered
as continuing in the competitive service as long as he continues to
occupy such position.
(e) Tenure shall mean the period of time an employee may reasonably
expect to serve under his current appointment. Tenure shall be granted
and governed by the type of appointment under which an employee is
currently serving without regard to whether he has a competitive status
or whether his appointment is to a competitive position or an excepted
position.
Sec. 1.4 Extent of the excepted service.
(a) The excepted service shall include all civilian positions in the
executive branch of the Government which are specifically excepted from
the requirements of the Civil Service Act or from the competitive
service by or pursuant to statute or by OPM under Sec. 6.1 of this
subchapter.
(b) Excepted service shall have the same meaning as the words
``unclassified service'', or ``unclassified civil service'', or
``positions outside the competitive civil service'' as used in existing
statutes and executive orders.
[[Page 8]]
(c) Excepted position shall have the same meaning as ``unclassified
position'', or ``position excepted by law'', or ``position excepted by
executive order'', or ``position excepted by Civil Service Rule'', or
``position outside the competitive service'' as used in existing
statutes and Executive orders.
PART 2--APPOINTMENT THROUGH THE COMPETITIVE SYSTEM (RULE II)--Table of Contents
Sec.
2.1 Competitive examinations and eligible registers.
2.2 Appointments.
2.3 Apportionment.
2.4 Probationary period.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10023, Sept. 14, 1963, unless otherwise noted.
Sec. 2.1 Competitive examinations and eligible registers.
(a) OPM shall be responsible for open competitive examinations for
admission to the competitive service which will fairly test the relative
capacity and fitness of the persons examined for the position to be
filled. OPM is authorized to establish standards with respect to
citizenship, age, education, training and experience, suitability, and
physical and mental fitness, and for residence or other requirements
which applicants must meet to be admitted to or rated in examinations.
(b) In addition to the names of persons who qualify in competitive
examinations, the names of persons who have lost eligibility on a career
or career-conditional register because of service in the armed forces,
and the names of persons who lost opportunity for certification or who
have served under career or career-conditional appointment when OPM
determines that they should be given certification, may also be entered
at such places on appropriate registers and under such conditions as OPM
may prescribe.
(c) Whenever the Office of Personnel Management (1) is unable to
certify a sufficient number of names to permit the appointing officer to
consider three eligibles for appointment to a fourth-class postmaster
position in accordance with the regular procedure, or (2) finds that a
particular rate of compensation for fourth-class postmaster positions is
too low to warrant regular competitive examinations for such positions,
it may authorize appointment to any such position or positions in
accordance with such procedure as may be prescribed by OPM. Persons
appointed under this paragraph may acquire competitive status subject to
satisfactory completion of a probationary period prescribed by OPM.
Sec. 2.2 Appointments.
(a) OPM shall establish and administer a career-conditional
appointment system for positions subject to competitive examinations
which will permit adjustment of the career service to necessary
fluctuations in Federal employment, and provide an equitable and orderly
system for stabilizing the Federal work force. A competitive status
shall be acquired by a career-conditional appointee upon satisfactory
completion of a probationary period, but the appointee shall have
career-conditional tenure for a period of service to be prescribed by
regulation of OPM. When an employee has completed the required period of
service his appointment shall be converted to a career appointment
without time limitation: Provided, That his career-conditional
appointment shall not be converted to a career appointment if the
limitation on the number of permanent employees in the Federal civil
service established under paragraph (b) of this section would be
exceeded thereby. Persons selected from competitive civil service
registers for other than temporary appointment shall be given career-
conditional appointments: Provided, That career appointments shall be
given to the following classes of eligibles:
(1) Persons whose appointments are required by statute to be made on
a permanent basis;
(2) Employees serving under career appointments at the time of
selection from such registers;
(3) Former employees who have eligibility for career appointments
upon reinstatement; and
(4) To the extent permitted by law, persons appointed to positions
in the field service of the U.S. Postal Service for which salary rates
are fixed by the
[[Page 9]]
act of July 6, 1945, 59 Stat. 435, as heretofore or hereafter amended
and supplemented.
(b) Under the career-conditional appointment system there shall be a
limit on the number of permanent employees in the Federal civil service
which shall be the ceiling established by section 1310 of the
Supplemental Appropriation Act, 1952 (65 Stat. 757), as amended. In the
event section 1310, supra, is repealed, OPM is authorized to fix such
limitation on the number of permanent employees in the Federal civil
service as it finds necessary to meet the needs of the service.
(c) OPM may determine the types, duration, and conditions of
indefinite and temporary appointments, and may prescribe the method for
replacing persons holding such appointments.
Sec. 2.3 Apportionment.
Subject to such modifications as OPM finds to be necessary in the
interest of good administration, appointments to positions in agencies'
headquarters offices which are located within the metropolitan area of
Washington, DC, shall be made so as to maintain the apportionment of
appointments among the several States, Territories, and the District of
Columbia upon the basis of population.
Sec. 2.4 Probationary period.
Persons selected from registers of eligibles for career or career-
conditional appointment and employees promoted, transferred, or
otherwise assigned, for the first time, to supervisory or managerial
positions shall be required to serve a probationary period under terms
and conditions prescribed by the Office.
[45 FR 4337, Jan. 22, 1980]
PART 3--NONCOMPETITIVE ACQUISITION OF STATUS (RULE III)--Table of Contents
Sec.
3.1 Classes of persons who may noncompetitively acquire status.
3.2 Appointments without competitive examination in rare cases.
3.3 Conversion of appointments.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10023, Sept. 14, 1963, unless otherwise noted.
Sec. 3.1 Classes of persons who may noncompetitively acquire status.
(a) Upon recommendation by the agency concerned, and subject to such
noncompetitive examination, time limits, or other requirements as OPM
may prescribe the following classes of persons may acquire a competitive
status without competitive examination:
(1) A person holding a permanent position when it is placed in the
competitive service by statute or executive order or is otherwise made
subject to competitive examination.
(2) A disabled veteran who, in a manner satisfactory to OPM, has
completed a course of training in the executive branch of the Government
prescribed by the Administrator of Veterans' Affairs in accordance with
the act of March 24, 1943 (57 Stat. 43).
(3) An employee who has served at least two years in the immediate
office of the President or on the White House Staff and who is
transferred to a competitive position at the request of an agency.
(4) An employee who was serving when his name was reached for
certification on a civil service register appropriate for the position
in which he was serving: Provided, That the recommendation for
competitive status is made prior to expiration of the register on which
his name appears or is made during a period of continuous service since
his name was reached: Provided further, That the register was being used
for appointments conferring competitive status at the time his name was
reached.
(b) Upon recommendation by the employing agency, and subject to such
requirements as the Office of Personnel Management may prescribe, the
following classes of handicapped employees may acquire competitive
status without competitive examination:
(1) A severely physically handicapped employee who completes at
least two years of satisfactory service in a position excepted from the
competitive service.
(2) A mentally retarded employee who completes at least two years of
[[Page 10]]
satisfactory service in a position excepted from the competitive
service.
(3) An employee with a psychiatric disability who completes at least
2 years of satisfactory service in a position excepted from the
competitive service.
[28 FR 10023, Sept. 14, 1963, as amended by E.O. 12125, 3 CFR, 1979
Comp., p. 375; 65 FR 41868, July 7, 2000]
Sec. 3.2 Appointments without competitive examination in rare cases.
Subject to receipt of satisfactory evidence of the qualifications of
the person to be appointed, OPM may authorize an appointment in the
competitive service without competitive examination whenever it finds
that the duties or compensation of the position are such, or that
qualified persons are so rare, that, in the interest of good civil-
service administration, the position cannot be filled through open
competitive examination. Any person heretofore or hereafter appointed
under this section shall acquire a competitive status upon completion of
at least one year of satisfactory service and compliance with such
requirements as OPM may prescribe. Detailed statements of the reasons
for the noncompetitive appointments made under this section shall be
published in OPM's annual reports.
Sec. 3.3 Conversion of appointments.
Any person who acquires a competitive status under this part shall
have his appointment converted to career-conditional appointment unless
he meets the service requirement for career appointment prescribed under
Sec. 2.2(a) of this subchapter.
PART 4--PROHIBITED PRACTICES (RULE IV)--Table of Contents
Sec.
4.1 Prohibition against political activity.
4.2 Prohibition against racial, political or religious discrimination.
4.3 Prohibition against securing withdrawal from competition.
Authority: 5 U.S.C. 3301, 3302.
Sec. 4.1 Prohibition against political activity.
No person employed in the executive branch of the Federal
Government, or any agency or department thereof, shall use his official
authority or influence for the purpose of interfering with an election
or affecting the result thereof. No person occupying a position in the
competitive service shall take any active part in political management
or in political campaigns, except as may be provided by or pursuant to
statute. All such persons shall retain the right to vote as they may
choose and to express their opinions on all political subjects and
candidates.
[28 FR 10024, Sept. 14, 1963]
Sec. 4.2 Prohibition against racial, political or religious discrimination.
No person employed in the executive branch of the Federal Government
who has authority to take or recommend any personnel action with respect
to any person who is an employee in the competitive service or any
eligible or applicant for a position in the competitive service shall
make any inquiry concerning the race, political affiliation, or
religious beliefs of any such employee, eligible, or applicant. All
disclosures concerning such matters shall be ignored, except as to such
membership in political parties or organizations as constitutes by law a
disqualification for Government employment. No discrimination shall be
exercised, threatened, or promised by any person in the executive branch
of the Federal Government against or in favor of any employee in the
competitive service, or any eligible or applicant for a position in the
competitive service because of his race, political affiliation, or
religious beliefs, except as may be authorized or required by law.
[28 FR 10024, Sept. 14, 1963]
Sec. 4.3 Prohibition against securing withdrawal from competition.
No person shall influence another person to withdraw from
competition for any position in the competitive
[[Page 11]]
service for the purpose of either improving or injuring the prospects of
any applicant for appointment.
[28 FR 10024, Sept. 14, 1963, as amended at 45 FR 4337, Jan. 22, 1980]
PART 5--REGULATIONS, INVESTIGATION, AND ENFORCEMENT (RULE V)--Table of Contents
Sec.
5.1 Civil Service regulations.
5.2 Investigation and evaluations.
5.3 Enforcement.
5.4 Information and testimony.
Authority: 5 U.S.C. 3301, 3302; E.O. 12107.
Source: 45 FR 4337, Jan. 22, 1980, unless otherwise noted.
Sec. 5.1 Civil Service regulations.
The Director, Office of Personnel Management, shall promulgate and
enforce regulations necessary to carry out the provisions of the Civil
Service Act and the Veterans' Preference Act, as reenacted in title 5,
United States Code, the Civil Service Rules, and all other statutes and
Executive orders imposing responsibilities on the Office. The Director
is authorized, whenever there are practical difficulties and unnecessary
hardships in complying with the strict letter of the regulation, to
grant a variation from the strict letter of the regulation if such a
variation is within the spirit of the regulations, and the efficiency of
the Government and the integrity of the competitive service are
protected and promoted. Whenever a variation is granted the Director
shall note the official record to show:
(a) The particular practical difficulty or hardship involved, (b)
what is permitted in place of what is required by regulations, (c) the
circumstances which protect or promote the efficiency of the Government
and the integrity of the competitive service, and (d) a statement
limiting the application of the variation to the continuation of the
conditions which gave rise to it. Like variations shall be granted
whenever like conditions exist. All such decisions and information
concerning variations noted in the official record shall be published
promptly in a Federal Personnel Manual Letter or Bulletin and in the
Director's next annual report.
Sec. 5.2 Investigation and evaluations.
The Director may secure effective implementation of the civil
service laws, rules, and regulations, and all Executive orders imposing
responsibilities on the Office by:
(a) Investigating the qualifications and suitability of applicants
for positions in the competitive service. The Director may require
appointments to be made subject to investigation to enable the Director
to determine, after appointment, that the requirements of law or the
civil service rules and regulations have been met.
(b) Evaluating the effectiveness of: (1) Personnel policies,
programs, and operations of Executive and other Federal agencies subject
to the jurisdiction of the Office, including their effectiveness with
regard to merit selection and employee development; (2) agency
compliance with and enforcement of applicable laws, rules, regulations
and office directives; and (3) agency personnel management evaluation
systems.
(c) Investigating, or directing an agency to investigate and report
on, apparent violations of applicable laws, rules, regulations, or
directives requiring corrective action, found in the course of an
evaluation.
(d) Requiring agencies to report, in a manner and at times as the
Director may prescribe, personnel information the Director requests
relating to civilian employees in the Executive branch of the
Government, as defined by section 311 of the Civil Service Reform Act of
1978, including positions and officers and employees in the competitive,
excepted and Senior Executive services, whether permanent, career-
conditional, temporary or emergency.
Sec. 5.3 Enforcement.
(a) The Director is authorized to ensure enforcement of the civil
service laws, rules, and regulations, and all applicable Executive
orders, by:
(1) Instructing an agency to separate or take other action against
an employee serving an appointment subject to investigation when the
Director finds that the employee is disqualified
[[Page 12]]
for Federal employment. Where the employee or the agency appeals the
Director's finding that a separation or other action is necessary, the
Director may instruct the agency as to whether or not the employee
should remain on duty and continue to receive pay pending adjudication
of the appeal: Provided, That when an agency separates or takes other
action against an employee pursuant to the Director's instructions, and
the Director, on the basis of new evidence, subsequently reverses the
initial decision as to the employee's qualifications and suitability,
the agency shall, upon request of the Director, restore the employee to
duty or otherwise reverse any action taken.
(2) Reporting the results of evaluation or investigations to the
head of the agency concerned with instructions for any corrective action
necessary, including cancellation of personnel actions where
appropriate. The Director's findings resulting from evaluations or
investigations are binding unless changed as a result of agency evidence
and arguments against them. If, during the course of any evaluation or
investigation under this section, the Director finds evidence of matters
which come within the investigative and prosecutorial jurisdiction of
the Special Counsel of the Merit Systems Protection Board, the Director
shall refer this evidence to the Special Counsel for appropriate
disposition.
(b) Whenever the Director issues specific instructions as to
separation or other corrective action with regard to an employee,
including cancellation of a personnel action, the head of the agency
concerned shall comply with the Director's instructions.
(c) If the agency head fails to comply with the specific
instructions of the Director as to separation or other corrective action
with regard to an employee, including cancellation of a personnel
action, the Director may certify to the Comptroller General of the
United States the agency's failure to act together with such additional
information as the Comptroller General may require, and shall furnish a
copy of such certification to the head of the agency concerned. The
individual with respect to whom such separation or other corrective
action was instructed shall be entitled thereafter to no pay or only to
such pay as appropriate to effectuate the Director's instructions.
Sec. 5.4 Information and testimony.
When required by the Office, the Merit Systems Protection Board, or
the Special Counsel of the Merit Systems Protection Board, or by
authorized representatives of these bodies, agencies shall make
available to them, or to their authorized representatives, employees to
testify in regard to matters inquired of under the civil service laws,
rules, and regulations, and records pertinent to these matters. All such
employees, and all applicants or eligibles for positions covered by
these rules, shall give to the Office, the Merit Systems Protection
Board, the Special Counsel, or to their authorized representatives, all
information, testimony, documents, and material in regard to the above
matters, the disclosure of which is not otherwise prohibited by law or
regulation. These employees, applicants, and eligibles shall sign
testimony given under oath or affirmation before an officer authorized
by law to administer oaths. Employees are performing official duty when
testifying or providing evidence pursuant to this section.
PART 6--EXCEPTIONS FROM THE COMPETITIVE SERVICE (RULE VI)--Table of Contents
Sec.
6.1 Authority to except positions from the competitive service.
6.2 Schedules of excepted positions.
6.3 Method of filling excepted positions and status of incumbents.
6.4 Removal of incumbents of excepted positions.
6.5 Assignment of excepted employees.
6.6 Revocation of exceptions.
6.7 Movement of persons between the civil service system and other
merit systems.
6.8 Specified exceptions.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.
Sec. 6.1 Authority to except positions from the competitive service.
(a) OPM may except positions from the competitive service when it
determines that appointments thereto through competitive examination are
[[Page 13]]
not practicable. These positions shall be listed in OPM's annual report
for the fiscal year in which the exceptions are made.
(b) OPM shall decide whether the duties of any particular position
are such that it may be filled as an excepted position under the
appropriate schedule.
(c) Notice of OPM's decision granting authority to make appointments
to an excepted position under the appropriate schedule shall be
published in the Federal Register.
[28 FR 10025, Sept. 14, 1963, as amended by E.O. 11315, 3 CFR, 1966-1970
Comp., p. 597; E.O. 12043, 43 FR 9773, Mar. 10, 1978]
Sec. 6.2 Schedules of excepted positions.
OPM shall list positions that it excepts from the competitive
service in Schedules A, B, and C, which schedules shall constitute parts
of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-
determining character for which it is not practicable to examine shall
be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-
determining character for which it is not practicable to hold a
competitive examination shall be listed in Schedule B. Appointments to
these positions shall be subject to such noncompetitive examination as
may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining
character shall be listed in Schedule C.
Sec. 6.3 Method of filling excepted positions and status of incumbents.
(a) The head of an agency may fill excepted positions by the
appointment of persons without civil service eligibility or competitive
status and such persons shall not acquire competitive status by reason
of such appointment: Provided, That OPM, in its discretion, may by
regulation prescribe conditions under which excepted positions may be
filled in the same manner as competitive positions are filled and
conditions under which persons so appointed may acquire a competitive
status in accordance with the Civil Service Rules and Regulations.
(b) To the extent permitted by law and the provisions of this part,
appointments and position changes in the excepted service shall be made
in accordance with such regulations and practices as the head of the
agency concerned finds necessary.
Sec. 6.4 Removal of incumbents of excepted positions.
Except as may be required by statute, the Civil Service Rules and
Regulations shall not apply to removals from positions listed in
Schedules A and C or from positions excepted from the competitive
service by statute. The Civil Service Rules and Regulations shall apply
to removals from positions listed in Schedule B of persons who have
competitive status.
Sec. 6.5 Assignment of excepted employees.
No person who is serving under an excepted appointment shall be
assigned to the work of a position in the competitive service without
prior approval of OPM.
Sec. 6.6 Revocation of exceptions.
OPM may remove any position from or may revoke in whole or in part
any provision of Schedule A, B, or C. Notice of OPM's decision making
these changes shall be published in the Federal Register.
[E.O. 11315, 3 CFR, 1966-1970 Comp., p. 597, as amended by E.O. 12043,
43 FR 9773, Mar. 10, 1978]
Sec. 6.7 Movement of persons between the civil service system and other merit systems.
Whenever OPM and any Federal agency having an established merit
system determine it to be in the interest of good administration and
consistent with the intent of the civil service laws and any other
applicable laws, they may enter into an agreement prescribing conditions
under which persons may be moved from one system to the other and
defining the status and tenure that the persons affected shall acquire
upon such movement.
Sec. 6.8 Specified exceptions.
(a) Positions in the Department of the Interior and in the
Department of Commerce whose incumbents serve as the principal
representative of the Secretary in their respective regions shall be
listed in Schedule C for grades not
[[Page 14]]
exceeding grade GS-15 of the General Schedule, and shall be designated
Noncareer Executive Assignments for positions graded higher than GS-15.
Incumbents of these positions who are, on February 15, 1975, in the
competitive service shall not be affected by the foregoing provisions of
this section.
(b) Positions in the Community Services Administration and ACTION
whose incumbents serve as regional director or regional administrator
shall be listed in Schedule C for grades not exceeding GS-15 of the
General Schedule and shall be designated Noncareer Executive Assignments
for positions graded higher than GS-15. Incumbents of these positions
who are, on November 29, 1977, in the competitive service shall not be
affected by the foregoing provisions of this subsection.
(c) Within the Department of Agriculture, positions in the
Agriculture Stabilization and Conservation Service the incumbents of
which serve as State Executive Directors and positions in the Farmers
Home Administration the incumbents of which serve as State Directors or
State Directors-at-Large shall be listed in Schedule C for all grades of
the General Schedule.
[E.O. 11839, 40 FR 7351, Feb. 19, 1975, as amended by E.O. 11887, 40 FR
51411, Nov. 5, 1975; E.O. 12021, 42 FR 61237, Dec. 2, 1977; 47 FR 4227,
Jan. 29, 1982]
PART 7--GENERAL PROVISIONS (RULE VII)--Table of Contents
Sec.
7.1 Discretion in filling vacancies.
7.2 Personnel reports.
7.3 Reemployment rights.
7.4 Citizenship.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.
Sec. 7.1 Discretion in filling vacancies.
In his discretion, an appointing officer may fill any position in
the competitive service either by competitive appointment from a civil
service register or by noncompetitive selection of a present or former
Federal employee, in accordance with the Civil Service Regulations. He
shall exercise his discretion in all personnel actions solely on the
basis of merit and fitness and without regard to political or religious
affiliations, marital status, or race.
Sec. 7.2 Personnel reports.
Each agency shall report to OPM, in such manner and at such times as
OPM may prescribe, such personnel information as it may request relating
to positions and officers and employees in the competitive service and
in the excepted service, whether permanent or career, career-
conditional, indefinite, temporary, emergency, or subject to contract.
Sec. 7.3 Reemployment rights.
OPM, whenever it determines it to be necessary, shall prescribe
regulations governing the release of employees (both within the
competitive service and the excepted service) by any agency in the
executive branch of the Government for employment in any other agency,
and governing the establishment, granting, and exercise of rights to
reemployment in the agencies from which employees are released.
Sec. 7.4 Citizenship.
(a) No person shall be admitted to competitive examination unless
such person is a citizen or national of the United States.
(b) No person shall be given any appointment in the competitive
service unless such person is a citizen or national of the United
States.
(c) OPM may, as an exception to this rule and to the extent
permitted by law, authorize the appointment of aliens to positions in
the competitive service when necessary to promote the efficiency of the
service in specific cases or for temporary appointments.
[E.O. 11935, 41 FR 37301, Sept. 3, 1976]
PART 8--APPOINTMENTS TO OVERSEAS POSITIONS (RULE VIII)--Table of Contents
Sec.
8.1 Additional authority of OPM.
8.2 Appointment of United States citizens.
8.3 Appointment of persons not citizens of the United States.
8.4 Positions excepted from the application of this part.
Authority: 5 U.S.C. 3301, 3302.
[[Page 15]]
Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.
Sec. 8.1 Additional authority of OPM.
In addition to authorizing the recruitment and appointment of
persons to overseas positions under regulations issued under the
preceding Rules, OPM may, by the regulations prescribed by it, authorize
the recruitment and appointment of persons to such positions as provided
in Sec. 8.2. As used in this part, overseas positions means positions in
foreign countries and in other areas beyond the continental limits of
the United States, except as provided in Sec. 8.4.
Sec. 8.2 Appointment of United States citizens.
United States citizens may be recruited overseas for appointment to
overseas positions in the competitive service without regard to the
competitive requirements of the Civil Service Act. Persons so recruited
who meet the qualification standards and other requirements of OPM for
overseas positions may be given appointments to be known as ``overseas
limited appointments.'' Such appointments shall be of temporary or
indefinite duration, and shall not confer the right to acquire a
competitive status. OPM may authorize overseas limited appointments for
United States citizens recruited within the continental limits of the
United States whenever it determines that it is not feasible to appoint
from a civil-service register. Persons serving under appointments made
pursuant to this section are hereby excluded from the operation of the
Civil Service Retirement Act of May 29, 1930, as amended, unless
eligible for retirement benefits by continuity of service or otherwise.
Sec. 8.3 Appointment of persons not citizens of the United States.
Persons who are not citizens of the United States may be recruited
overseas and appointed to overseas positions without regard to the Civil
Service Act.
Sec. 8.4 Positions excepted from the application of this part.
This part shall not apply to positions in Hawaii, Puerto Rico, the
Virgin Islands, and Alaska, and on the Isthmus of Panama.
PART 9 [RESERVED]
[[Page 16]]
SUBCHAPTER B--CIVIL SERVICE REGULATIONS
PART 110--OPM REGULATIONS AND INFORMATION COLLECTION REQUIREMENTS--Table of Contents
Subpart A--Posting Notices of New Regulations
Sec.
110.101 OPM responsibilities.
110.102 Agency responsibilities.
Subpart B--Information Collection Requirements
110.201 OMB control numbers.
Authority: 5 U.S.C. 1103; Section 110.201 is also issued under 5
U.S.C. 1104, 5 CFR part 5.2(c) and (d); 44 U.S.C. 3507(f); 5 CFR part
1320.
Subpart A--Posting Notices of New Regulations
Sec. 110.101 OPM responsibilities.
OPM will issue special bulletins to provide notice of its new
regulations. Each special bulletin will transmit:
(a) A reprint of the notice of rulemaking which appears in the
Federal Register.
(b) A posting notice which briefly explains the nature of the
change, and provides a place for the receiving office to indicate where
the full text of the Federal Register notice will be available for
review locally.
[44 FR 67626, Nov. 27, 1979, as amended at 59 FR 2945, Jan. 20, 1994]
Sec. 110.102 Agency responsibilities.
(a) Making regulations available for review. Offices receiving the
reprints of notices of rulemaking described in Sec. 110.101(a) will make
them available for review upon request. Each office will complete the
posting notice described in Sec. 110.101(b) to indicate where and how
requests to review these materials should be made.
(b) Posting locations and supplemental announcements. Once
completed, posting notices will be displayed in a prominent place.
Agencies should choose the posting location which best fits their
physical layout. Agencies may, at their discretion, supplement these
postings with announcements of new regulations in employee newsletters
and use other communication methods to provide notice of regulatory
changes. The basic requirement to post the notice continues, however,
even if supplemental announcement methods are used.
(c) Posting after the Federal Register comment date passes. The
public comment period on proposed regulations begins when a notice of
proposed rulemaking is published in the Federal Register, not with the
posting of the notice described in Sec. 110.101(b). The purpose of the
Sec. 110.101(b) notice is solely to inform managers and employees of
changes. Agencies are required to post the Sec. 110.101(b) notice even
if the formal deadline for comments shown in the preamble of the Federal
Register notice of rulemaking has passed. Agencies should make every
reasonable effort to minimize delays in distributing the special
bulletins described in Sec. 110.101 to their field offices.
(d) No fixed posting period. There are no minimum or maximum time
limits on displaying the notice described in Sec. 110.101(b) of this
section. Each office receiving a notice for posting should choose the
posting period which provides the best opportunity to inform managers
and employees of regulatory changes based upon office layout, geographic
dispersion of employees and other local factors.
[44 FR 67626, Nov. 27, 1979, as amended at 59 FR 2945, Jan. 20, 1994]
Subpart B--Information Collection Requirements
Sec. 110.201 OMB control numbers.
(a) Under section 3507(f) of the Paperwork Reduction Act of 1980
(Pub. L. 96-551), control numbers assigned by the Office of Management
and Budget must be displayed with agency information collection
requirements.
(b) This paragraph displays OMB-assigned control numbers for
information collection requirements contained within chapter 1 of this
title.
[[Page 17]]
------------------------------------------------------------------------
OMB
5 CFR citation control
No.
------------------------------------------------------------------------
Sec. 213.3102(ii).......................................... 3206-0082
Sec. 300.704(b)............................................ 3206-0166
Sec. 530.304............................................... 3206-0100
Sec. 532.105............................................... 3206-0036
Sec. 536.306............................................... 3206-0090
part 734.................................................... 3206-0092
part 734.................................................... 3206-0098
Sec. 831.101............................................... 3206-0033
Sec. 831.104............................................... 3206-0059
Sec. 831.104............................................... 3206-0061
Sec. 831.501(b)............................................ 3206-0121
Sec. 831.502(e)............................................ 3206-0034
Sec. 831.601............................................... 3206-0032
Sec. 831.601............................................... 3206-0042
Sec. 831.601............................................... 3206-0088
Sec. 831.601............................................... 3206-0096
Sec. 831.601............................................... 3206-0099
Sec. 831.601............................................... 3206-0103
Sec. 831.1904.............................................. 3206-0120
Sec. 831.2002.............................................. 3206-0128
Sec. 890.202............................................... 3206-0101
Sec. 891.104(f)............................................ 3206-0017
Sec. 891.104(f)............................................ 3206-0104
Sec. 891.201............................................... 3206-0102
Sec. 950.105............................................... 3206-0131
Sec. 950.202............................................... 3206-0131
Sec. 950.203............................................... 3206-0131
Sec. 950.204............................................... 3206-0131
Sec. 950.205............................................... 3206-0131
Sec. 950.302............................................... 3206-0131
Sec. 950.303............................................... 3206-0131
Sec. 950.601............................................... 3206-0131
Sec. 950.901............................................... 3206-0131
------------------------------------------------------------------------
[49 FR 7553, Mar. 1, 1984, as amended at 52 FR 7400, Mar. 11, 1987; 52
FR 16175, May 1, 1987; 53 FR 19147, May 26, 1988]
PART 151--POLITICAL ACTIVITY OF STATE OR LOCAL OFFICERS OR EMPLOYEES--Table of Contents
General Provisions
Sec.
151.101 Definitions.
Permissible Activities
151.111 Permissible activities.
Prohibited Activities
151.121 Use of official authority; coercion; candidacy; prohibitions.
151.122 Candidacy; exceptions.
Authority: 5 U.S.C. 1302, 1501-1508, as amended.
Source: 35 FR 16783, Oct. 30, 1970, unless otherwise noted.
General Provisions
Sec. 151.101 Definitions.
In this part:
(a) State means a State or territory or possession of the United
States.
(b) State or local agency means the executive branch of a State,
municipality, or other political subdivision of a State, or an agency or
department thereof.
(c) Federal agency means an executive agency or other agency of the
United States, but does not include a member bank of the Federal Reserve
System;
(d) State or local officer or employee means an individual employed
by a State or local agency whose principal employment is in connection
with an activity which is financed in whole or in part by loans or
grants made by the United States or a Federal agency but does not
include--
(1) An individual who exercises no functions in connection with that
activity.
(2) An individual employed by an educational or research
institution, establishment, agency, or system, which is supported in
whole or in part by a State or political subdivision thereof, or by a
recognized religious, philanthropic, or cultural organization.
(e) Political party means a National political party, a State
political party, and an affiliated organization.
(f) Election includes a primary, special, and general election.
(g) Nonpartisan election means an election at which none of the
candidates is to be nominated or elected as representing a political
party any of whose candidates for Presidential elector receives votes in
the last preceding election at which Presidential electors were
selected.
(h) Partisan when used as an adjective refers to a political party.
(i) Elective office means any office which is voted upon at an
election as defined at Sec. 151.101(f), above, but does not include
political party office.
[40 FR 42733, Sept. 16, 1975]
Permissible Activities
Sec. 151.111 Permissible activities.
(a) All State or local officers or employees are free to engage in
political activity to the widest extent consistent with the restrictions
imposed by law and this part. A State or local officer or employee may
participate in all political activity not specifically
[[Page 18]]
restricted by law and this part, including candidacy for office in a
nonpartisan election and candidacy for political party office.
[40 FR 42733, Sept. 16, 1975]
Prohibited Activities
Sec. 151.121 Use of official authority; coercion; candidacy; prohibitions.
A State or local officer or employee may not--
(a) Use his official authority or influence for the purpose of
interfering with or affecting the result of an election or a nomination
for office; or
(b) Directly or indirectly coerce, attempt to coerce, command, or
advise a State or local officer or employee to pay, lend, or contribute
anything of value to a political party, committee, organization, agency,
or person for a political purpose.
(c) Be a candidate for elective public office in a partisan
election.
[40 FR 42733, Sept. 16, 1975]
Sec. 151.122 Candidacy; exceptions.
Section 151.121(c) does not apply to--
(a) The Governor or Lieutenant Governor of a State or an individual
authorized by law to act as Governor;
(b) The Mayor of a city;
(c) A duly elected head of an executive department of a State or
municipality who is not classified under a State or municipal merit or
civil service system;
(d) An individual holding elective office;
(e) Activity in connection with a nonpartisan election; or
(f) Candidacy for a position of officer of a political party,
delegate to a political party convention, member of a National, State,
or local committee of a political party, or any similar position.
[40 FR 42733, Sept. 16, 1975, as amended at 40 FR 47101, Oct. 8, 1975]
PART 175--OPM MANDATORY REVIEW OF CLASSIFIED DOCUMENTS--Table of Contents
Sec.
175.101 Policy.
175.102 Requests for the declassification of documents.
Authority: E.O. 12065, 43 FR 28949.
Sec. 175.101 Policy.
The Office of Personnel Management bases its procedures for handling
national security information on Executive Order 12065, ``National
Security Information,'' and Information Security Oversight Office
Directive No. 1 concerning national security information.
[45 FR 995, Jan. 4, 1980]
Sec. 175.102 Requests for the declassification of documents.
Any Federal agency, Government employee or member of the public has
the right to request a mandatory review of any classified document, held
by the Office of Personnel Management, which was classified for national
security purposes by the Civil Service Commission. The Office of
Personnel Management does not have the authority to classify documents.
(a) Requests for mandatory declassification review should be
addressed to the Director, Office of Management, or the designee of the
Director, who will act on requests within 60 days. Requests need not be
made in any special form but shall, as specified in section 3-501 of the
Executive order, reasonably describe the information.
(b) Based upon the review, the document, or any reasonably
segregable portion thereof that no longer requires protection under the
Executive order, shall be declassified and released unless withholding
is otherwise warranted under applicable law.
(c) No OPM official will refuse to confirm the existence or non-
existence of any document requested under the Freedom of Informaton Act
or the mandatory review provisions of the Executive order, unless the
fact of its existence or non-existence would itself be classifiable
under the Executive order. OPM Administrative Manual chapter 22,
covering OPM policies and procedures relating to classified information
or material is available for inspection by the public in the OPM
Library, room 5H27, 1900 E. St., NW., Washington, DC, or in one of the
10 OPM regional offices in the following cities:
[[Page 19]]
Atlanta, Boston, Chicago, Dallas, Denver, New York, Philadelphia, St.
Louis, San Francisco and Seattle.
[45 FR 995, Jan. 4, 1980]
PART 177--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT--Table of Contents
Sec.
177.101 Scope of regulations.
177.102 Administrative claim; when presented; appropriate OPM office.
177.103 Administrative claim; who may file.
177.104 Investigations.
177.105 Administrative claim; evidence and information to be submitted.
177.106 Authority to adjust, determine, compromise, and settle.
177.107 Limitations on authority.
177.108 Referral to Department of Justice.
177.109 Final denial of claim.
177.110 Action on approved claim.
Authority: 28 U.S.C. 2672; 28 CFR 14.11.
Source: 65 FR 44945, July 20, 2000, unless otherwise noted.
Sec. 177.101 Scope of regulations.
The regulations in this part apply only to claims presented or filed
with the Office of Personnel Management (OPM) under the Federal Tort
Claims Act, as amended, for money damages against the United States for
injury to or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of an officer or employee of OPM
while acting within the scope of his or her office or employment.
Sec. 177.102 Administrative claim; when presented; appropriate OPM office.
(a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and
2675, a claim is deemed to have been presented when OPM receives from a
claimant, his or her authorized agent or legal representative, an
executed Standard Form 95 (Claim for Damage, Injury or Death), or other
written notification of an incident, accompanied by a claim for money
damages stating a sum certain (a specific dollar amount) for injury to
or loss of property, personal injury, or death alleged to have occurred
as a result of the incident.
(b) All claims filed under the Federal Tort Claims Act as a result
of the alleged negligence or wrongdoing of OPM or its employees will be
mailed or delivered to the Office of the General Counsel, United States
Office of Personnel Management, 1900 E Street NW, Washington, DC 20415-
1300.
(c) A claim must be presented to the Federal agency whose activities
gave rise to the claim. A claim that should have been presented to OPM,
but was mistakenly addressed to or filed with another Federal agency, is
presented to OPM, as required by 28 U.S.C. 2401(b), as of the date the
claim is received by OPM. When a claim is mistakenly presented to OPM,
OPM will transfer the claim to the appropriate Federal agency, if
ascertainable, and advise the claimant of the transfer, or return the
claim to the claimant.
(d) A claimant whose claim arises from an incident involving OPM and
one or more other Federal agencies, will identify each agency to which
the claim has been submitted at the time the claim is presented to OPM.
OPM will contact all other affected Federal agencies in order to
designate the single agency that will investigate and decide the merits
of the claim. In the event a designation cannot be agreed upon by the
affected agencies, the Department of Justice will be consulted and will
designate an agency to investigate and determine the merits of the
claim. The designated agency will notify the claimant that all future
correspondence concerning the claim must be directed to that Federal
agency. All involved Federal agencies may agree to conduct their own
administrative reviews and to coordinate the results, or to have the
investigation conducted by the designated Federal agency. But, in either
event, the designated agency will be responsible for the final
determination of the claim.
(e) A claim presented in compliance with paragraph (a) of this
section may be amended by the claimant at any time prior to final agency
action or prior to the exercise of the claimant's option under 28 U.S.C.
2675(a). Amendments must be in writing and signed by the claimant or his
or her authorized agent or legal representative. Upon timely filing of
an amendment to a pending claim, OPM will have 6 months in which to make
a final disposition of
[[Page 20]]
the claim as amended and claimant's option under 28 U.S.C. 2675 (a) will
not accrue until 6 months after the filing of an amendment.
Sec. 177.103 Administrative claim; who may file.
(a) A claim for injury to or loss of property may be presented by
the owner of the property, his or her authorized agent or legal
representative.
(b) A claim for personal injury may be presented by the injured
person, his or her authorized agent or legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate or by any other person legally
entitled to assert a claim under the applicable State law.
(d) A claim for loss totally compensated by an insurer with the
rights to subrogate may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights to subrogate may be
presented by the insurer or the insured individually, as their
respective interests appear, or jointly. When an insurer presents a
claim asserting the rights to subrogate, he or she will present with the
claim appropriate evidence that he or she has the rights to subrogate.
(e) A claim presented by an agent or legal representative must be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his or her authority to present a
claim on behalf of the claimant as agent, executor, administrator,
parent, guardian, or other representative.
Sec. 177.104 Investigations.
OPM may investigate, or may request any other Federal agency to
investigate, a claim filed under this part.
Sec. 177.105 Administrative claim; evidence and information to be submitted.
(a) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at time of death, including
his or her monthly or yearly salary or earnings (if any), and the
duration of his or her last employment or occupation.
(3) Full names, addresses, birth date, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support from the decedent at the time of death.
(4) Degree of support afforded by the decedent to each survivor
dependent on him or her for support at the time of death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death, or itemized receipts of payment
for such expenses.
(7) If damages for pain and suffering before death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injuries and
death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of the injury, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity. In addition, the claimant may be required to submit to a
physical or mental examination by a physician employed by OPM or another
Federal agency. On written request, OPM will make available to the
claimant a copy of the report of the examining physician employed by the
United States,
[[Page 21]]
provided the claimant has furnished OPM with the report referred to in
the first sentence of this subparagraph. In addition, the claimant must
have made or agrees to make available to OPM all other physician's
reports previously or thereafter made of the physical or mental
condition that is the subject matter of his or her claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his or her employer showing actual time lost from
employment, whether he or she is a full-or part-time employee, and wages
or salary actually lost.
(5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(6) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership of the property.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value, where repair is economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 177.106 Authority to adjust, determine, compromise, and settle.
(a) The General Counsel of OPM, or his or her designee, is delegated
authority to consider, ascertain, adjust, determine, compromise, and
settle claims under the provisions of 28 U.S.C. 2672, and this part. The
General Counsel, in his or her discretion, has the authority to further
delegate the responsibility for adjudicating, considering, adjusting,
compromising, and settling any claim submitted under the provisions of
28 U.S.C. 2672, and this part, that is based on the alleged negligence
or wrongful act or omission of an OPM employee, with the exception of
claims involving personal injury. All claims involving personal injury
will be adjudicated, considered, adjusted, compromised and settled by
the Office of the General Counsel.
Sec. 177.107 Limitations on authority.
(a) An award, compromise, or settlement of a claim under 28 U.S.C.
2672, and this part, in excess of $25,000 can be effected only with the
prior written approval of the Attorney General or his or her designee.
For purposes of this paragraph, a principal claim and any derivative or
subrogated claim will be treated as a single claim.
(b) An administrative claim may be adjusted, determined,
compromised, or settled under this part, only after consultation with
the Department of Justice when, in the opinion of the General Counsel of
OPM, or his or her designee:
(1) A new precedent or a new point of law is involved; or
(2) A question of policy is or may be involved; or
(3) The United States is or may be entitled to indemnity or
contribution from a third party and OPM is unable to adjust the third
party claim; or
(4) The compromise of a particular claim, as a practical matter,
will or may control the disposition of a related claim in which the
amount to be paid may exceed $25,000.
(c) An administrative claim may be adjusted, determined,
compromised, or settled under 28 U.S.C. 2672, and this part, only after
consultation with the Department of Justice when, OPM is informed or is
otherwise aware that
[[Page 22]]
the United States or an employee, agent, or cost-type contractor of the
United States is involved in litigation based on a claim arising out of
the same incident or transaction.
Sec. 177.108 Referral to Department of Justice.
When Department of Justice approval or consultation is required, or
the advice of the Department of Justice is otherwise to be requested,
under Sec. 177.107, the written referral or request will be transmitted
to the Department of Justice by the General Counsel of OPM or his or her
designee.
Sec. 177.109 Final denial of claim.
Final denial of an administrative claim must be in writing and sent
to the claimant, his or her attorney, or legal representative by
certified or registered mail. The notification of final denial may
include a statement of the reasons for the denial. But, it must include
a statement that, if the claimant is dissatisfied with the OPM action,
he or she may file suit in an appropriate United States district court
not later than 6 months after the date of mailing of the notification.
Sec. 177.110 Action on approved claim.
(a) Payment of a claim approved under this part is contingent on
claimant's execution of a Standard Form 95 (Claim for Damage, Injury or
Death); a claims settlement agreement; and a Standard Form 1145 (Voucher
for Payment), as appropriate. When a claimant is represented by an
attorney, the Voucher for Payment will designate both the claimant and
his or her attorney as payees, and the check will be delivered to the
attorney, whose address is to appear on the Voucher for Payment.
(b) Acceptance by the claimant, his or her agent, or legal
representative, of an award, compromise, or settlement made under 28
U.S.C. 2672 or 28 U.S.C. 2677 is final and conclusive on the claimant,
his or her agent or legal representative, and any other person on whose
behalf or for whose benefit the claim has been presented, and
constitutes a complete release of any claim against the United States
and against any employee of the Federal Government whose act or omission
gave rise to the claim, by reason of the same subject matter.
PART 178--PROCEDURES FOR SETTLING CLAIMS--Table of Contents
Subpart A--Administrative Claims--Compensation and Leave, Deceased
Employees' Accounts and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries
Sec.
178.101 Scope of subpart.
178.102 Procedures for submitting claims.
678.103 Claim filed by a claimant's representative.
178.104 Statutory limitations on claims.
178.105 Basis of claim settlements.
178.106 Form of claim settlements.
178.107 Finality of claim settlements.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
178.201 Scope of subpart.
178.202 Definitions.
178.203 Designation of beneficiary.
178.204 Order of payment precedence.
178.205 Procedures upon death of employee.
178.206 Return of unnegotiated Government checks.
178.207 Claims settlement jurisdiction.
178.208 Applicability of general procedures.
Source: 62 FR 68139, Dec. 31, 1997, unless otherwise noted.
Subpart A--Administrative Claims--Compensation and Leave, Deceased
Employees' Accounts and Proceeds of Canceled Checks for Veterans'
Benefits Payable to Deceased Beneficiaries
Authority: 31 U.S.C. 3702; 5 U.S.C. 5583; 38 U.S.C. 5122; Pub. L.
No. 104-53, 211, Nov. 19, 1995; E.O. 12107.
Sec. 178.101 Scope of subpart.
(a) Claims covered. This subpart prescribes general procedures
applicable to claims against the United States that may be settled by
the Director of the Office of Personnel Management pursuant to 31 U.S.C.
3702, 5 U.S.C. 5583 and 38 U.S.C. 5122. In general, these claims involve
Federal employees' compensation and leave and claims for
[[Page 23]]
proceeds of canceled checks for veterans' benefits payable to deceased
beneficiaries.
(b) Claims not covered. This subpart does not apply to claims that
are under the exclusive jurisdiction of administrative agencies pursuant
to specific statutory authority or claims concerning matters that are
subject to negotiated grievance procedures under collective bargaining
agreements entered into pursuant to 5 U.S.C. 7121(a). Also, these
procedures do not apply to claims under the Fair Labor Standards Act
(FLSA). Procedures for FLSA claims are set out in part 551 of this
chapter.
Sec. 178.102 Procedures for submitting claims.
(a) Content of claims. Except as provided in paragraph (b) of this
section, a claim shall be submitted by the claimant in writing and must
be signed by the claimant or by the claimant's representative. While no
specific form is required, the request should describe the basis for the
claim and state the amount sought. The claim should also include:
(1) The name, address, telephone number and facsimile machine
number, if available, of the claimant;
(2) The name, address, telephone number and facsimile machine
number, if available, of the agency employee who denied the claim;
(3) A copy of the denial of the claim; and,
(4) Any other information which the claimant believes OPM should
consider.
(b) Agency submissions of claims. At the discretion of the agency,
the agency may forward the claim to OPM on the claimant's behalf. The
claimant is responsible for ensuring that OPM receives all the
information requested in paragraph (a) of this section.
(c) Administrative report. At OPM's discretion, OPM may request the
agency to provide an administrative report. This report should include:
(1) The agency's factual findings;
(2) The agency's conclusions of law with relevant citations;
(3) The agency's recommendation for disposition of the claim;
(4) A complete copy of any regulation, instruction, memorandum, or
policy relied upon by the agency in making its determination;
(5) A statement that the claimant is or is not a member of a
collective bargaining unit, and if so, a statement that the claim is or
is not covered by a negotiated grievance procedure that specifically
excludes the claim from coverage; and
(6) Any other information that the agency believes OPM should
consider.
(d) Canceled checks for veterans' benefits. Claims for the proceeds
of canceled checks for veterans' benefits payable to deceased
beneficiaries must be accompanied by evidence that the claimant is the
duly appointed representative of the decedent's estate and that the
estate will not escheat.
(e) Where to submit claims. (1) All claims under this section should
be sent to the Program Manager, Office of Merit Systems Oversight and
Effectiveness, Room 7671, Office of Personnel Management, 1900 E Street
NW., Washington, DC 20415. Telephone inquiries regarding these claims
may be made to (202) 606-7948.
(2) FLSA claims should be sent to the appropriate OPM Oversight
Division as provided in part 551 of this chapter.
[62 FR 68139, Dec. 31, 1997, as amended at 65 FR 40967, July 3, 2000]
Sec. 178.103 Claim filed by a claimant's representative.
A claim filed by a claimant's representative must be supported by a
duly executed power of attorney or other documentary evidence of the
representative's right to act for the claimant.
Sec. 178.104 Statutory limitations on claims.
(a) Statutory limitations relating to claims generally. Except as
provided in paragraphs (b) and (c) of this section or as otherwise
provided by law, all claims against the United States Government are
subject to the 6-year statute of limitations contained in 31 U.S.C.
3702(b). To satisfy the statutory limitation, a claim must be received
by the Office of Personnel Management, or by the department or agency
out of
[[Page 24]]
whose activities the claim arose, within 6 years from the date the claim
accrued. The claimant is responsible for proving that the claim was
filed within the applicable statute of limitations.
(b) Claims under the Fair Labor Standards Act. Claims arising under
the FLSA, 29 U.S.C. 207, et seq., must be received by the Office of
Personnel Management, or by the department or agency out of whose
activity the claim arose, within the time limitations specified in the
FLSA.
(c) Other statutory limitations. Statutes of limitation other than
that identified in paragraph (a) of this section may apply to certain
claims. Claimants are responsible for informing themselves regarding
other possible statutory limitations.
Sec. 178.105 Basis of claim settlements.
The burden is upon the claimant to establish the timeliness of the
claim, the liability of the United States, and the claimant's right to
payment. The settlement of claims is based upon the written record only,
which will include the submissions by the claimant and the agency. OPM
will accept the facts asserted by the agency, absent clear and
convincing evidence to the contrary.
Sec. 178.106 Form of claim settlements.
OPM will send a settlement to the claimant advising whether the
claim may be allowed in whole or in part. If OPM requested an agency
report or if the agency forwarded the claim on behalf of the claimant,
OPM also will send the agency a copy of the settlement.
Sec. 178.107 Finality of claim settlements.
(a) The OPM settlement is final; no further administrative review is
available within OPM.
(b) Nothing is this subpart limits the right of a claimant to bring
an action in an appropriate United States court.
Subpart B--Settlement of Accounts for Deceased Civilian Officers and
Employees
Authority: 5 U.S.C. 5581, 5582, 5583.
Sec. 178.201 Scope of subpart.
(a) Accounts covered. This subpart prescribes forms and procedures
for the prompt settlement of accounts of deceased civilian officers and
employees of the Federal Government and of the government of the
District of Columbia (including wholly owned and mixed-ownership
Government corporations), as stated in 5 U.S.C. 5581, 5582, 5583.
(b) Accounts not covered. This subpart does not apply to accounts of
deceased officers and employees of the Federal land banks, Federal
intermediate credit banks, or regional banks for cooperatives (see 5
U.S.C. 5581(1)). Also, these procedures do not apply to payment of
unpaid balance of salary or other sums due deceased Senators or Members
of the House of Representatives or their officers or employees (see 2
U.S.C. 36a, 38a).
Sec. 178.202 Definitions.
(a) The term deceased employees as used in this part includes former
civilian officers and employees who die subsequent to separation from
the employing agency.
(b) The term money due means the pay, salary, or allowances due on
account of the services of the decedent for the Federal Government or
the government of the District of Columbia. It includes, but is not
limited to:
(1) All per diem instead of subsistence, mileage, and amounts due in
reimbursement of travel expenses, including incidental and miscellaneous
expenses which are incurred in connection with the travel and for which
reimbursement is due;
(2) All allowances upon change of official station;
(3) All quarters and cost-of-living allowances and overtime or
premium pay;
(4) Amounts due for payment of cash awards for employees'
suggestions;
(5) Amounts due as refund of salary deductions for United States
Savings bonds;
(6) Payment for all accumulated and current accrued annual or
vacation leave equal to the pay the decedent would have received had he
or she lived and remained in the service until the expiration of the
period of such annual or vacation leave;
[[Page 25]]
(7) The amounts of all checks drawn in payment of such compensation
which were not delivered by the Government to the officer or employee
during his or her lifetime or of any unnegotiated checks returned to the
Government because of the death of the officer or employee; and
(8) Retroactive pay under 5 U.S.C. 5344(b)(2).
Sec. 178.203 Designation of beneficiary.
(a) Agency notification. The employing agency shall notify each
employee of his or her right to designate a beneficiary or beneficiaries
to receive money due, and of the disposition of money due if a
beneficiary is not designated. An employee may change or revoke a
designation at any time under regulations promulgated by the Director of
the Office of Personnel Management or his or her designee.
(b) Designation Form. Standard Form 1152, Designation of
Beneficiary, Unpaid Compensation of Deceased Civilian Employee, is
prescribed for use by employees in designating a beneficiary and in
changing or revoking a previous designation; each agency will furnish
the employee a Standard Form 1152 upon request. In the absence of the
prescribed form, however, any designation, change, or cancellation of
beneficiary witnessed and filed in accordance with the general
requirements of this part will be acceptable.
(c) Who may be designated. An employee may designate any person or
persons as beneficiary. The term person or persons as used in this part
includes a legal entity or the estate of the deceased employee.
(d) Executing and filing a designation of beneficiary form. The
Standard Form 1152 must be executed in duplicate by the employee and
filed with the employing agency where the proper officer will sign it
and insert the date of receipt in the space provided on each part, file
the original, and return the duplicate to the employee. When a
designation of beneficiary is changed or revoked, the employing agency
should return the earlier designation to the employee, keeping a copy of
only the current designation on file.
(e) Effective period of a designation. A properly executed and filed
designation of beneficiary will be effective as long as employment by
the same agency continues. If an employee resigns and is reemployed, or
is transferred to another agency, the employee must execute another
designation of beneficiary form in accordance with paragraph (d) of this
section. A new designation of beneficiary is not required, however, when
an employee's agency or site, function, records, equipment, and
personnel are absorbed by another agency.
Sec. 178.204 Order of payment precedence.
To facilitate the settlement of the accounts of the deceased
employees, money due an employee at the time of the employee's death
shall be paid to the person or persons surviving at the date of death,
in the following order of precedence, and the payment bars recovery by
another person of amounts so paid:
(a) First, to the beneficiary or beneficiaries designated by the
employee in a writing received in the employing agency prior to the
employee's death;
(b) Second, if there is no designated beneficiary, to the surviving
spouse of the employee;
(c) Third, if none of the above, to the child or children of the
employee and descendants of deceased children by representation;
(d) Fourth, if none of the above, to the parents of the deceased
employee or the survivor of them;
(e) Fifth, if none of the above, to the duly appointed legal
representative of the estate of the deceased employee; and
(f) Sixth, if none of the above, to the person or persons entitled
under the laws of the domicile of the employee at the time of his or her
death.
Sec. 178.205 Procedures upon death of employee.
(a) Claim form. As soon as practicable after the death of an
employee, the agency in which the employee was last employed will
request, in the order of precedence outlined in Sec. 178.204, the
appropriate person or persons to execute Standard Form 1153, Claim for
Unpaid Compensation of Deceased Civilian Employee.
[[Page 26]]
(b) Claims involving minors or incompetents. If a guardian or
committee has been appointed for a minor or incompetent appearing
entitled to unpaid compensation, the claim should be supported by a
certificate of the court showing the appointment and qualification of
the claimant in such capacity. If no guardian or committee has been or
will be appointed, the initial claim should be supported by a statement
showing:
(1) Claimant's relationship to the minor or incompetent, if any;
(2) The name and address of the person having care and custody of
the minor or incompetent;
(3) That any moneys received will be applied to the use and benefit
of the minor or incompetent; and
(4) That the appointment of a guardian or committee is not
contemplated.
Sec. 178.206 Return of unnegotiated Government checks.
All unnegotiated United States Government checks drawn to the order
of a decedent representing money due as defined in Sec. 178.202, and in
the possession of the claimant, should be returned to the employing
agency concerned. Claimants should be instructed to return any other
United States Government checks drawn to the order of a decedent, such
as veterans benefits, social security benefits, or Federal tax refunds,
to the agency from which the checks were received, with a request for
further instructions from that agency.
Sec. 178.207 Claims settlement jurisdiction.
(a) District of Columbia and Government corporations. Claims for
unpaid compensation due deceased employees of the government of the
District of Columbia shall be paid by the District of Columbia, and
those of Government corporations or mixed ownership Government
corporations may be paid by the corporations.
(b) Office of Personnel Management. Each agency shall pay undisputed
claims for the compensation due a deceased employee. Except as provided
in paragraph (a) of this section, disputed claims for money due deceased
employees of the Federal Government will be submitted to the Office of
Merit Systems Oversight and Effectiveness, in accordance with
Sec. 178.102 of subpart A. For example:
(1) When doubt exists as to the amount or validity of the claim;
(2) When doubt exists as to the person(s) properly entitled to
payment; or
(3) When the claim involves uncurrent checks. Uncurrent checks are
unnegotiated and/or undelivered checks for money due the decedent which
have not been paid by the end of the fiscal year after the fiscal year
in which the checks were issued. The checks, if available, should
accompany the claims.
(c) Payment of claim. Claims for money due will be paid by the
appropriate agency only after settlement by the Office of Merit Systems
Oversight and Effectiveness occurs.
[62 FR 68139, Dec. 31, 1997, as amended at 65 FR 40967, July 3, 2000]
Sec. 178.208 Applicability of general procedures.
When not in conflict with this subpart, the provisions of subpart A
of this part relating to procedures applicable to claims generally are
also applicable to the settlement of account of deceased civilian
officers and employees.
PART 179--CLAIMS COLLECTION STANDARDS--Table of Contents
Subpart A--General Provisions and Administration
Sec.
179.101 General collection standards.
179.102 Delegation of authority.
Subpart B--Salary Offset
179.201 Purpose.
179.202 Scope.
179.203 Definitions.
179.204 Applicability of regulations.
179.205 Waiver requests and claims to the General Accounting Office.
179.206 Notice requirements before offset.
179.207 Hearing.
179.208 Certification.
179.209 Voluntary repayment agreement as alternative to salary offset.
179.210 Special review.
179.211 Notice of salary offset.
179.212 Procedures for salary offset.
179.213 Coordinating salary offset with other agencies.
[[Page 27]]
179.214 Interest, penalties and administrative costs.
179.215 Refunds.
179.216 Request for the services of a hearing official when the
creditor agency is not OPM.
179.217 Non-waiver of rights by payments.
179.218 Additional administrative collection action.
Subpart C--Administrative Offset
179.301 Scope of regulations.
179.302 Definitions.
179.303 General.
179.304 Notification procedures.
179.305 Agency review.
179.306 Written agreement for repayment.
179.307 Administrative offset.
179.308 Accelerated procedures.
179.309 Additional administrative procedures.
Authority: 31 U.S.C. 952; 5 U.S.C. 1103; Reorganization Plan No. 2
of 1978; 5 U.S.C. 5514; 5 CFR part 550 subpart K; 31 U.S.C. 3701; 31
U.S.C. 3711; 31 U.S.C. 3716; 31 U.S.C. 3720A.
Subpart A--General Provisions and Administration
Sec. 179.101 General collection standards.
The general standards and procedures governing the collection,
compromise, termination, and referral to the Department of Justice of
claims for money and property that are prescribed in the regulations
issued jointly by the General Accounting Office and the Department of
Justice pursuant to the Federal Claims Collection Act of 1966 (4 CFR
part 101 et seq.), apply to the administrative claim collection
activities of OPM.
[33 FR 12406, Sept. 4, 1968]
Sec. 179.102 Delegation of authority.
(a) The Chief Financial Officer and his or her delegates are
designated by the Director and authorized to perform all the duties for
which the Director is responsible under the Debt Collection Act of 1982
and Office of Personnel Management regulations with the exception of
debts arising from the Civil Service Retirement and Disability Fund, the
Employees' Life Insurance Fund, the Retired Federal Employees Health
Benefits Act (74 Stat. 849), and the Employees Health Benefits Fund.
However, the Chief Financial Officer and his or her delegates will
request a review by the General Counsel or his or her designee for all
claims processed (in amounts of $2500 or more) for compromise,
suspension, and termination of collection action.
(b) The Associate Director for Retirement and Insurance and his or
her delegates are designated by the Director and authorized to perform
all the duties for which the Director is responsible under the Debt
Collection Act of 1982 and Office of Personnel Management regulations on
debts caused by payments from the Civil Service Retirement and
Disability Fund (subchapter III of chapter 83 or chapter 84), claims
under the provisions of the Federal Employees' Life Insurance Fund
(chapter 87), the Retired Federal Employees Health Benefits Act (74
Stat. 849), the Employees Health Benefits Fund (chapter 89), the Panama
Canal Construction Annuity Act (58 Stat. 257), and, the Lighthouse
Service Widows' Annuity Act (64 Stat. 465).
[59 FR 35216, July 11, 1994]
Subpart B--Salary Offset
Source: 59 FR 35216, July 11, 1994, unless otherwise noted.
Sec. 179.201 Purpose.
The purpose of the Debt Collection Act of 1982 (Pub. L. 97-365), is
to provide a comprehensive statutory approach to the collection of debts
due the Federal Government. These regulations implement section 5 of the
Act which authorizes the collection of debts owed by Federal employees
to the Federal Government by means of salary offset, except that no
claim may be collected by such means if outstanding for more than 10
years after the agency's right to collect the debt first accrued, unless
facts material to the Government's right to collect were not known, and
could not reasonably have been known, by the official or officials who
were charged with the responsibility for discovery and collection of
such debts. These regulations are consistent with the regulations on
salary offset published by the Office of Personnel Management (OPM) on
July 3, 1984 (49 FR 27470) in 5 CFR part 550, subpart K.
[[Page 28]]
Sec. 179.202 Scope.
(a) These regulations provide procedures for the collection of
monies from a Federal employee's pay by salary offset to satisfy certain
debts owed the Government.
(b) These regulations apply to all collections by the Director of
OPM (except collections involving debts because of payments made from
the Civil Service Retirement and Disability Fund, payments made under
the Retired Federal Employees Health Benefits Act (74 Stat. 849), the
Panama Canal Construction Annuity Act and the Lighthouse Service Widows'
Annuity Act and payments or premiums relating to the Federal Employees'
Life Insurance Fund or the Federal Employees Health Benefits Fund) from:
(1) Federal employees who owe debts to OPM; and
(2) OPM employees who owe debts to other agencies.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) Section 179.207 does not apply to any adjustment to pay arising
from an employee's election of coverage or a change in coverage under a
Federal benefits program requiring periodic deductions from pay, if the
amount to be recovered was accumulated over four pay periods or less.
(e) Nothing in these regulations precludes the compromise,
suspension, or termination of collection actions, where appropriate,
under the standards implementing the Federal Claims Collection Act (31
U.S.C. 3711 et seq., 4 CFR parts 101-105, 38 CFR 1.900 et seq.).
(f) Nothing in these regulations precludes an employee from
requesting a waiver of the debt under applicable statute; under the
standards and procedures specified by the Federal Claims Collection
Standards (FCCS); or waiver of salary overpayment under 5 U.S.C. 5584,
10 U.S.C. 2774, or 32 U.S.C. 716, by submitting a subsequent claim to
the General Accounting Office in accordance with procedures established
by the General Accounting Office.
Sec. 179.203 Definitions.
As used in this subpart the following definitions shall apply:
Agency means:
(1) An Executive Agency as defined by section 105 of title 5, United
States Code;
(2) A military department as defined by section 102 of title 5,
United States Code;
(3) An agency or court of the judicial branch including a court as
defined in section 610 of title 28, United States Code, the District
Court for the Northern Mariana Islands and the Judicial Panel and
Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
Certification means a written debt claim, as prescribed by
Sec. 179.209, that is received from a creditor agency and which requests
the paying agency to offset the salary of an employee.
Claim See debt.
Creditor agency means an agency of the Federal Government to which
the debt is owed. For purposes of this part creditor agency includes
OPM, unless otherwise noted.
Debt means money owed by an employee of the Federal Government to an
agency of the Federal Government, from sources which include loans
insured or guaranteed by the United States and all other amounts due the
Government from fees, leases, rents, royalties, services, sales of real
or personal property, overpayments, penalties, damages, interests, fines
and forfeitures (except those arising under the Uniform Code of Military
Justice) and all other similar sources.
Delinquent means the failure to pay an obligation or debt by the
date specified in the initial notification or applicable contractual
agreement, unless other payment arrangements have been agreed to by OPM
and the debtor by that date, or if, at any time thereafter,
[[Page 29]]
the debtor fails to satisfy the obligations under a payment agreement
with the creditor agency.
Director means the Director of OPM or his or her designee.
Disposable pay means that part of current basic pay, special pay,
incentive pay, retired pay, retainer pay, or, in the case of an employee
not entitled to basic pay, other authorized pay remaining after the
deduction of any amount required by law to be withheld. OPM shall allow
the following deductions, and any others required by law to be withheld,
in determining disposable pay subject to salary offset;
(1) Federal employment taxes;
(2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's
Home;
(3) Fines and forfeitures ordered by a court martial or by a
commanding officer;
(4) Federal, state or local income taxes no greater than would be
the case if the employee claimed all dependents to which he or she is
entitled and such additional amounts for which the employee presents
evidence of a tax obligation supporting the additional withholding;
(5) Amounts withheld from benefits payable under title II of the
Social Security Act where the withholding is required by law;
(6) Amounts deducted for Medicare;
(7) Health insurance premiums;
(8) Normal retirement contributions as explained in 5 CFR 581.105(e)
(e.g., Civil Service Retirement deductions, Survivor Benefit Plan or
Retired Serviceman's Family Protection Plan); and
(9) Normal life insurance premiums (e.g., Serviceman's Group Life
Insurance and basic Federal Employee's Group Life Insurance premiums)
exclusive of optional life insurance premiums.
Employee means a current employee of OPM or other agency, including
a current member of the Armed Forces or Reserve of the Armed Forces of
the United States.
FCCS means the Federal Claims Collection Standards jointly published
by the Department of Justice and the General Accounting Office of 4 CFR
101.1 et seq.
Hearing official means an individual (including an administrative
law judge) responsible for conducting any hearing with respect to the
existence or amount of a debt claimed, and rendering a decision on the
basis of such hearing. A hearing official may not be under the
supervision or control of the Director of OPM when OPM is the creditor
agency.
Notice of intent to offset or notice of intent means a written
notice from a creditor agency to an employee that states the creditor
agency's determination that the employee owes a debt to the creditor
agency and apprises the employee of certain administrative rights.
Notice of salary offset means a written notice from the paying
agency to an employee after a certification has been issued by the
creditor agency, informing the employee that salary offset will begin at
the next officially established pay interval.
Office means the central and regional offices of the Office of
Personnel Management.
Paying agency means the agency of the Federal Government which
employs the individual who owes a debt to an agency of the Federal
Government. In some cases, OPM may be both the creditor agency and the
paying agency.
Payroll office means the payroll office in the paying agency which
is primarily responsible for the payroll records and the coordination of
pay matters with the appropriate personnel office with respect to an
employee. Payroll office, with respect to OPM, means the central payroll
office.
Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deduction(s) at one or more officially established pay
intervals from the current pay account of an employee, without his or
her consent.
Salary Offset Coordinator means an official, designated by the
Director of OPM, who is responsible for coordinating debt collection
activities for OPM.
Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to OPM or another
agency as permitted or required by 5 U.S.C. 5584,
[[Page 30]]
10 U.S.C. 2774, 32 U.S.C. 716, or any other law.
Sec. 179.204 Applicability of regulations.
These regulations are to be followed for all OPM collections (except
those involving retirement, life, and health insurance debts for
recovery by the Associate Director for Retirement and Insurance) in
instances where:
(a) OPM is owed a debt by an individual currently employed by
another agency;
(b) OPM is owed a debt by an individual who is a current employee of
OPM; or
(c) OPM currently employs an individual who owes a debt to another
Federal agency. Upon receipt of proper certification from the creditor
agency, OPM will offset the debtor-employee's salary in accordance with
these regulations.
Sec. 179.205 Waiver requests and claims to the General Accounting Office.
These regulations do not preclude an employee from requesting waiver
of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, 32 U.S.C. 716, or
in any way questioning the amount or validity of a debt by submitting a
subsequent claim to the General Accounting Office in accordance with the
procedures prescribed by the General Accounting Office. These
regulations do not preclude an employee from requesting a waiver
pursuant to other statutory provisions pertaining to the particular debt
being collected.
Sec. 179.206 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency provides the employee with written
notice that he/she owes a debt to the Federal government a minimum of 30
calendar days before salary offset is initiated. When OPM is the
creditor agency, this notice of intent to offset an employee's salary
shall be hand-delivered at work, or sent by registered mail, return
receipt requested, to the employee's most current address that is
available to the Office and will state:
(1) That the creditor agency has reviewed the records relating to
the claim and has determined that a debt is owed, the amount of the
debt, and the facts giving rise to the debt;
(2) The creditor agency's intention to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest are paid in full;
(3) The amount, frequency, beginning date, and duration of the
intended deductions;
(4) An explanation of OPM's policy concerning interest, penalties
and administrative costs including a statement that such assessments
must be made unless excused in accordance with the FCCS, 4 CFR 101.1 et
seq. (Sec. 179.214);
(5) The employee's right to inspect and copy all records of the
office pertaining to the debt claimed, or to request and to receive
copies of such records if personal inspection is impractical;
(6) If not previously provided, the opportunity to establish a
schedule for the voluntary repayment of the debt through offset or to
enter into an agreement to establish a schedule for repayment of the
debt in lieu of offset (4 CFR 102.2(e)). The agreement must contain
terms agreeable to the Office and must be in such form that it is
legally enforceable. The agreement must:
(i) Be in writing;
(ii) Be signed by both the employee and the creditor agency;
(iii) Specify all the terms of the arrangement for payment; and
(iv) Contain a provision accelerating the debt in the event of a
default by the debtor, but such an increase may not result in a
deduction that exceeds 15 percent of the employee's disposable pay
unless the employee has agreed in writing to the deduction of a greater
amount (5 CFR 550.1104(i)).
(7) The right to a hearing conducted by an impartial hearing
official (an administrative law judge, or alternatively, a hearing
official not under the supervision or control of the Director) with
respect to the existence and amount of the debt claimed, or the
repayment schedule (i.e., the percentage of disposable pay to be
deducted each pay period), so long as a petition is
[[Page 31]]
filed by the employee as prescribed in Sec. 179.207;
(8) The method and time period for requesting a hearing;
(9) The name, address and phone number of an official or employee of
the Office who may be contacted concerning procedures for requesting a
hearing;
(10) The name and address of the office to which the petition for a
hearing should be sent;
(11) That a timely and properly filed petition for hearing will stay
the commencement of collection proceedings (a timely filing must be
received in the office specified under paragraph (a)(10) of this section
within 15 calendar days after receipt of such notice of intent to
offset);
(12) That the Office will initiate certification procedures to
implement a salary offset (which may not exceed 15 percent of the
employee's disposable pay) not less than 30 days from the date of
receipt of the notice of debt, unless the employee files a timely
petition for a hearing;
(13) That a final decision on the hearing (if a hearing is
requested) will be issued at the earliest practical date, but not later
than 60 days after the filing of the petition requesting the hearing,
unless the employee requests and the hearing official grants a delay in
the proceedings;
(14) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to;
(i) Disciplinary procedures appropriate under chapter 75 of title 5,
United States code; part 752 of title 5, Code of Federal Regulations; or
any other applicable statute or regulations;
(ii) Penalties under the False Claims Act, sections 3729 through
3731 of title 31, United States Code, or any other applicable statutory
authority; and
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of
title 18, United States code, or any other applicable statutory
authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, amounts paid on or deducted for the debt,
which are later waived or found not owed to the United States, will be
promptly refunded to the employee; and
(17) That proceedings with respect to such debt are governed by
section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).
(b) The Office is not required to comply with paragraph (a) of this
section for any adjustment to pay arising from:
(1) An employee's selection of coverage or a change in coverage
under a Federal benefits program requiring periodic deductions from pay,
if the amount to be recovered was accumulated over four pay periods or
less; or
(2) An employee's consent to make voluntary withholdings from his or
her current pay account.
Sec. 179.207 Hearing.
(a) Request for hearing. Except as provided in paragraph (b) of this
section, an employee who desires a hearing concerning the existence or
amount of the debt or the proposed offset schedule must send such a
request to the office designated in the notice of intent
(Sec. 179.207(a)(10)). The request (or petition) for hearing must be
received by the designated office not later than 15 calendar days
following the employee's receipt of the notice. The employee's request
(or petition) must:
(1) Be signed by the employee;
(2) Fully identify and explain with reasonable specificity all the
facts, evidence and witnesses, if any, that the employee believes
support his or her position; and
(3) Specify whether an oral or paper hearing is requested. If an
oral hearing is desired, the request should explain why the matter
cannot be resolved by review of the documentary evidence alone (4 CFR
102.3(c)).
(b) Failure to timely submit. (1) If the employee files a petition
for a hearing after the expiration of the 15 calendar day period
provided for in paragraph (a) of this section, the Office may accept the
request if the employee can show that the delay was the result of
circumstances beyond his of her control or failure to receive actual
notice
[[Page 32]]
of the filing deadline (unless the employee had actual notice of the
filing deadline).
(2) An employee waives the right to a hearing, and will have his or
her disposable pay offset in accordance with the Office offset schedule,
if the employee:
(i) Fails to file a timely request for a hearing unless such failure
is excused; or
(ii) Fails to appear at an oral hearing of which he or she was
notified unless the hearing official determines that failure to appear
was due to circumstances beyond the employee's control.
(c) Representation at the hearing. The creditor agency may be
represented by legal counsel. The employee may represent himself or
herself or may be represented by an individual of his or her choice and
at his or her expense.
(d) Review of Office records related to the debt. (1) An employee
who intends to inspect or copy creditor agency records related to the
debt, as provided by Sec. 179.207(a)(5), must send a letter to the
official designated in the notice of intent to offset stating his or her
intention. The letter must be received within 15 calendar days after the
employee's receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, arrangements shall be
made to end copies of such records to the employee.
(e) Hearing official. The Office may request an administrative law
judge to conduct the hearing, or the Office may obtain a hearing
official who is not under the supervision or control of the Director of
OPM.
(f) Obtaining the services of a hearing official when OPM is the
creditor agency. (1) When the debtor is not an OPM employee and the
Office cannot provide a prompt and appropriate hearing before a hearing
official furnished pursuant to another lawful arrangement, the Office
may contact an agent of the paying agency designated in 5 CFR part 581,
appendix A, or other individual designated by the paying agency, and
request a hearing official.
(2) When the debtor is an OPM employee, the Office may contact any
agent of another agency designated in 5 CFR part 581, appendix A, or
otherwise designated by that agency, to request a hearing official.
(g) Procedure--(1) General. After the employee requests a hearing,
the hearing official shall notify the employee of the form of the
hearing to be provided. If the hearing will be oral, the notice shall
set forth the date, time and location of the hearing. If the hearing
will be paper, the employee shall be notified that he or she should
submit arguments in writing to the hearing official by a specified date
after which the record shall be closed. This date shall give the
employee reasonable time to submit documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official determines that the
matter cannot be resolved by review of documentary evidence alone (e.g.,
when an issue of credibility or veracity is involved). The hearing is
not an adversarial adjudication and need not take the form of an
evidentiary hearing. Oral hearings may take the form of, but are not
limited to:
(i) Informal conferences with the hearing official, in which the
employee and agency representative will be given full opportunity to
present evidence, witnesses, and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions with an opportunity for oral
presentation.
(3) Paper hearing. If the hearing official determines that an oral
hearing is not necessary, he or she will make a determination based upon
a review of the available written record (4 CFR 102.3(c) (2) and (3)).
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart (4 CFR 102.3(c)(1)(ii)). Witnesses
who testify in oral hearings will do so under oath or affirmation.
[[Page 33]]
(h) Date of decision. The hearing official shall issue a written
opinion stating his or her decision, based upon documentary evidence and
information developed at the hearing, as soon as practicable after the
hearing, but not later than 60 days after the date on which the petition
was received by the creditor agency, unless the employee requests a
delay in the proceedings. In such case the 60-day decision period shall
be extended by the number of days by which the hearing was postponed.
(i) Content of decision. The written decision shall include:
(1) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(2) The hearing official's findings, analysis, and conclusions
including a determination whether the debtor's petition for hearing was
baseless and resulted from an intent to delay creditor agency collection
activity and whether the Office should pursue other actions against the
debtor as provided by 5 CFR 550.1104(d)(11); and
(3) The terms of any repayment schedules, if applicable.
(j) Failure to appear. In the absence of good cause shown (e.g.,
illness), an employee who fails to appear at a hearing shall be deemed,
for the purpose of this subpart, to admit the existence and amount of
the debt as described in the notice of intent. If the representative of
the creditor agency fails to appear, the hearing official shall proceed
with the hearing as scheduled and make his/her determination based upon
the oral testimony presented and the documentary evidence submitted by
both parties. With the agreement of both parties, the hearing official
shall schedule a new hearing date. Both parties shall be given
reasonable notice of the time and place of the new hearing.
Sec. 179.208 Certification.
(a) OPM salary offset coordinator shall provide a certification to
the paying agency in all cases where:
(1) The hearing official determines that a debt exists;
(2) The employee fails to contest the existence and amount of the
debt by failing to request a hearing; or
(3) The employee fails to contest the existence of the debt by
failing to appear at a hearing.
(b) The certification must be in writing and must state:
(1) That the employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Government's right to collect the debt first
accrued;
(4) That the Office's regulations have been approved by OPM pursuant
to 5 CFR part 550, subpart K;
(5) The date on which payment(s) is due;
(6) If the collection is to be made in installments, the number of
installments to be collected, the amount of each installment or
percentage of disposable pay, and the commencement date of the first
installment, if a date other than the next officially established pay
period is required; and
(7) The date(s) of any action(s) taken under 5 U.S.C. 5514(b).
Sec. 179.209 Voluntary repayment agreement as alternative to salary offset.
(a)(1) In response to a notice of intent, an employee may propose to
repay the debt by making voluntary installment payments as an
alternative to salary offset. An employee who wishes to repay a debt
without salary offset shall submit in writing a proposed agreement to
repay the debt. The proposal shall admit the existence of the debt, and
the agreement must be in such form that it is legally enforceable. The
agreement must:
(i) Be in writing;
(ii) Be signed by both the employee and the creditor agency;
(iii) Specify all the terms of the arrangement for payment; and
(iv) Contain a provision accelerating the debt in the event of
default by the debtor, but such an increase may not result in a
deduction that exceeds 15 percent of the employee's disposable pay
unless the employee has agreed in writing to deduction of a greater
amount (5 CFR 550.1104(i)).
(2) Any proposal under paragraph (a) of this section must be
received by the official designated in the notice of intent within 30
calendar days after receipt of the notice.
[[Page 34]]
(b) The creditor agency will review a timely and properly submitted
repayment proposal by the employee debtor and notify the employee
whether the proposed written agreement for repayment is acceptable. It
is within the creditor agency's discretion to accept a repayment
agreement instead of proceeding by offset.
(c) If the creditor agency decides that the proposed repayment
agreement is unacceptable, the employee will have 15 days from the date
he or she received notice of that decision to file a petition for a
hearing or a special review as provided by Sec. 179.210.
(d) If the creditor agency decides that the proposed repayment
agreement is acceptable, the alternative arrangement must be in writing,
signed by both the employee and the creditor agency designee and meet
the other requirements of this section for a voluntary repayment
agreement.
Sec. 179.210 Special review.
(a) An OPM employee subject to salary offset or a voluntary
repayment agreement, may, at any time, request a special review by the
Office of the amount of the salary offset or voluntary payment, based on
materially changed circumstances such as, but not limited to,
catastrophic illness, divorce, death, or disability.
(b) In determining whether an offset would prevent the employee from
meeting essential subsistence expenses (food, housing, clothing,
transportation and medical care), the employee shall submit a detailed
statement and supporting documents for the employee, his or her spouse,
and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
If an OPM employee requests a special review under this section, the
employee shall file an alternative proposed offset or payment schedule
and a statement, with supporting documents (Sec. 179.210(b)), stating
why the current salary offset or payments result in an extreme financial
hardship to the employee.
(c) The Director shall evaluate the statement and supporting
documents, and determine whether the original offset or repayment
schedule imposes an extreme financial hardship on the employee. The
Director shall notify the employee in writing of such determination,
including, if appropriate, a revised offset or repayment schedule.
(d) If the special review results in a revised offset or repayment
schedule, the OPM salary offset coordinator shall provide a new
certification to the payroll office.
Sec. 179.211 Notice of salary offset.
(a) Upon receipt of proper certification from a creditor agency, the
OPM payroll office will send the OPM employee, identified in the
certification as the debtor, a written notice of salary offset. Such
notice shall, at a minimum:
(1) State that OPM has received a properly certified debt claim from
a creditor agency;
(2) Contain a copy of the certification received from the creditor
agency;
(3) Advise the employee that salary offset will be initiated at the
next officially established pay interval; and
(4) State the amount of the claim and amount of deductions.
(b) The payroll office shall provide a copy of the notice to the
creditor agency and advise such agency of the dollar amount to be offset
and the pay period when the offset will begin.
Sec. 179.212 Procedures for salary offset.
(a) The Director or his or her designee shall coordinate salary
deductions under this subpart.
(b) OPM payroll office shall determine the amount of an employee's
disposable pay and implement the salary offset.
(c) Deductions shall begin effective the pay period following
receipt by OPM's payroll office of proper certification of the debt
(Sec. 179.208).
(d) Types of collection. (1) Lump-sum payment. A debt will be
collected in a lump sum if possible. If an employee is financially
unable to pay in one lump sum or the amount of the debt exceeds
[[Page 35]]
15 percent of disposable pay for an officially established pay interval,
collection must be made in installments.
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment and,
except in rare circumstances, not to exceed 3 years. The size and
frequency of installment deductions will bear a reasonable relation to
the size of the debt and the employee's ability to pay. The amount
deducted for any period will not exceed 15 percent of the disposable pay
from which the deduction is made unless the employee has agreed in
writing to the deduction of a greater amount.
(3) Lump-sum deductions from final check. A lump-sum deduction
exceeding the 15 percent disposable pay limitation may be made from any
final salary payment pursuant to 31 U.S.C. 3716 in order to liquidate
the debt, whether the employee is being separated voluntarily or
involuntarily.
(4) Lump-sum deductions from other sources. When an employee subject
to salary offset is separated from OPM and the balance of the debt
cannot be liquidated by offset of the final salary check, the Office,
pursuant to 31 U.S.C. 3716, the FCCS and OPM's implementing regulations,
may offset the balance of the debt against any financial payment due the
employee from the U.S. Government.
(e) Multiple debts. In instances where two or more creditor agencies
are seeking salary offset, or where two or more debts are owed to a
single creditor agency, OPM payroll office may, at its discretion,
determine whether one or more debts should be offset simultaneously
within the 15 percent limitation.
(f) Precedence of debts owed to OPM. For OPM employees, debts owed
to the Office generally take precedence over debts owed to other
agencies. In the event that a debt to the Office is certified while an
employee is subject to a salary offset to repay another agency, the OPM
payroll office may decide whether to have that debt repaid in full
before collecting its claim or whether changes should be made in the
salary deduction being sent to the other agency. If debts owed the
Office can be collected in one pay period, the payroll office may
suspend the salary offset to the other agency for that pay period in
order to liquidate the office debt.
(g) When an employee owes two or more debts, the best interests of
the Government shall be the primary consideration in determining the
order of debt collection. The OPM payroll office, in making this
determination, will be guided primarily by the statute of limitations
that affects the collection of the debt(s).
Sec. 179.213 Coordinating salary offset with other agencies.
(a) Responsibility of OPM as the creditor agency. (1) The Director
or his or her designee shall coordinate debt collections with other
agencies and shall, as appropriate:
(i) Arrange for a hearing or special review upon proper petitioning
by a Federal employee; and
(ii) Prescribe, upon consultation with the General Counsel, such
additional practices and procedures as may be necessary to carry out the
intent of this regulation.
(2) The designated salary offset coordinator will be responsible
for:
(i) Ensuring that each notice of intent to offset is consistent with
the requirements of Sec. 179.206;
(ii) Ensuring that each certification of debt that is sent to a
paying agency is consistent with the requirements of Sec. 179.208;
(iii) Obtaining hearing officials from other agencies pursuant to
Sec. 179.207(f); and
(iv) Ensuring that hearings are properly scheduled.
(3) Requesting recovery from current paying agency. Upon completion
of the procedures established in these regulations and pursuant to 5
U.S.C. 5514, the Office must:
(i) Certify, in writing, to the paying agency that the employee owes
the debt, the amount and basis of the debt, the date on which payment(s)
is due, the date the Government's right to collect the debt first
accrued, and that the Office's regulations implementing 5 U.S.C. 5514
have been approved by the Office of Personnel Management;
(ii) Advise the paying agency of the amount or percentage of
disposable pay to be collected in each installment and
[[Page 36]]
the number and commencing date of the installments (if a date other than
the next officially established pay period is required);
(iii) Advise the paying agency of the action(s) taken under 5 U.S.C.
5514(b) and give the date(s) and action(s) was taken (unless the
employee has consented to the salary offset in writing or signed a
statement acknowledging receipt of the required procedures and the
written consent or statement is forwarded to the paying agency);
(iv) Submit a debt claim certification containing the information
specified in paragraphs (a)(3)(i), (a)(3)(ii) and (a)(3)(iii) of this
section and an installment agreement (or other instruction on the
payment schedule), if applicable, to the employee's paying agency; and
(v) Submit the debt claim, as provided in Sec. 179.208, to the
employee's paying agency for collection if the employee is in the
process of separating, and has not received a final salary check, or
other final payment(s) from the paying agency. The paying agency must
certify the total amount of its collection on the debt and send a copy
of the certification to the employee and another copy to the creditor
agency. If the paying agency's collection does not fully satisfy the
debt, and the paying agency is aware that the debtor is entitled to
payments from the Civil Service Retirement and Disability Fund or other
similar payments that may be due the debtor employee from other Federal
Government sources, the paying agency will provide written notification
of the outstanding debt to the agency responsible for making such other
payments to the debtor employee. The written notification shall state
that the employee owes a debt (including the amount) and that the
provisions of this section have been fully complied with. The Office
must submit a properly certified claim to the agency responsible for
making such payments before the collection can be made.
(4) Separated employee. If the employee is already separated and all
payments due from his or her former paying agency have been paid, the
Office may request, unless otherwise prohibited, that money due and
payable to the employee from the Civil Service Retirement and Disability
Fund (5 CFR 831.1801 et seq. or 5 CFR 845.401 et seq.) or other similar
funds, be administratively offset to collect the debt (31 U.S.C. 3716
and the FCCS).
(5) Employee transfer. When an employee transfers from one paying
agency to another paying agency, the Office is not required to repeat
the due process procedures described in 5 U.S.C. 5514 and this subpart
to resume the collection. The Office will submit a properly certified
claim to the new paying agency and will subsequently review the debt to
make sure the collection is resumed by the new paying agency.
(b) Responsibility of the Office as the paying agency--(1) Complete
claim. When the Office receives a certified claim from a creditor
agency, deductions should be scheduled to begin at the next officially
established pay interval. Before deductions can begin, the employee must
receive written notice from the Office including:
(i) A statement that the Office has received a certified debt claim
from the creditor agency;
(ii) The amount of the debt claim;
(iii) The date salary offset deductions will begin, and
(iv) The amount of such deductions.
(2) Incomplete claim. When the Office receives an incomplete
certification of debt from a creditor agency, the Office must return the
debt claim with notice that procedures under 5 U.S.C. 5514 and 5 CFR
550.1101 et seq. must be followed and a properly certified debt claim
received before action will be taken to collect from the employee's
current pay account.
(3) Review. The Office is not authorized to review the merits of the
creditor agency's determination with respect to the amount or validity
of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If,
after the creditor agency has submitted the debt claim to the Office,
the employee transfers from OPM to a different paying agency before the
debt is collected in full, the Office will certify the total amount
collected on the debt. One copy of the certification will be furnished
to
[[Page 37]]
the employee and one copy to the creditor agency along with notice of
the employee's transfer.
Sec. 179.214 Interest, penalties and administrative costs.
The office shall assess interest, penalties and administrative costs
on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR part 101.1 et seq.
Penalties and administrative costs will be assessed on all delinquent
debts.
(a) In cases of default on a previous repayment agreement, the
Office reserves the right to set a new interest rate which reflects the
current value of funds to the Treasury at the time a new repayment
agreement is executed.
(b) The Office, on a case-by-case basis, may waive all interest
accrued on debts paid in full within 60 days of the due date if there is
no indication of fault or lack of good faith on the part of the debtor.
(c) The Office may waive, in whole or in part, the collection of
interest, penalties, and/or administrative costs assessed under this
section under the criteria specified in part 103 of 4 CFR, chapter II,
relating to the compromise of claims (without regard to the amount of
the debt).
(d) The Office may waive, in whole or in part, the collection of
interest, penalties, and/or administrative costs assessed under this
section if the Office determines that collection of these charges would
be against equity and good conscience or not in the best interests of
the United States.
(e) The Office shall waive the accrual of interest pending
consideration of a request for reconsideration, administrative review,
or waiver of the underlying debt under provisions of a permissive
statute providing for such review related to the debt.
(f) The Office shall waive interest on repayment agreements when the
amount of interest accruing equals or exceeds the amount of installments
the debtor can reasonably afford and there is no indication of fault or
lack of good faith on the part of the debtor.
Sec. 179.215 Refunds.
(a) The Office shall promptly refund any amounts deducted under the
authority of 5 U.S.C. 5514 when:
(1) The debt is waived or otherwise found not to be owing the United
States (unless expressly prohibited by statute or regulation); or
(2) An administrative or judicial order directs the Office to make a
refund.
(b) Unless required or permitted by law or contract, refunds under
this subsection shall not bear interest.
Sec. 179.216 Request for the services of a hearing official when the creditor agency is not OPM.
(a) The Office will provide a hearing official upon request of the
creditor agency when the debtor is employed by the Office and the
creditor agency cannot provide a prompt and appropriate hearing before a
hearing official furnished pursuant to another lawful arrangement.
(b) The salary offset coordinator will secure qualified personnel to
serve as hearing officials.
(c) Services rendered under this section will be provided on a fully
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31
U.S.C. 1535.
Sec. 179.217 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
collected under this subpart must not be construed as a waiver of any
rights which the employee may have under 5 U.S.C. 5514 or any other
provision of contract or law unless there are statutory or contractual
provisions to the contrary.
Sec. 179.218 Additional administrative collection action.
Nothing contained in this subpart is intended to preclude the use of
any other administrative remedy which may be appropriate.
Subpart C--Administrative Offset
Source: 59 FR 35214, July 11, 1994, unless otherwise noted.
Sec. 179.301 Scope of regulations.
These regulations apply to the collection of debts owed to the
United States arising from transactions with OPM other than those
involving payments
[[Page 38]]
made from the Civil Service Retirement and Disability Fund (the Fund),
or where a request for an offset from OPM's administrative accounts--
other than the Fund--is received by OPM from another Federal agency.
Regulations for other agencies to request OPM's Retirement and Insurance
Group to recover a debt from the Fund are provided at subpart R of part
831 and subpart D of part 845 of title 5, Code of Federal Regulations.
These regulations are consistent with the Federal Claims Collection
Standards on Administrative Offset issued jointly by the Department of
Justice and the General Accounting Office as set forth in 4 CFR 102.3.
Sec. 179.302 Definitions.
Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means
withholding money payable by the United States Government to, or held by
the Government for, a person to satisfy a debt the person owes the
Government.
Person, includes a natural person or persons, profit or non-profit
corporation, partnership, association, trust, estate, consortium, or
other entity which is capable of owing a debt to the United States
Government except that agencies of the United States, or of any State or
local government, shall be excluded.
Sec. 179.303 General.
(a) The Director or his or her designee, after attempting to collect
a debt from a person under section 3(a) of the Federal Claims Collection
Act of 1966, as amended (31 U.S.C. 3711(a)), may collect the debt by
administrative offset subject to the following:
(1) The debt is certain in amount; and
(2) It is in the best interest of the United States to collect the
debt by administrative offset because it is less costly and speeds
payment of the debt;
(b) The Director, or his or her designee, may initiate
administrative offset with regard to debts owed by a person to another
agency of the United States Government, upon receipt of a request from
the head of another agency, or his or her designee, and a certification
that the debt exists and that the person has been afforded the necessary
due process rights.
(c) The Director, or his or her designee, may request another agency
that holds funds payable to an OPM debtor to offset the debt against the
funds held and will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) If the 6-year period for bringing action on a debt provided in
28 U.S.C. 2415 has expired, then administrative offset may be used to
collect the debt only if the costs of bringing such action are likely to
be less than the amount of the debt.
(e) No collection by administrative offset shall be made on any debt
that has been outstanding for more than 10 years unless facts material
to the Government's right to collect the debt were not known, and
reasonably could not have been known, by the official or officials
responsible for discovering and collecting such debt.
(f) These regulations do not apply to:
(1) A case in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute.
(2) Debts owed to OPM by other agencies of the United States or by
any State or local government.
Sec. 179.304 Notification procedures.
Before collecting any debt through administrative offset, a notice
of intent to offset shall be sent to the debtor by certified mail,
return receipt requested, at the most current address that is available
to OPM. The notice shall provide:
(a) A description of the nature and amount of the debt and the
intention of OPM to collect the debt through administrative offset;
(b) An opportunity to inspect and copy the records of OPM with
respect to the debt;
(c) An opportunity for review within OPM concerning OPM's
determinations with respect to the debt; and
(d) An opportunity to enter into a written agreement for the
repayment of the amount of the debt.
Sec. 179.305 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
the
[[Page 39]]
debt, or the terms of repayment. The request to review a disputed debt
must be received by the OPM official identified in the notification
within 30 calendar days of the debtor's receipt of the written notice
described in Sec. 179.304.
(b) If the debtor requests an opportunity to inspect or copy OPM's
records concerning the disputed claim, 10 business days will be granted
for the review. The time period will be measured from the time the
request for inspection is granted or from the time the copy of the
records is received by the debtor.
(c) Pending the resolution of a dispute initiated by the debtor,
transactions in any of the debtor's account(s) maintained in OPM may be
temporarily suspended to the extent of the debt that is owed. Depending
on the type of transaction, the suspension could preclude payment,
removal, or transfer, as well as prevent the payment of interest or
discount due thereon. Should the dispute be resolved in the debtor's
favor, the suspension will be lifted immediately.
(d) During the review period, interest, penalties, and
administrative costs authorized under the Federal Claims Collection Act
of 1966, as amended, will continue to accrue.
Sec. 179.306 Written agreement for repayment.
A debtor who admits liability but elects not to have the debt
collected by administrative offset will be afforded an opportunity to
negotiate a written agreement for the repayment of the debt. If the
financial condition of the debtor does not support the ability to pay in
one lump-sum, reasonable installments may be considered. No installment
arrangement will be considered unless the debtor submits a financial
statement, executed under penalty of perjury, reflecting the debtor's
assets, liabilities, income, and expenses. The financial statement must
be submitted within 10 business days of OPM's request for the statement.
At OPM's option, a confess-judgment note or bond of indemnity with
surety may be required for the installment agreement. Notwithstanding
the provisions of this section, any reduction or compromise of a claim
will be governed by 4 CFR part 103 and 31 U.S.C. 3711.
Sec. 179.307 Administrative offset.
(a) If the debtor does not exercise the right to request a review
within the time specified in Sec. 179.305 or, if as a result of the
review, it is determined that the debt is due and no written agreement
is executed, then administrative offset shall be ordered in accordance
with these regulations without further notice.
(b) Request for offset to a Federal agency: The Director or his or
her designee may request that funds due and payable to a debtor by a
Federal agency be administratively offset in order to collect a debt
owned to OPM by that debtor. In requesting administrative offset OPM, as
creditor, will certify in writing to the Federal agency holding funds of
the debtor:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That OPM has complied with the requirements of 31 U.S.C. 3716,
its own administrative offset regulations, and the applicable provisions
of 4 CFR part 102 with respect to providing the debtor with due process.
(c) Request for offset from a Federal agency: When administrative
offset is authorized, any Federal creditor agency may request OPM to
make an administrative offset from any OPM funds that are due and
payable to a creditor agency's debtor. OPM shall initiate the requested
administrative offset only upon:
(1) Receipt of written certification from the creditor agency:
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise of
administrative offset; and
(iv) That the agency has complied with its own administrative offset
regulations and with the applicable provisions of 4 CFR part 102,
including providing any required hearing or review.
(2) A determination by OPM that collection by offset against funds
payable by OPM would not otherwise be contrary to law.
[[Page 40]]
Sec. 179.308 Accelerated procedures.
OPM may make an administrative offset against a payment to be made
to the debtor prior to the completion of the procedures required by
Sec. Sec. 179.304 and 179.305 if failure to take the offset would
substantially jeopardize OPM's ability to collect the debt, and the time
before the payment is to be made does not reasonably permit the
completion of those procedures. Such prior offset shall be promptly
followed by the completion of those procedures. Amounts recovered by
offset but later found not to be owed to OPM shall be promptly refunded.
Sec. 179.309 Additional administrative procedures.
Nothing contained in this chapter is intended to preclude the use of
any other administrative remedy which may be available.
PART 180--EMPLOYEES' PERSONAL PROPERTY CLAIMS--Table of Contents
Sec.
180.101 Scope and purpose.
180.102 Claimants.
180.103 Time limitations.
180.104 Allowable claims.
180.105 Claims not allowed.
180.106 Claims involving carriers and insurers.
180.107 Claims procedure.
180.108 Settlement of claims.
Authority: Sec. 3, 78 Stat. 767, as amended; 31 U.S.C. 241.
Source: 43 FR 47163, Oct. 13, 1978, unless otherwise noted.
Sec. 180.101 Scope and purpose.
(a) The Military Personnel and Civilian Employees' Claims Act of
1964, 31 U.S.C. 240 to 243, authorizes the Director, Office of Personnel
Management to settle and pay (including replacement in kind) claims of
officers and employees of OPM, amounting to not more than $15,000, for
damage to or loss of personal property incident to their service. Claims
are payable only for such types, quantities, or amounts of tangible
personal property (including money) as the approving authority shall
determine to be reasonable, useful, or proper under the circumstances
existing at the time and place of the loss. In determining what is
reasonable, useful, or proper, the approving authority will consider the
type and quantity of property involved, circumstances attending
acquistion and use of the property, and whether possession or use by the
claimant at the time of damage or loss was incident to service.
(b) The Government does not underwrite all personal property losses
that a claimant may sustain and it does not underwrite individual
tastes. While the Government does not attempt to limit possession of
property by an individual, payment for damage or loss is made only to
the extent that the possession of the property is determined to be
reasonable, useful, or proper. If individuals possess excessive
quantities of items, or expensive items, they should have such property
privately insured.
Sec. 180.102 Claimants.
(a) The following are proper claimants:
(1) Officers and employees of OPM;
(2) Former officers and employees of OPM whose claims arose out of
incidents which occurred before their separation;
(3) The authorized agent or legal representative of persons in
Secs. 180.102(a)(1) and 180.102(a)(2);
(4) Survivors of persons in Secs. 180.102(a)(1) and 180.102(a)(2) in
the following order of precedence:
(i) Spouse,
(ii) Children,
(iii) Father or mother, or both,
(iv) Brothers or sisters, or both.
(b) A claim may not be presented by or for the benefit of a
subrogee, assignee, conditional vendor, or other third party.
Sec. 180.103 Time limitations.
A claim must be presented in writing within 2 years after it
accrues, except during war or armed conflict. If war or armed conflict
occurs within the 2-year period following accrual, when claimant shows
good cause, the claim may be presented within 2 years after the cause
ceases to exist but not more than 2 years after termination of the war
or armed conflict. A claim accrues when loss or damage is or should have
been discovered by claimant even though
[[Page 41]]
such loss or damage occurred at a prior time.
Sec. 180.104 Allowable claims.
(a) A claim may be allowed only if:
(1) The damage or loss was not caused wholly or partly by the
negligent or wrongful act of the claimant, claimant's agent, a member of
claimant's family, or claimant's private employee (the standard to be
applied is that of reasonable care under the circumstances);
(2) The possession of the property damaged or lost and the quantity
possessed is determined to have been reasonable, useful, or proper under
the circumstances; and
(3) The claim is substantiated by proper and convincing evidence.
(b) Claims which are otherwise allowable under this part shall not
be disallowed solely because the property was not in the possession of
the claimant at the time of the damage or loss or solely because the
claimant was not legal owner of the property for which the claim is
made. For example, borrowed property may be the subject of a claim.
(c) Subject to the conditions in Sec. 180.104(a) and the other
provisions of this part, any claim for damage to or loss of personal
property incident to service with OPM may be considered and allowed. The
following are examples of the principal types of claims which may be
allowed. These examples are not exclusive and other types of claims may
be allowed unless excluded by Sec. 180.106:
(1) Property damaged or lost in quarters. Claims may be allowed for
damage to or loss of property located at:
(i) Quarters within the 50 States and the District of Columbia that
were assigned to the claimant or otherwise provided in kind by the
United States;
(ii) Quarters outside the 50 States and the District of Columbia
that were occupied by the claimant, whether or not they were assigned or
otherwise provided in kind by the United States, except when the
claimant is a local inhabitant; or
(iii) Any warehouse, office, working area, or other place (except
quarters) authorized or apparently authorized for the reception or
storage of property.
(2) Transportation or travel losses. Claims may be allowed for
damage to or loss of property incident to transportation or storage
pursuant to orders, or in connection with travel under orders, including
property in custody of a carrier, an agent or agency of the Government,
or the claimant.
(3) Motor vehicles. Claims may be allowed for automobiles and other
motor vehicles damaged or lost in oversea shipments provided by the
Government. ``Shipments provided by the Government'' means via
Government vessels, charter of commercial vessels, or by Government
bills of lading on commercial vessels, and includes storage, unloading,
and off-loading incident thereto. Other claims for damage to or loss of
automobiles and other motor vehicles may be allowed only when use of the
vehicle on a non-reimbursable basis was required by the claimant's
supervisor.
(4) Mobile homes. Claims may be allowed for damage to or loss of
mobile homes and their contents under the provisions of
Sec. 180.104(c)(2). Claims for structural damage to mobile homes, other
than that caused by collision, and damage to contents of mobile homes
resulting from such structural damage must contain conclusive evidence
that the damage was not caused by structural deficiency of the mobile
home and that it was not overloaded. Claims for damage to or loss of
tires mounted on mobile homes may be allowed only in cases of collision,
theft, or vandalism.
(5) Money. Claims for money in an amount that is determined to be
reasonable for the claimant to possess at the time of the loss are
payable:
(i) Where personal funds were accepted by responsible Government
personnel with apparent authority to receive them for safekeeping
deposit, transmittal, or other authorized disposition, but were neither
applied as directed by the owner nor returned;
(ii) When lost incident to a marine or aircraft disaster;
(iii) When lost by fire, flood, hurricane, or other natural
disaster;
(iv) When stolen from the quarters of the claimant where it is
conclusively shown that the money was in a locked
[[Page 42]]
container and that the quarters themselves were locked;
(v) When taken by force from the claimant's person.
(6) Clothing. Claims may be allowed for clothing and accessories
worn on the person which are damaged or lost:
(i) During the performance of official duties in an unusual or
extraordinary-risk situation;
(ii) In cases involving emergency action required by natural
disaster such as fire, flood, hurricane, or by enemy or other
belligerent action;
(iii) In cases involving faulty equipment or defective furniture
maintained by the Government and used by the claimant as required by the
job situation; or
(iv) When using a motor vehicle.
(7) Property used for benefit of the Government. Claims may be
allowed for damage to or loss of property (except motor vehicles) used
for the benefit of the Government at the request of, or with the
knowledge and consent of, superior authority or by reason of necessity.
(8) Enemy action or public service. Claims may be allowed for damage
to or loss of property as a direct consequence of:
(i) Enemy action or threat thereof, or combat, guerilla, brigandage,
or other belligerent activity, or unjust confiscation by a foreign power
or its nationals;
(ii) Action by the claimant to quiet a civil disturbance or to
alleviate a public disaster; or
(iii) Efforts by the claimant to save human life or Government
property.
(9) Marine or aircraft disaster. Claims may be allowed for personal
property damaged or lost as a result of marine or aircraft disaster or
accident.
(10) Government property. Claims may be allowed for property owned
by the United States only when the claimant is financially responsible
to an agency of the Government other than OPM.
(11) Borrowed property. Claims may be allowed for borrowed property
that has been damaged or lost.
Sec. 180.105 Claims not allowed.
(a) A claim is not allowable if:
(1) The damage or loss was caused wholly or partly by the negligent
or wrongful act of the claimant, claimant's agent, claimant's employee,
or a member of claimant's family;
(2) The damage or loss occurred in quarters occupied by the claimant
within the 50 States and the District of Columbia that were not assigned
to the claimant or otherwise provided in kind by the United States;
(3) Possession of the property lost or damaged was not incident to
service or not reasonable or proper under the circumstances.
(b) In addition to claims falling within the categories of
Sec. 180.105(a), the following are examples of claims which are not
payable:
(1) Claims not incident to service. Claims which arose during the
conduct of personal business are not payable.
(2) Subrogation claims. Claims based upon payment or other
consideration to a proper claimant are not payable.
(3) Assigned claims. Claims based upon assignment of a claim by a
proper claimant are not payable.
(4) Conditional vendor claims. Claims asserted by or on behalf of a
conditional vendor are not payable.
(5) Claims by improper claimants. Claims by persons not designated
in Sec. 180.102(a) are not payable.
(6) Small items of substantial value. Claims are not payable for
money or for small articles of substantial value, such as watches or
expensive jewelry, when shipped with household goods or as unaccompanied
baggage.
(7) Articles of extraordinary value. Claims are not payable for
expensive articles of gold, silver, other precious metals, paintings,
antiques other than bulky furnishings, relics, and other articles of
extraordinary value when shipped with household goods by ordinary means
or as unaccompanied baggage at normal released valuation. Claims for
such articles are payable when their loss is incident to shipment by
expedited mode in accordance with current joint travel regulations. This
prohibition does not apply to articles in the personal custody of the
claimant or articles properly checked, provided that reasonable
protection or security measures have been taken by the claimant.
[[Page 43]]
(8) Articles acquired for other persons. Claims are not payable for
articles intended directly or indirectly for persons other than the
claimant or members of the claimant's immediate household. This
prohibition includes articles acquired at the request of others and
articles for sale.
(9) Property used for business. Claims are not payable for property
normally used for business or profit.
(10) Unserviceable property. Claims are not payable for wornout or
unserviceable property.
(11) Violation of law or directive. Claims are not payable for
property acquired, possessed, or transported in violation of law,
regulation, or other directive. This does not apply to limitations
imposed on the weight of shipments of household goods.
(12) Intangible property. Claims are not payable for intangible
property such as bank books, checks, promissory notes, stock
certificates, bonds, bills of lading, warehouse receipts, baggage
checks, insurance policies, money order, and traveler's checks.
(13) Government property. Claims are not payable for property owned
by the United States unless the claimant is financially responsible for
the property to an agency of the Government other than OPM.
(14) Motor vehicles. Claims for motor vehicles, except as provided
for by Sec. 180.104(c)(3), will ordinarily not be paid. However, in
exceptional cases, meritorius claims for damage to or loss of motor
vehicles may be recommended to the Office of the General Counsel for
consideration and approval for payment.
(15) Enemy property. Claims are not payable for enemy property,
including war trophies.
(16) Losses recoverable from carrier. Claims are not payable for
losses, or any portion thereof, which have been recovered or are
recoverable from a carrier, except as permitted under Sec. 180.106.
(17) Losses recoverable from insurer. Claims are not payable for
losses, or any portion thereof, which have been recovered or are
recoverable from an insurer, except as permitted under Sec. 180.106.
(18) Losses recoverable from contractor. Claims are not payable for
losses, or any portion thereof, which have been recovered or are
recoverable under contract, except as permitted under Sec. 180.106.
(19) Fees for estimates. Claims are not normally payable for fees
paid to obtain estimates of repair in conjuction with submitting a claim
under this part. However, where, in the opinion of the approving
authority, the claimant could not obtain an estimate without paying a
fee, such a claim may be considered in an amount reasonable in relation
to the value or the cost of repairs of the articles involved, provided
that the evidence furnished clearly indicates that the amount of the fee
paid will not be deducted from the cost of repairs if the work is
accomplished by the estimator.
(20) Items fraudulently claimed. Claims are not payable for items
fraudulently claimed. When investigation discloses that a claimant,
claimant's agent, claimant's employee, or member of claimant's family
has intentionally misrepresented an item claimed as to cost, condition,
cost to repair, etc., the item will be disallowed in its entirety even
though some actual damage has been sustained. However, if the remainder
of the claim is proper it will be paid. This does not preclude
appropriate disciplinary action if warranted.
Sec. 180.106 Claims involving carriers and insurers.
(a) Claimants must comply with the following before presenting
claims involving a carrier or insurer:
(1) Whenever property is damaged or lost while being shipped
pursuant to authorized travel orders, the owner must file a written
claim for reimbursement with the carrier according to the terms of its
bill of lading or contract before submitting a claim against the
Government. The claimant may present a claim to the Government
immediately after making demand on the carrier.
(2) Whenever property which is damaged or lost incident to the
claimant's service is insured in whole or in part,
[[Page 44]]
the claimant must make a written demand against the insurer for
reimbursement under the terms and conditions of the insurance coverage.
Such demand should be made within the time limit provided in the policy
and prior to the filing of a claim against the Government. The claimant
may present a claim to the Government immediately after making demand on
the insurer.
(b) If the claimant fails to make the required demand on the carrier
or insurer or make reasonable efforts to collect the amount recoverable,
the amount payable under the provisions of these regulations shall be
reduced by the maximum amount recoverable. However, no deduction will be
made if the circumstances of the claimant's service were such as to
preclude timely filing of the claim with the carrier or insurer and it
is determined that a demand would have been impracticable or unavailing
in any event.
(c) When a claim is paid by OPM, the claimant will assign to the
United States, to the extent of any payment on the claim accepted by
claimant, all rights, title, and interest in any claim against any
carrier, insurer, or other party arising out of the incident on which
the claim against the United States is based. On request, the claimant
also will furnish such evidence as may be required to enable the United
States to enforce the claim.
(d) After payment of a claim by the United States, if the claimant
receives any payment from a carrier, contractor, insurer, or other third
party, the claimant will pay the proceeds to the United States to the
extent of the payment received by the claimant from the United States.
Sec. 180.107 Claims procedure.
(a) Filing a claim. Claims not exceeding $500 shall be filed with
the appropriate bureau or regional director. Claims in excess of $500
shall be filed with the Office of the General Counsel, Office of
Personnel Management, 1900 E Street NW., Washington, DC 20415. Claims
shall be in writing, using G.C. Form 33 when available, and shall
contain as a minimum:
(1) Name, address, and place of employment of the claimant;
(2) Place and date of the damage or loss;
(3) A brief statement of the facts and circumstances surrounding the
damage or loss;
(4) Cost, date, and place of acquisition of each piece of property
damaged or lost;
(5) Two itemized repair estimates, or value estimates, whichever is
applicable;
(6) Copies of police reports, if applicable;
(7) A statement from the claimant's supervisor that the loss was
incident to service;
(8) A statement that the property was or was not insured;
(9) With respect to claims involving thefts or losses in quarters or
other places where the property was reasonably kept, a statement as to
what security precautions were taken to protect the property involved;
(10) With respect to claims involving property being used for the
benefit of the Government, a statement by the claimant's supervisor that
the claimant was required to provide such property or that the
claimant's providing it was in the interest of the Government; and
(11) Other evidence as may be required.
(b) Single claim. A single claim shall be presented for all lost or
damaged property resulting from the same incident. If this procedure
causes a hardship, the claimant may present an initial claim with notice
that it is a partial claim, an explanation of the circumstances causing
the hardship, and an estimate of the balance of the claim and the date
it will be submitted. Payment may be made on a partial claim if the
approving authority determines that a genuine hardship exists.
(c) Claims investigator. When a claim is filed, the appropriate
associate or regional director, or the General Counsel, shall appoint a
claims investigator to evaluate the claim and make a recommendation as
to its disposition. Where the cost to repair damaged property does not
exceed $100 per item and the claims investigator has inspected the
damaged property, the claimant and the approving authority may agree
upon a reasonable amount to be
[[Page 45]]
claimed for repair of an individual item in lieu of an independent
estimate by a qualified repairman. In such a case, the claims
investigator and the approving authority will certify that the property
has been examined and that the amount claimed is a reasonable allowance
for the cost of the repairs.
(d) Loss in quarters. Claims for property loss in quarters or other
authorized places should be accompanied by a statement indicating:
(1) Geographical location;
(2) Whether the quarters were assigned or provided in kind by the
Government;
(3) Whether the quarters are regularly occupied by the claimant;
(4) Name of the authority, if any, who designated the place of
storage of the property if other than quarters;
(5) Measures taken to protect the property; and
(6) Whether the claimant is a local inhabitant.
(e) Loss by theft or robbery. Claims for property loss by theft or
robbery should be accompanied by a statement indicating:
(1) Geographical location;
(2) Facts and circumstances surrounding the loss, including evidence
of the crime such as breaking and entering, capture of the thief or
robber, or recovery of part of the stolen goods; and
(3) Evidence that the claimant exercised due care in protecting the
property prior to the loss, including information as to the degree of
care normally exercised in the locale of the loss due to any unusual
risks involved.
(f) Transportation losses. Claims for transportation losses should
be accompanied by the following:
(1) Copies of orders authorizing the travel, transportation, or
shipment or a certificate explaining the absence of orders and stating
their substance;
(2) Statement in cases where property was turned over to a shipping
officer, supply officer, or contract packer indicating:
(i) Name (or designation) and address of the shipping officer,
supply officer, or contract packer;
(ii) Date the property was turned over;
(iii) Inventoried condition when the property was turned over;
(iv) When and where the property was packed and by whom;
(v) Date of shipment;
(vi) Copies of all bills of lading, inventories, and other
applicable shipping documents;
(vii) Date and place of delivery to the claimant;
(viii) Date the property was unpacked by the carrier, claimant, or
Government;
(ix) Statements of disinterested witnesses as to the condition of
the property when received and delivered, or as to handling or storage;
(x) Whether the negligence of any Government employee acting within
the scope of his employment caused the damage or loss;
(xi) Whether the last common carrier or local carrier was given a
clear receipt, except for concealed damages;
(xii) Total gross, tare, and net weight of shipment;
(xiii) Insurance certificate or policy if losses are privately
insured;
(xiv) Copy of the demand on carrier or insured, or both, when
required, and the reply, if any;
(xv) Action taken by the claimant to locate missing baggage or
household effects, including related correspondence.
(g) Marine or aircraft disaster. Claims for property losses due to
marine or aircraft disaster should be accompanied by a copy of orders or
other evidence to establish the claimant's right to be, or to have
property, on board.
(h) Enemy action, public disaster, or public service. Claims for
property losses due to enemy action, public disaster, or public service
should be accompanied by:
(1) Copies of orders or other evidence establishing the claimant's
required presence in the area involved, and
(2) A detailed statement of facts and circumstances showing an
applicable case enumerated in Sec. 180.104(c)(8).
(i) Property used for benefit of Government. Claims for property
loss when the property was used for the benefit of the Government should
be accompanied by:
(1) A statement from the proper authority that the property was
supplied by the claimant in the performance of
[[Page 46]]
official business at the request of, or with the knowledge and consent
of, superior authority or by reason of necessity; and
(2) If the property being used for the benefit of the Government was
damaged or lost while not in use, evidence that the loss occurred in an
authorized storage area.
(j) Money. Claims for loss of money deposited for safekeeping,
transmittal, or other authorized disposition, should be accompanied by:
(1) Name, grade, and address of the person or persons who received
the money and any others involved;
(2) Name and designation of the authority who authorized such person
or persons to accept personal funds, and the disposition required; and
(3) Receipts and written sworn statements explaining the failure to
account for funds or return them to the claimant.
(k) Motor vehicles in transit. Claims for damage to motor vehicles
in transit should be accompanied by a copy of orders or other available
evidence to establish the claimant's lawful right to have the property
shipped and evidence to establish damage in transit.
[43 FR 47163, Oct. 13, 1978, as amended at 44 FR 76747, Dec. 28, 1979]
Sec. 180.108 Settlement of claims.
(a) Authority. Associate Directors and Regional Directors are
authorized to settle and pay any claim not exceeding $500 and arising
under this part. The General Counsel is authorized to settle and pay any
claim not exceeding $15,000 and arising under this part. Unless
cognizable under Sec. 180.104(c)(3), claims for damage to or loss of
motor vehicles may be settled and paid only by the General Counsel.
(b) Redelegation. The approving authorities may establish such
procedures and make such redelegations as may be required to fulfill the
objectives of this part.
(c) Cost or value. The amount awarded on any item of property will
not exceed the cost of the item (either the price paid in cash or
property) or the value at the time of acquisition if not acquired by
purchase or exchange. The amount payable will be determined by applying
the principles of depreciation to the adjusted dollar value or other
base price of property lost or damaged beyond economical repair; by
allowing the cost of repairs when an item is economically repairable,
provided the cost of repairs does not exceed the depreciated value of
the item; and by deducting salvage value, if appropriate.
(d) Depreciation. Depreciation in value of an item is determined by
considering the type of article involved, its cost, condition when
damaged beyond economical repair or lost, and the time elapsed between
the date of acquisition and the date of damage or loss.
(e) Appreciation. There will be no allowance for appreciation in the
value of the property except that the cost of the item may be adjusted
to reflect changes in the purchasing power of the dollar before
depreciation is computed. Appreciation will not be allowed solely
because the loss occurred or the claimant now resides in an area remote
from the place of purchase of the property.
(f) Expensive articles. Allowance for expensive items (including
heirlooms and antiques) or for items purchased at unreasonably high
prices will be based on the fair and reasonable purchase price for
substitute articles of a similar nature.
(g) Acquisition. Allowance for articles acquired by barter will not
exceed the cost of the articles tendered in barter. No reimbursement
will be made for articles acquired in black market or other prohibited
activities.
(h) Replacement. Replacement of damaged or lost property may be made
in kind whenever appropriate.
(i) Amount allowable. Subject to the limitations of Secs. 180.108(c)
through 180.108(h), the amount allowable in settlement of a claim is
either:
(1) The depreciated value immediately prior to damage or loss of
property damaged beyond economical repair or lost, less any salvage
value; or
(2) The reasonable cost of repairs when property is economically
repairable, provided that the cost of repairs does not exceed the
depreciated value.
(j) Notification. The approving authority shall notify the claimant
in writing of the action taken on the claim and, if the claim is
disapproved or only partially approved, the reasons therefor.
[[Page 47]]
(k) Carrier or insurer. In the event a claim submitted against a
carrier or insurer under Sec. 180.106 had not been settled before
settlement of a claim against the Government under this part, the
approving authority shall notify such carrier or insurer to pay the
proceeds of the claim to OPM to the extent OPM has made payment to the
claimant.
(l) Review. The action of the approving authority is final; however,
the decision may be reconsidered if the claimant so requests and submits
a written explanation why reconsideration is appropriate.
(m) Attorney's fees. No more than 10 per centum of the amount paid
in settlement of each individual claim submitted and settled under this
subpart shall be paid or delivered to or received by any agent or
attorney on account of services rendered in connection with that claim
and the same shall be unlawful, any contract to the contrary
notwithstanding. Any person violating this or any other provision of
sections 240 to 243 of title 31, United States Code, shall be deemed
guilty of a misdemeanor and upon conviction thereof shall be fined in
any sum not exceeding $1000.
[43 FR 47163, Oct. 13, 1978, as amended at 44 FR 76747, Dec. 28, 1979]
PART 185--PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
Sec.
185.101 Purpose.
185.102 Definitions.
185.103 Basis for civil penalties and assessments.
185.104 Investigation.
185.105 Review by the reviewing official.
185.106 Prerequisites for issuing a complaint.
185.107 Complaint.
185.108 Service of complaint.
185.109 Answer.
185.110 Default upon failure to file an answer.
185.111 Referral of complaint and answer to the ALJ.
185.112 Notice of hearing.
185.113 Location of hearing.
185.114 Parties to the hearing.
185.115 Separation of functions.
185.116 Ex parte contacts.
185.117 Disqualification of reviewing official or ALJ.
185.118 Rights of parties.
185.119 Authority of the ALJ.
185.120 Prehearing conferences.
185.121 Disclosure of documents.
185.122 Discovery.
185.123 Exchange of witness lists, statements and exhibits.
185.124 Subpoenas for attendance at hearing.
185.125 Protective order.
185.126 Evidence.
185.127 Fees.
185.128 Form, filing and service of papers.
185.129 Computation of time.
185.130 Motions.
185.131 Sanctions.
185.132 The hearing and burden of proof.
185.133 Determining the amount of penalties and assessments.
185.134 Witnesses.
185.135 The record.
185.136 Post-hearing briefs.
185.137 Initial decision.
185.138 Reconsideration of initial decision.
185.139 Appeal to authority head.
185.140 Stays ordered by the Department of Justice.
185.141 Stay pending appeal.
185.142 Judicial review.
185.143 Collection of civil penalties and assessments.
185.144 Right to administrative offset.
185.145 Deposit in Treasury of the United States.
185.146 Compromise or settlement.
185.147 Limitations.
Authority: 31 U.S.C. 3801-3812.
Source: 60 FR 7891, Feb. 10, 1995, unless otherwise noted.
Sec. 185.101 Purpose.
This subpart implements the Program Fraud Civil Remedies Act of
1986, Public Law 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986),
codified at 31 U.S.C. 3801-3812. Section 3809 requires each authority
head to promulgate regulations necessary to implement the provisions of
the statute. The subpart establishes administrative procedures for
imposing civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted, or presented, false,
fictitious, or fraudulent claims or written statements to authorities or
to their agents, and specifies the hearing and appeal rights of persons
subject to allegations of liability for such penalties and assessments.
The moneys collected as a result of these procedures are deposited as
miscellaneous receipts in the Treasury of the United States.
[[Page 48]]
Sec. 185.102 Definitions.
For the purposes of this part--
ALJ means an Administrative Law Judge in the authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5
U.S.C. 3344.
Authority means the Office of Personnel Management (OPM).
Authority head means the Director of the Office of Personnel
Management or the Director's designee.
Benefit is very broad, and is intended to cover anything of value,
including but not limited to any advantage, preference, privilege,
license, permit, favorable decision, ruling, status or loan guarantee.
Claim means any request, demand, or submission--
(a) Made to the authority for property, services, or money
(including money representing benefits, grants, loans or insurance);
(b) Made to a recipient of property, services, or money from the
authority or to a party to a contract with the authority:
(1) For property or services if the United States--
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such
property or services; or
(iii) Will reimburse such recipient or party for the purchase of
such property or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States:
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
Complaint means the administrative complaint served by the reviewing
official on the defendant under Sec. 185.107.
Defendant means any person alleged in a complaint under Sec. 185.107
to be liable for a civil penalty or assessment under Sec. 185.103.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by
Sec. 185.110 or Sec. 185.137, and includes a revised initial decision
issued following a remand or a motion for reconsideration.
Investigating Official means the Inspector General or the Inspector
General's designee.
Knows or has reason to know means that a person, with respect to a
claim or statement:
(a) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or falsity of the
claim or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim
or statement.
Makes shall include the terms presents, submits, and causes to be
made, presented, or submitted. As the context requires, making or made,
shall likewise include the corresponding forms of such terms.
Person means any individual, partnership, corporation, association,
or private organization, and includes the plural of that term.
Representative means an attorney who is in good standing of the bar
of any State, Territory, or possession of the United States or of the
District of Columbia or the Commonwealth of Puerto Rico or other
individual designated in writing by the defendant.
Reviewing Official means the General Counsel of OPM or the General
Counsel's designee. For the purposes of Sec. 185.105 of these rules, the
General Counsel personally, or members of the General Counsel's
immediate staff, shall perform the functions of the reviewing official
provided that such person or persons serve in a position for which the
rate of basic pay is not less than the minimum rate payable under
section 5376 of title 5 of the United States Code. All other functions
of the reviewing official, including administrative prosecution under
these rules, shall be performed on behalf of the General Counsel by
members of the Office of the General Counsel.
Statement means any representation, certification, affirmation,
document,
[[Page 49]]
record, or accounting or bookkeeping entry made:
(a) With respect to a claim or to obtain the approval or payment of
a claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from, the authority, or any State,
political subdivision of a State, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or benefit, or if the Government will
reimburse such State, political subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or
benefit.
Sec. 185.103 Basis for civil penalties and assessments.
(a) In addition to any other remedy that may be prescribed by law,
any person shall be subject to a civil penalty of not more than $5,000,
where the person makes a claim and knows or has reason to know that the
claim:
(1) In false, fictitious, or fraudulent;
(2) Includes, or is supported by, any written statement which
asserts a material fact which is false, fictitious, or fraudulent;
(3) Includes, or is supported by, any written statement that:
(i) Omits a material fact;
(ii) Is false, fictitious, or fraudulent as a result of such
omission; and
(iii) Is a statement in which the person making such statement has a
duty to include such material fact; or
(4) Is for payment for the provision of property or services which
the person has not provided as claimed.
(b) Each voucher, invoice, claim form, or other individual request
or demand for property, services, or money constitutes a separate claim.
(c) A claim shall be considered made to the authority, recipient, or
party when such claim is actually made to an agent, fiscal intermediary,
or other entity, including any State or political subdivision thereof,
acting for or on behalf of the authority, recipient, or party.
(d) Each claim for property, services, or money is subject to a
civil penalty regardless of whether such property, services, or money is
actually delivered or paid.
(e) If the Government has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section may also be subject to an
assessment of not more than twice the amount of such claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because of such claim.
(f) Any person who makes a written statement that:
(1) The person knows or has reason to know:
(i) Asserts a material fact which is false, fictitious, or
fraudulent; or
(ii) Is false, fictitious, or fraudulent because it omits a material
fact that the person making the statement has a duty to include in such
statement; and
(2) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement may be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,000 for each
such statement.
(g) Each written representation, certification, or affirmation
constitutes a separate statement.
(h) A statement shall be considered made to the authority when such
statement is actually made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or on behalf of the authority.
(i) No proof of specific intent to defraud is required to establish
liability under this section.
(j) In any case in which it is determined that more than one person
is liable for making a claim or statement under this section, each such
person may be held liable for a civil penalty under this section.
(k) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the Government
has
[[Page 50]]
made payment (including transferred property or provided services), an
assessment may be imposed against any such person or jointly and
severally against any combination of such persons.
Sec. 185.104 Investigation.
(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted, he or she
may issue a subpoena.
(1) The subpoena so issued shall notify the person to whom it is
addressed of the authority under which the subpoena is issued and shall
identify the records or documents sought;
(2) The investigating official may designate a person to act on his
or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender
to the investigating official, or the person designated to receive the
documents, a certification that
(i) The documents sought have been produced;
(ii) Such documents are not available and the reasons therefor; or
(iii) Such documents, suitably identified, have been withheld based
upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the
Program Fraud Civil Remedies Act may be warranted, the investigating
official shall submit a report containing the findings and conclusions
of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating
official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
defer or postpone a report or referral to the reviewing official to
avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.
Sec. 185.105 Review by the reviewing official.
If, based on the report of the investigating official under
Sec. 185.104(b), the reviewing official determines that there is
adequate evidence to believe that a person is liable under Sec. 185.103,
the reviewing official shall transmit to the Attorney General a written
notice of the reviewing official's intention to have a complaint issued
under Sec. 185.107. Such notice shall include:
(a) A statement of the reviewing official's reasons for issuing a
complaint;
(b) A statement specifying the evidence that supports the
allegations of liability;
(c) A description of the claims or statements upon which the
allegations of liability are based;
(d) An estimate of the amount of money, or the value of property,
services, or other benefits, requested or demanded in violation of
Sec. 185.103;
(e) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(f) A statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
Sec. 185.106 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under Sec. 185.107
only if:
(1) The Department of Justice approves the issuance of a complaint
in a written statement described in section 3803(b)(1) of title 31 of
the United States Code, and
(2) In the case of allegations of liability under Sec. 185.103(a)
with respect to a claim, the reviewing official determines that, with
respect to such claim or a group of related claims submitted at the same
time such claim is submitted (as defined in paragraph (b) of this
section), the amount of money, or the value of property or services,
demanded or requested in violation of Sec. 185.103(a) does not exceed
$150,000.
(b) For the purposes of this section, a related group of claims
submitted at the same time shall include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
[[Page 51]]
(c) Nothing in this section shall be construed to limit the
reviewing official's authority to join in a single complaint against a
person, claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
Sec. 185.107 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a complaint in accordance with section 3803(b)(1) of title
31 of the United States Code, the reviewing official may serve a
complaint on the defendant, as provided in Sec. 185.108.
(b) The complaint shall state the following:
(1) The allegations of liability against the defendant, including
the statutory basis for liability, an identification of the claims or
statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer, including a specific
statement of the defendant's right to request a hearing and to be
represented by a representative; and
(4) The fact that failure to file an answer within 30 days of
service of the complaint will result in the imposition of the maximum
amount of penalties and assessments without right to appeal, as provided
in Sec. 185.110.
(c) At the same time the reviewing official serves the complaint, he
or she shall serve the defendant with a copy of these regulations.
Sec. 185.108 Service of complaint.
(a) Service of a complaint must be made by certified or registered
mail or by delivery in any manner authorized by Rule 4 of the Federal
Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by:
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging
receipt; or
(3) Written acknowledgment of receipt by the defendant or his or her
representative.
Sec. 185.109 Answer.
(a) The defendant may request a hearing in the answer filed with the
reviewing official within 30 days of service of the complaint.
(b) In the answer, the defendant:
(1) Shall admit or deny each of the allegations of liability made in
the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum; and
(4) Shall state the name, address, and telephone number of the
person authorized by the defendant to act as defendant's representative,
if any.
(c) If the defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the defendant may, before the expiration of 30 days from service of the
complaint, file with the reviewing official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to file an answer meeting the requirements of
paragraph (b) of this section. The reviewing official shall file
promptly with the ALJ the complaint, the general answer denying
liability, and the request for an extension of time as provided in
Sec. 185.110. For good cause shown, the ALJ may grant the defendant up
to 30 additional days within which to file an answer meeting the
requirements of paragraph (b) of this section. The ALJ shall decide
expeditiously whether the dependent shall be granted an additional
period of time to file such answer.
Sec. 185.110 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time
prescribed in Sec. 185.109(a), the reviewing official may refer the
complaint to the ALJ.
[[Page 52]]
(b) Upon the referral of the complaint, the ALJ shall promptly serve
on the defendant in the manner prescribed in Sec. 185.108, a notice that
an initial decision will be issued under this section.
(c) The ALJ shall assume the facts alleged in the complaint to be
true and, if such facts establish liability under Sec. 185.103, the ALJ
shall issue an initial decision imposing the maximum amount of penalties
and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file
a timely answer the defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section
and the initial decision shall become final and binding upon the parties
30 days after it is issued.
(e) If, before such an initial decision becomes final, the defendant
files a motion with the ALJ seeking to reopen on the grounds that
extraordinary circumstances prevented the defendant from filing an
answer, the initial decision shall be stayed pending the ALJ's decision
on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary
circumstances excusing the failure to file a timely answer, the ALJ
shall withdraw the initial decision in paragraph (c) of this section, if
such a decision has been issued, and shall grant the defendant an
opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
Sec. 185.138.
(h) The defendant may appeal to the authority head the decision
denying a motion to reopen by filing a notice of appeal with the
authority head within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal shall stay the initial decision
until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the
authority head, the ALJ shall forward the record of the proceeding to
the authority head.
(j) The authority head shall decide expeditiously whether
extraordinary circumstances excuse the defendant's failure to file a
timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances
excused the defendant's failure to file a timely answer, the authority
head shall remand the case to the ALJ with instructions to grant the
defendant an opportunity to answer.
(l) If the authority head decides that the defendant's failure to
file a timely answer is not excused, the authority head shall reinstate
the initial decision of the ALJ, which shall become final and binding
upon the parties 30 days after the authority head issues such decision.
Sec. 185.111 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the
complaint and answer with the ALJ.
Sec. 185.112 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall
promptly serve a notice of hearing upon the defendant in the manner
prescribed by Sec. 185.108. At the same time, the ALJ shall send a copy
of such notice to the reviewing official or his or her designee.
(b) Such notice shall include:
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of
the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
Sec. 185.113 Location of hearing.
(a) The hearing may be held:
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim
or statement in issue was made; or
[[Page 53]]
(3) In such other place as may be agreed upon by the parties and the
ALJ.
(b) Each party shall have the opportunity to present argument with
respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered
by the ALJ.
Sec. 185.114 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and OPM.
(b) Except where the authority head designates another, OPM shall be
represented by the members of the Office of the General Counsel.
(c) Pursuant to section 3730(c)(5) of title 31, United States Code,
a private plaintiff under the False Claims Act may participate in these
proceedings to the extent authorized by the provisions of that Act.
Sec. 185.115 Separation of functions.
(a) The investigating official, the reviewing official, and any
employee or agent of the authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case:
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the authority head, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under section
3806 of title 31, United States Code.
(b) The ALJ shall not be responsible to or subject to the
supervision or direction of the investigating official or the reviewing
official.
Sec. 185.116 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 185.117 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of a
reviewing official or an ALJ. Such motion shall be accompanied by an
affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It shall be accompanied by a certificate of the representative of
record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with this section.
(1) If the ALJ determines that a reviewing official is disqualified,
the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may
determine the matter only as part of his or her review of the initial
decision upon appeal, if any.
Sec. 185.118 Rights of parties.
Except as otherwise limited by this part, all parties may:
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery as provided under Sec. 185.122;
(d) Agree to stipulations of fact or law, which shall be made a part
of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
[[Page 54]]
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
Sec. 185.119 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to:
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or
regulations invalid.
Sec. 185.120 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least
one prehearing conference at a reasonable time in advance of the
hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
Sec. 185.121 Disclosure of documents.
(a) Upon written request to the reviewing official, generally prior
to the filing of an answer, the defendant may review any relevant and
material documents, transcripts, records, and other materials that
relate to the allegations set out in the complaint and upon which the
findings and conclusions of the investigating official under
Sec. 185.104(b) are based, unless such documents are subject to a
privilege under Federal law. Upon payment of fees for duplication, the
defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant,
may also obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document that
would otherwise be
[[Page 55]]
privileged. If the document would otherwise be privileged, only that
portion containing exculpatory information must be disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in Sec. 185.105 is not discoverable under any
circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant to
Sec. 185.109.
Sec. 185.122 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and Sec. 185.123, the term
documents includes information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence. Nothing
contained herein shall be interpreted to require the creation of a
document.
(c) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ shall regulate the timing of
discovery.
(d) Motions for discovery are to be handled according to the
following procedures:
(1) A party seeking discovery may file a motion with the ALJ. Such a
motion shall be accompanied by a copy of the requested discovery, or in
the case of depositions, a summary of the scope of the proposed
deposition.
(2) Within 10 days of service, a party may file an opposition to the
motion and/or a motion for protective order as provided in Sec. 185.125.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought:
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) the burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
Sec. 185.125.
(e) Depositions are to be handled in the following manner:
(1) If a motion for deposition is granted, the ALJ shall issue a
subpoena for the deponent, which may require the deponent to produce
documents. The subpoena shall specify the time and place at which the
deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the
manner prescribed in Sec. 185.108.
(3) The deponent may file with the ALJ within 10 days of service a
motion to quash the subpoena or a motion for a protective order.
(4) The party seeking to depose shall provide for the taking of a
verbatim transcript of the deposition, which it shall make available to
all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
Sec. 185.123 Exchange of witness lists, statements and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties shall exchange witness lists, copies
of prior statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written statements that the
party intends to offer in lieu of live testimony in accordance with
Sec. 185.133(b). At the time the above documents are exchanged, any
party that intends to rely on the transcript or deposition testimony in
lieu of live testimony at the hearing, if permitted by the ALJ, shall
provide each party with a copy of the specific pages of the transcript
it intends to introduce into evidence.
(b) If a party objects, the ALJ may not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as
[[Page 56]]
provided above unless the ALJ finds good cause for the failure or that
there is no prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
shall be deemed to be authentic for the purpose of admissibility at the
hearing.
Sec. 185.124 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena shall file a written request therefor
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ upon a showing of good cause. Such request
shall specify any documents to be produced and shall designate the
witnesses and describe the address and location thereof with sufficient
particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner
prescribed in Sec. 185.108. A subpoena on a party or upon an individual
under the control of a party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within 10 days after
service or on or before the time specified in the subpoena for
compliance if it is less than 10 days after service.
Sec. 185.125 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be the subject of inquiry, or that the
scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a sealed deposition be opened only by order of the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
ALJ.
Sec. 185.126 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ shall not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g. to exclude unreliable
evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
[[Page 57]]
(f) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses
and evidence.
(h) All documents and other evidence offered or taken for the record
shall be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to Sec. 185.125.
Sec. 185.127 Fees.
The party requesting a subpoena shall pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage shall accompany the subpoena when served,
except that when a subpoena is issued on behalf of the authority, a
check for witness fees and mileage need not accompany the subpoena.
Sec. 185.128 Form, filing and service of papers.
(a) Form. Documents filed with the ALJ shall include an original and
two copies. Every pleading and paper filed in the proceeding shall
contain a caption setting forth the title of the action, the case number
assigned by the ALJ, and a designation of the paper (e.g., motion to
quash subpoena). Every pleading and paper shall be signed by, and shall
contain the address and telephone number of the party or the person on
whose behalf the paper was filed, or his or her representative.
(b) Filing. Papers are considered filed when they are mailed. Date
of mailing may be established by a certificate from the party or its
representative or by proof that the document was sent by certified or
registered mail.
(c) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than those required to be
served as prescribed in Sec. 185.108 shall be made by delivering a copy
or by placing a copy of the document in the United States mail, postage
prepaid and addressed, to the party's last known address. When a party
is represented by a representative, service shall be made upon such
representative in lieu of the actual party.
(d) Proof of service. A certificate of the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, shall be proof of service.
Sec. 185.129 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal Government,
in which event it includes the next business day.
(b) When the period of time allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal Government shall be excluded from the computation.
(c) Where a document has been served or issued by placing it in the
mail, an additional 5 days will be added to the time permitted for any
response.
Sec. 185.130 Motions.
(a) Any application to the ALJ for an order or ruling shall be by
motion. Motions shall state the relief sought, the authority relied
upon, and the facts alleged, and shall be filed with the ALJ and served
on all other parties.
(b) Except for motions made during a prehearing conference or at the
hearing, all motions shall be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for
filing responses thereto has expired, except upon consent of the parties
or following a hearing on the motion, but may overrule or deny such
motion without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose or all
outstanding motions prior to the beginning of the hearing.
[[Page 58]]
Sec. 185.131 Sanctions.
(a) The ALJ may sanction a person including any party or
representative for the following reasons:
(1) Failure to comply with an order, rule, or procedure governing
the proceeding;
(2) Failure to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the proceeding.
(b) Any such sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate to
the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this
part commenced by service of a notice of hearing, the ALJ may dismiss
the action or may issue an initial decision imposing penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document which is not filed in a timely fashion.
Sec. 185.132 The hearing and burden of proof.
(a) Where requested in accordance with Sec. 185.109 the ALJ shall
conduct a hearing on the record in order to determine whether the
defendant is liable for a civil penalty or assessment under Sec. 185.103
and, if so, the appropriate amount of any such civil penalty or
assessment considering any aggravating or mitigating factors.
(b) The authority shall prove defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise closed
by the ALJ for good cause shown.
Sec. 185.133 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the authority head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, double damages and a
significant civil penalty ordinarily should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the authority head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false, fictitious, or fraudulent claims or
statements) charged in the complaint;
(1) The number of false, fictitious or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon public
confidence
[[Page 59]]
in the management of Government programs and operations;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the defendant's sophistication with respect to it, including the extent
of the defendant's prior participation in the program or in similar
transactions;
(15) Whether the defendant has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
State, directly or indirectly;
(16) The need to deter the defendant and others from engaging in the
same or similar misconduct; and
(17) The potential impact of the misconduct on the rights of others.
(c) Nothing in this section shall be construed to limit the ALJ or
the authority head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
Sec. 185.134 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. Any such written statement
must be provided to all others parties along with the last known address
of such witness, in a manner which allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written statements of witnesses proposed to testify at the hearing
and deposition transcripts shall be exchanged as provided in
Sec. 185.123(a).
(c) The ALJ shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to--
(1) Make the interrogation and presentation effective for the
ascertainment of the truth,
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the
facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceedings without regard to the scope of his
or her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be
conducted in the manner of direct examination and may proceed by leading
questions only if the witness is a hostile witness, an adverse party, or
a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of the following:
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party designated by the party's representative; or
(3) An individual whose presence is shown by a party to be essential
to the presentation of its case, including an individual employed by the
Government engaged in assisting the representative for the Government.
Sec. 185.135 The record.
(a) The hearing shall be recorded and transcribed. Transcripts may
be obtained following the hearing from the ALJ at a cost not to exceed
the actual cost of duplication.
[[Page 60]]
(b) The transcript of testimony, exhibits and other evidence
admitted at the hearing, and all papers and requests filed in the
proceeding constitute the record for the decision by the ALJ and the
authority head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to Sec. 185.125.
Sec. 185.136 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ shall fix the
time for filing such briefs, not to exceed 60 days from the date the
parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.
Sec. 185.137 Initial decision.
(a) The ALJ shall issue an initial decision based only on the
record, which shall contain findings of fact, conclusions of law, and
the amount of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the
following issues:
(1) Whether the claims or statements identified in the complaint, or
any portions thereof, violate Sec. 185.103.
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in Sec. 185.133.
(c) The ALJ shall promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ shall at the same time
serve all parties with a statement describing the right of any defendant
determined to be liable for a civil penalty or assessment to file a
motion for reconsideration with the ALJ or a notice of appeal with the
authority head. If the ALJ fails to meet the deadline contained in this
paragraph, he or she shall notify the parties of the reason for the
delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the
authority head, or a motion for reconsideration of the initial decision
is timely filed, the initial decision shall constitute the final
decision of the authority head and shall be final and binding on the
parties 30 days after it is issued by the ALJ.
Sec. 185.138 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service was made by mail,
receipt will be presumed to be 5 days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged errors. Such
motion shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final decision of the authority head and
shall be final and binding on all parties 30 days after the ALJ denies
the motion, unless the initial decision is timely appealed to the
authority head in accordance with Sec. 185.139.
(g) If the ALJ issues a revised initial decision, that decision
shall constitute the final decision of the authority head and shall be
final and binding on the parties 30 days after it is issued, unless it
is timely appealed to the authority head in accordance with
Sec. 185.139.
Sec. 185.139 Appeal to authority head.
(a) Any defendant who has filed a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal
[[Page 61]]
such decision to the authority head by filing a notice of appeal with
the authority head in accordance with this section.
(1) A notice of appeal may be filed at any time within 30 days after
the ALJ issues an initial decision. However, if another party files a
motion for reconsideration under Sec. 185.138, consideration of the
appeal shall be stayed automatically pending resolution of the motion
for reconsideration.
(2) If a motion for reconsideration is timely filed, a notice of
appeal shall be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The authority head may extend the initial 30-day period for an
additional 30 days if the defendant files with the authority head a
request for an extension within the initial 30-day period and shows good
cause.
(b) If the defendant files a timely notice of appeal with the
authority head and the time for filing motions for reconsideration under
Sec. 185.138 has expired, the ALJ shall forward the record of the
proceeding to the authority head.
(c) A notice of appeal shall be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting the
exceptions.
(d) The representative for OPM may file a brief in opposition to
exceptions within 30 days of receiving the notice of appeal and
accompanying brief.
(e) There is no right to appear personally before the authority
head.
(f) There is no right to appeal an interlocutory ruling by the ALJ.
(g) In reviewing the initial decision, the authority head shall not
consider any objection that was not raised before the ALJ unless the
objecting party can demonstrate extraordinary circumstances causing the
failure to raise the objection.
(h) If any party demonstrates to the satisfaction of the authority
head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure to present such
evidence at such hearing, the authority head shall remand the matter to
the ALJ for consideration of such additional evidence.
(i) The authority head may affirm, reduce, reverse, compromise,
remand or settle any penalty or assessment determined by the ALJ in any
initial decision.
(j) The authority head shall promptly serve each party to the appeal
with a copy of the decision of the authority head and a statement
describing the right of any person determined to be liable for a penalty
or assessment to seek judicial review.
(k) Unless a petition for review is filed as provided in section
3805 of title 31, United States Code, after a defendant has exhausted
all administrative remedies under this part and within 60 days after the
date on which the authority head serves the defendant with a copy of the
authority head's decision, a determination that a defendant is liable
under Sec. 185.103 is final and not subject to judicial review.
[60 FR 7891, Feb. 10, 1995; 60 FR 22249, May 5, 1995]
Sec. 185.140 Stays ordered by the Department of Justice.
If, at any time, the Attorney General or an Assistant Attorney
General designated by the Attorney General transmits to the authority
head a written finding that continuation of the administrative process
described in this part with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the authority head shall stay the
process immediately. The authority head may order the process resumed
only upon receipt of the written authorization of the Attorney General
or of the Assistant Attorney General who ordered the stay.
Sec. 185.141 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision
of the authority head.
[[Page 62]]
Sec. 185.142 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the authority head imposing penalties and/or assessments
under this part and specifies the procedures for such review.
Sec. 185.143 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize
actions for collection of civil penalties and assessments imposed under
this part and specify the procedures for such actions.
Sec. 185.144 Right to administrative offset.
The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under Sec. 185.142 or
Sec. 185.143, or any amount agreed upon in a compromise or settlement
under Sec. 185.146, may be collected by administrative offset under
section 3716 of title 31, United States Code, except that an
administrative offset may not be made under section 3716 against a
refund of an overpayment of Federal taxes, then or later owing by the
United States to the defendant.
Sec. 185.145 Deposit in Treasury of the United States.
All amounts collected pursuant to this part shall be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in section 3806(g) of title 31, United States Code.
Sec. 185.146 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
reviewing official is permitted to issue a complaint and before the date
on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an initial decision, except during the pendency of any review
under Sec. 185.142 or during the pendency of any action to collect
penalties and assessments under Sec. 185.143.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
Sec. 185.142 or of any action to recover penalties and assessments under
section 3806 to title 31, United States Code.
(e) The investigating official may recommend settlement terms to the
reviewing official, the authority head, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
Sec. 185.147 Limitations.
(a) The notice of hearing with respect to a claim or statement must
be served in the manner specified in Sec. 185.108 within 6 years after
the date on which such a claim or statement is made.
(b) If the defendant fails to file a timely answer, service of a
notice under Sec. 185.110(b) shall be deemed a notice of hearing for
purposes of this section.
(c) the statute of limitations may be executed by written agreement
of the parties.
PART 210--BASIC CONCEPTS AND DEFINITIONS (GENERAL)--Table of Contents
Subpart A--Applicability of Regulations; Definitions
Sec.
210.101 Applicability of various parts of regulations.
210.102 Definitions.
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958
Comp. p. 218.
Subpart A--Applicability of Regulations; Definitions
Sec. 210.101 Applicability of various parts of regulations.
(a) General. In most parts, the applicability of the part is stated
specifically in the part or is otherwise apparent from the substance of
the part.
[[Page 63]]
(b) Parts 315 through 339. Parts 315 through 339 of this chapter
apply to all positions in the competitive service and to all incumbents
of those positions; and, except as specified by or in an individual
part, these parts do not apply to positions in the excepted service or
to incumbents of those positions.
[33 FR 12407, Sept. 4, 1968, as amended at 44 FR 45587, Aug. 3, 1979]
Sec. 210.102 Definitions.
(a) The definitions in paragraph (b) of this section apply
throughout this chapter, except when a defined term is specifically
modified in or specifically defined for the purpose of a particular
part.
(b) In this chapter:
(1) Appointing officer means a person having power by law, or by
lawfully delegated authority, to make appointments to positions in the
service of the Federal Government or the government of the District of
Columbia.
(2) OPM means the Office of Personnel Management.
(3) Days, unless otherwise defined or limited, means calendar days
and not workdays. In computing a period of time prescribed in this
chapter, the day of the action or event after which the designated
period of time begins to run is not to be included. The last day of the
period so computed is to be included unless it is a Saturday, a Sunday,
or a legal holiday in which event the period runs until the end of the
next day which is neither a Saturday, a Sunday, nor a legal holiday.
(4) Demotion means a change of an employee, while serving
continuously within the same agency:
(i) To a lower grade when both the old and the new positions are
under the General Schedule or under the same type graded wage schedule;
or
(ii) To a position with a lower rate of pay when both the old and
the new positions are under the same type ungraded wage schedule, or are
in different pay method categories.
(5) Eligible means an applicant who meets the minimum requirements
for entrance to an examination and is rated 70 or more in the
examination by OPM.
(6) Employee means a civilian officer or employee.
(7) Metropolitan area of Washington, DC., means the District of
Columbia; Alexandria, Fairfax, and Falls Church Cities, Va.; Arlington,
Fairfax, Loudoun, and Prince William Counties, Va.; and Charles,
Montgomery, and Prince Georges Counties, Md.
(8) Noncompetitive action means a promotion, demotion, reassignment,
transfer, reinstatement, or an appointment based on prior service.
(9) Overseas means outside the continental United States, but does
not include Alaska, Guam, Hawaii, the Isthmus of Panama, Puerto Rico, or
the Virgin Islands.
(10) Position change means a promotion, demotion, or reassignment.
(11) Promotion means a change of an employee, while serving
continuously within the same agency:
(i) To a higher grade when both the old and the new positions are
under the General Schedule or under the same type graded wage schedule;
or
(ii) To a position with a higher rate of pay when both the old and
the new positions are under the same type ungraded wage schedule, or are
in different pay method categories.
(12) Reassignment means a change of an employee, while serving
continuously within the same agency, from one position to another
without promotion or demotion.
(13) Reemployed annuitant means an employee whose annuity under
subchapter III of chapter 83 of title 5, United States Code, was
continued on reemployment in an appointive position on or after October
1, 1956.
(14) Register means a list of qualified applicants compiled in order
of relative standing for certification.
(15) Reinstatement means the noncompetitive reemployment for service
as a career or career-conditional employee of a person formerly employed
in the competitive service who had a competitive status or was serving
probation when he was separated from the service.
(16) Status quo employee means an employee who failed to acquire a
competitive status when the position in which he was serving was placed
in the competitive service by a statute, Executive
[[Page 64]]
order, or Civil Service rule, which permitted his retention without the
acquisition of status.
(17) Tenure means the period of time an employee may reasonably
expect to serve under his current appointment. It is granted and
governed by the type of appointment under which an employee is currently
serving without regard to whether he has a competitive status or whether
his appointment is in a competitive position or in an excepted position.
(18) Transfer means a change of an employee, without a break in
service of 1 full workday, from a position in one agency to a position
in another agency.
[33 FR 12407, Sept. 4, 1968, as amended at 34 FR 19495, Dec. 10, 1969;
38 FR 22535, Aug. 22, 1973]
PART 211--VETERAN PREFERENCE--Table of Contents
Sec.
211.101 Purpose.
211.102 Definitions.
211.103 Administration of preference.
Authority: 5 U.S.C. 1302.
Source: 60 FR 3056, Jan. 13, 1995, unless otherwise noted.
Sec. 211.101 Purpose.
The purpose of this part is to define veterans' preference and the
administration of preference in Federal employment. (5 U.S.C. 2108)
Sec. 211.102 Definitions.
For purposes of preference in Federal employment the following
definitions apply:
(a) Veteran means a person who was separated with an honorable
discharge or under honorable conditions from active duty in the armed
forces performed--
(1) In a war; or,
(2) In a campaign or expedition for which a campaign badge has been
authorized; or
(3) During the period beginning April 28, 1952, and ending July 1,
1955; or,
(4) For more than 180 consecutive days, other than for training, any
part of which occurred during the period beginning February 1, 1955, and
ending October 14, 1976.
(b) Disabled veteran means a person who was separated under
honorable conditions from active duty in the armed forces performed at
any time and who has established the present existence of a service-
connected disability or is receiving compensation, disability retirement
benefits, or pensions because of a public statute administered by the
Department of Veterans Affairs or a military department.
(c) Preference eligible means veterans, spouses, widows, or mothers
who meet the definition of ``preference eligible'' in 5 U.S.C. 2108.
Preference eligibles are entitled to have 5 or 10 points added to their
earned score on a civil service examination (see 5 U.S.C. 3309). They
are also accorded a higher retention standing in the event of a
reduction in force (see 5 U.S.C. 3502). Preference does not apply,
however, to inservice placement actions such as promotions.
(d) Armed forces means the United States Army, Navy, Air Force,
Marine Corps, and Coast Guard.
(e) Uniformed services means the armed forces, the commissioned
corps of the Public Health Service, and the commissioned corps of the
National Oceanic and Atmospheric Administration.
(f) Active duty or active military duty means full-time duty with
military pay and allowances in the armed forces, except for training or
for determining physical fitness and except for service in the Reserves
or National Guard.
(g) Separated under honorable conditions means either an honorable
or a general discharge from the armed forces. The Department of Defense
is responsible for administering and defining military discharges.
[60 FR 3056, Jan. 13, 1995; 60 FR 6595, Feb. 2, 1995]
Sec. 211.103 Administration of preference.
Agencies are responsible for making all preference determinations
except for preference based on a common law marriage. Such a claim
should be referred to OPM's General Counsel for decision.
[[Page 65]]
PART 212--COMPETITIVE SERVICE AND COMPETITIVE STATUS--Table of Contents
Subpart A--Competitive Service
Sec.
212.101 Definitions.
212.102 Authority to make determinations.
Subpart B [Reserved]
Subpart C--Competitive Status
212.301 Competitive status defined.
Subpart D--Effect of Competitive Status on Position
212.401 Effect of competitive status on position.
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958
Comp., p. 218.
Source: 33 FR 12408, Sept. 4, 1968, unless otherwise noted.
Subpart A--Competitive Service
Sec. 212.101 Definitions.
In this chapter:
(a) Competitive service has the meaning given that term by section
2102 of title 5, United States Code, and includes:
(1) All civilian positions in the executive branch of the Federal
Government not specifically excepted from the civil service laws by or
pursuant to statute, by the President, or by the Office of Personnel
Management, and not in the Senior Executive Service; and
(2) All positions in the legislative and judicial branches of the
Federal Government and in the government of the District of Columbia
specifically made subject to the civil service laws by statute.
(b) Competitive position means a position in the competitive
service.
(5 U.S.C. 2102)
[33 FR 12408, Sept. 4, 1968, as amended at 45 FR 62413, Sept. 19, 1980]
Sec. 212.102 Authority to make determinations.
OPM determines finally whether a position is in the competitive
service.
Subpart B [Reserved]
Subpart C--Competitive Status
Sec. 212.301 Competitive status defined.
In this chapter, competitive status means an individual's basic
eligibility for noncompetitive assignment to a competitive position.
Competitive status is acquired by completion of a probationary period
under a career-conditional or career appointment, or under a career
executive assignment in the former executive assignment system,
following open competitive examination, or by statute, Executive order,
or the Civil Service rules, without open competitive examination. An
individual with competitive status may be, without open competitive
examination, reinstated, transferred, promoted, reassigned, or demoted,
subject to conditions prescribed by the Civil Service rules and
regulations.
[33 FR 12408, Sept. 4, 1968, as amended at 57 FR 10123, Mar. 24, 1992]
Subpart D--Effect of Competitive Status on Position
Sec. 212.401 Effect of competitive status on position.
(a) An employee is in the competitive service when he has
competitive status and is in a competitive position under a nontemporary
appointment.
(b) An employee in the competitive service at the time his position
is first listed under Schedule A, B, or C remains in the competitive
service while he occupies that position.
PART 213--EXCEPTED SERVICE--Table of Contents
Subpart A--General Provisions
Sec.
213.101 Definitions.
213.102 Identification of positions in Schedule A, B, or C.
213.103 Publication of excepted appointing authorities in Schedules A,
B, and C.
213.104 Special provisions for temporary, intermittent, or seasonal
appointments in Schedule A, B, or C.
Subpart B [Reserved]
[[Page 66]]
Subpart C--Excepted Schedules
Schedule A
213.3101 Positions other than those of a confidential or policy-
determining character for which it is impracticable to
examine.
213.3102 Entire executive civil service.
213.3199 Temporary organizations.
Schedule B
213.3201 Positions other than those of a confidential or policy-
determining character for which it is not practicable to hold
a competitive examination.
213.3202 Entire executive civil service.
Schedule C
213.3301 Positions of a confidential or policy-determining nature.
213.3302 Temporary transitional Schedule C positions.
Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958
Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103; Sec.
213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h) and 8456;
E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 4301 et
seq.; Pub. L. 105-339, 112 STAT. 3182-83; and E.O. 13162.
Source: 46 FR 20147, Apr. 3, 1981, unless otherwise noted.
Subpart A--General Provisions
Sec. 213.101 Definitions.
In this chapter:
(a) Excepted service has the meaning given that term by section 2103
of title 5, United States Code, and includes all positions in the
executive branch of the Federal Government which are specifically
excepted from the competitive service by or pursuant to statute, by the
President, or by the Office of Personnel Management, and which are not
in the Senior Executive Service.
(b) Excepted position means a position in the excepted service.
(5 U.S.C. 2103)
Sec. 213.102 Identification of positions in Schedule A, B, or C.
(a) The Office of Personnel Management will decide whether the
duties and requirements of any particular position justify exception
from the competitive service. Upon favorable determination, OPM will
authorize the position to be filled by excepted appointment under
Schedule A, B, or C. Unless otherwise specified in a particular
appointing authority, an agency may make Schedule A, B, or C
appointments on either a permanent or nonpermanent basis, with any
appropriate work schedule (i.e., full-time, part-time, seasonal, on-
call, or intermittent).
(b) When OPM establishes eligibility requirements (e.g., residence,
family income) for appointment under particular Schedule A or B
exceptions, an individual's eligibility for appointment must be
determined before appointment and without regard to any conditions that
will result from the appointment.
[59 FR 46897, Sept. 13, 1994]
Sec. 213.103 Publication of excepted appointing authorities in Schedules A, B, and C.
(a) Schedule A, B, and C appointing authorities available for use by
all agencies shall be published as regulations in the Federal Register
and the Code of Federal Regulations.
(b) Establishment and revocation of Schedule A, B, and C appointing
authorities applicable to a single agency shall be published monthly in
the Notices section of the Federal Register.
(c) A consolidated listing of all Schedule A, B, and C authorities
current as of June 30 of each year, with assigned authority numbers,
shall be published annually as a notice in the Federal Register.
[47 FR 28902, July 2, 1982, as amended at 62 FR 18505, Apr. 16, 1997]
Sec. 213.104 Special provisions for temporary, intermittent, or seasonal appointments in Schedule A, B, or C.
(a) When OPM specifies that appointments under a particular Schedule
A, B, or C authority must be temporary, intermittent, or seasonal, or
when agencies elect to make temporary, intermittent, or seasonal
appointments in Schedule A, B, or C, those terms have the following
meanings:
(1) Temporary appointments, unless otherwise specified in a
particular Schedule A, B, or C exception, are made for a specified
period not to exceed 1 year and are subject to the time limits in
paragraph (b) of this section.
[[Page 67]]
Time-limited appointments made for more than 1 year are not considered
to be temporary appointments, and are not subject to these time limits.
(2) Intermittent positions are positions in which work recurs at
sporadic or irregular intervals so that an employee's tour of duty
cannot be scheduled in advance of the administrative workweek.
(3) Seasonal positions involve annually recurring periods of
employment lasting less than 12 months each year.
(b) Temporary appointments, as defined in paragraph (a)(1) of this
section, are subject to the following limits:
(1) Service limits. Agencies may make temporary appointments for a
period not to exceed 1 year, unless the applicable Schedule A, B, or C
authority specifies a shorter period. Except as provided in paragraph
(b)(3) of this section, agencies may extend temporary appointments for
no more than 1 additional year (24 months of total service). Appointment
to a successor position (i.e., a position that replaces and absorbs the
original position) is considered to be an extension of the original
appointment. Appointment to a position involving the same basic duties,
in the same major subdivision of the agency, and in the same local
commuting area is also considered to be an extension of the original
appointment.
(2) Restrictions on refilling positions under temporary
appointments. Except as provided in paragraph (b)(3) of this section, an
agency may not fill any position (or its successor) by a temporary
appointment in Schedule A, B, or C if that position had previously been
filled by temporary appointment(s) in either the competitive or excepted
service for an aggregate of 2 years, or 24 months, within the preceding
3-year period. This limitation does not apply to programs established to
provide for systematic exchange between a Federal agency and nonfederal
organizations.
(3) Exceptions to the general limits. The service limits and
restrictions on refilling positions set out in this section do not apply
when:
(i) Positions involve intermittent or seasonal work, and employment
in the same or a successor position under one or more appointing
authorities totals less than 6 months (1,040 hours), excluding overtime,
in a service year. The service year is the calendar year that begins on
the date of the employee's initial appointment in the agency. Should
employment in a position filled under this exception total 6 months or
more in any service year, the general limits set out in this section
will apply to subsequent extension or reappointment unless OPM approves
continued exception under this section. An individual may be employed
for training for up to 120 days following initial appointment and up to
2 weeks a year thereafter without regard to the service year limitation.
(ii) Positions are filled under an authority established for the
purpose of enabling the appointees to continue or enhance their
education, or to meet academic or professional qualification
requirements. These include the authorities set out in paragraphs (r)
and (s) of Sec. 213.3102 and paragraph (a) of Sec. 213.3202, and
authorities granted to individual agencies for use in connection with
internship, fellowship, residency, or student programs.
(iii) OPM approves extension of specific temporary appointments
beyond 2 years (24 months total service) when necessitated by major
reorganizations or base closings or other rare and unusual
circumstances. Requests based on major reorganization, base closing,
restructuring, or other unusual circumstances that apply agencywide must
be made by an official at the headquarters level of the Department or
agency. Requests involving extension of appointments to a specific
position or project based on other unusual circumstances may be
submitted by the employing office to the appropriate OPM service center.
[59 FR 46897, Sept. 13, 1994, as amended at 59 FR 64841, Dec. 16, 1994;
62 FR 18505, Apr. 16, 1997; 62 FR 55725, Oct. 28, 1997; 62 FR 63628,
Dec. 2, 1997]
Subpart B [Reserved]
[[Page 68]]
Subpart C--Excepted Schedules
Schedule A
Sec. 213.3101 Positions other than those of a confidential or policy-determining character for which it is impracticable to examine.
Upon specific authorization by OPM, agencies may make appointments
under this section to positions which are not of a confidential or
policy-determining character, and which are not in the Senior Executive
Service, for which it is not practicable to examine. Examining for this
purpose means application of the qualification standards and
requirements established for the competitive service. Positions filled
under this authority are excepted from the competitive service and
constitute Schedule A. For each authorization under this section, OPM
shall assign an identifying number from 213.3102 through 213.3199 to be
used by the appointing agency in recording appointments made under that
authorization.
[46 FR 20147, Apr. 3, 1981, as amended at 46 FR 45323, Sept. 11, 1981,
59 FR 64841, Dec. 16, 1994; 62 FR 19900, Apr. 24, 1997]
Sec. 213.3102 Entire executive civil service.
(a) Positions of Chaplain and Chaplain's Assistant.
(b) [Reserved]
(c) Positions to which appointments are made by the President
without confirmation by the Senate.
(d) Attorneys.
(e) Law clerk trainee positions. Appointments under this paragraph
shall be confined to graduates of recognized law schools or persons
having equivalent experience and shall be for periods not to exceed 14
months pending admission to the bar. No person shall be given more than
one appointment under this paragraph. However, an appointment which was
initially made for less than 14 months may be extended for not to exceed
14 months in total duration.
(f) Chinese, Japanese, and Hindu interpreters.
(g) Any nontemporary position the duties of which are part-time or
intermittent in which the appointee will receive compensation during
his/her service year that aggregates not more than 40 percent of the
annual salary rate for the first step of grade GS-3. This limitation on
compensation includes any premium pay such as for overtime, night,
Sunday, or holiday work. It does not, however, include any mandatory
within-grade salary increases to which the employee becomes entitled
subsequent to appointment under this authority. Appointments under this
authority may not be for temporary project employment.
(h) [Reserved]
(i) Temporary and less-than-full time positions for which examining
is impracticable. These are:
(1) Positions in remote/isolated locations where examination is
impracticable. A remote/isolated location is outside the local commuting
area of a population center from which an employee can reasonably be
expected to travel on short notice under adverse weather and/or road
conditions which are normal for the area. For this purpose, a population
center is a town with housing, schools, health care, stores and other
businesses in which the servicing examining office can schedule tests
and/or reasonably expect to attract applicants. An individual appointed
under this authority may not be employed in the same agency under a
combination of this and any other appointment to positions involving
related duties and requiring the same qualifications for more than 1,040
workings hour in a service year. Temporary appointments under this
authority may be extended in 1-year increments, with no limit on the
number of such extensions, as an exception to the service limits in
Sec. 213.104.
(2) Positions for which a critical hiring need exists. This includes
both short-term positions and continuing positions that an agency must
fill on an interim basis pending completion of competitive examining,
clearances, or other procedures required for a longer appointment.
Appointments under this authority may not exceed 30 days and may be
extended for up to an additional 30 days if continued employment is
essential to the agency's operations. The appointments may not be used
to extend the service limit of any other appointing authority. An agency
may
[[Page 69]]
not employ the same individual under this authority for more than 60
days in any 12-month period.
(3) Other positions for which OPM determines that examining is
impracticable.
(j) Positions filled by current or former Federal employees eligible
for placement under special statutory provisions. Appointments under
this authority are subject to the following conditions.
(1) Eligible employees. (i) Persons previously employed as National
Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement
under Sec. 353.110 of this chapter, or who are applying for or receiving
an annuity under the provisions of 5 U.S.C. 8337(h) or 8456 by reason of
a disability that disqualifies them from membership in the National
Guard or from holding the military grade required as a condition of
their National Guard employment.
(ii) Executive branch employees (other than employees of
intelligence agencies) who are entitled to placement under Sec. 353.110
but who are not eligible for reinstatement or noncompetitive appointment
under the provisions of part 315 of this chapter.
(iii) Legislative and judicial branch employees and employees of the
intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are
entitled to placement under Sec. 353.110.
(2) Employees excluded. Employees who were last employed in Schedule
C or under a statutory authority that specified the employee served at
the discretion, will, or pleasure of the agency are not eligible for
appointment under this authority.
(3) Position to which appointed. Employees who are entitled to
placement under Sec. 353.110 will be appointed to a position that OPM
determines is equivalent in pay and grade to the one the individual
left, unless the individual elects to be placed in a position of lower
grade or pay. National Guard Technicians whose eligibility is based upon
a disability may be appointed at the same grade, or equivalent, as their
National Guard Technician position or at any lower grade for which they
are available.
(4) Conditions of appointment. (i) Individuals whose placement
eligibility is based on an appointment without time limit will receive
appointments without time limit under this authority. These appointees
may be reassigned, promoted, or demoted to any position within the same
agency for which they qualify.
(ii) Individuals who are eligible for placement under Sec. 353.110
based on a time-limited appointment will be given appointments for a
time period equal to the unexpired portion of their previous
appointment.
(k) Positions without compensation provided appointments thereto
meet the requirements of applicable laws relating to compensation.
(l) Positions requiring the temporary or intermittent employment of
professional, scientific, or technical experts for consultation
purposes.
(m) [Reserved]
(n) Any local physician, surgeon, or dentist employed under contract
or on a part-time or fee basis.
(o) Positions of a scientific, professional, or analytical nature
when filled by bona fide members of the faculty of an accredited college
or university who have special qualifications for the positions to which
appointed. Employment under this provision shall not exceed 130 working
days a year.
(p)-(q) [Reserved]
(r) Positions established in support of fellowship and similar
programs that are filled from limited applicant pools and operate under
specific criteria developed by the employing agency and/or a non-Federal
organization. These programs may include: internship or fellowship
programs that provide developmental or professional experiences to
individuals who have completed their formal education; training and
associateship programs designed to increase the pool of qualified
candidates in a particular occupational specialty; professional/industry
exchange programs that provide for a cross-fertilization between the
agency and the private sector to foster mutual understanding, an
exchange of ideas, or to bring experienced practitioners to the agency;
residency programs through which participants gain experience in a
Federal clinical environment; and programs that require a period of
Government service in exchange
[[Page 70]]
for educational, financial or other assistance. Appointments under this
authority may not exceed 4 years.
(s) Positions with compensation fixed under 5 U.S.C. 5351-5356 when
filled by student-employees assigned or attached to Government
hospitals, clinics or medical or dental laboratories. Employment under
this authority may not exceed 4 years.
(t) Positions when filled by mentally retarded persons who have been
certified by state vocational rehabilitation agencies as likely to
succeed. Upon completion of 2 years of satisfactory service under this
authority, the employee may qualify for conversion to competitive status
under the provisions of Executive Order 12125 and implementing
instructions issued by the Office.
(u) Positions when filled by severely physically handicapped persons
who: (1) Under a temporary appointment have demonstrated their ability
to perform the duties satisfactorily; or (2) have been certified by
counselors of State vocational rehabilitation agencies or the Veterans
Administration as likely to succeed in the performance of the duties.
Upon completion of 2 years of satisfactory service under this authority,
the employee may qualify for conversion to competitive status under the
provisions of Executive Order 12125 and implementing regulations issued
by the Office.
(v)-(w) [Reserved]
(x) Positions for which a local recruiting shortage exists when
filled by inmates of Federal, District of Columbia and State (including
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Trust Territory of the Pacific Islands) penal and
correctional institutions under work-release programs authorized by the
Prisoner Rehabilitation Act of 1965, the District of Columbia Work
Release Act, or under work-release programs authorized by the States.
Initial appointments under the authority may not exceed 1 year. An
initial appointment may be extended for one or more periods not to
exceed 1 additional year each upon a finding that the inmate is still in
a work-release status and that a local recruiting shortage still exists.
No person may serve under this authority longer than 1-year beyond the
date of that person's release from custody.
(y) [Reserved]
(z) Not to exceed 30 positions of assistants to top-level Federal
officials when filled by persons designated by the President as White
House Fellows.
(aa) Scientific and professional research associate positions at GS-
11 and above when filled on a temporary basis by persons having a
doctoral degree in an appropriate field of study for research activities
of mutual interest to appointees and their agencies. Appointments are
limited to persons referred by the National Research Council under its
post-doctoral research associate program, may not exceed 2 years, and
are subject to satisfactory outcome of evaluation of the associate's
research during the first year.
(bb) Positions when filled by aliens in the absence of qualified
citizens. Appointments under this authority are subject to prior
approval of the Office except when the authority is specifically
included in a delegated examining agreement with the Office.
(cc)-(ee) [Reserved]
(ff) Not to exceed 24 positions when filled in accordance with an
agreement between OPM and the Department of Justice by persons in
programs administered by the Attorney General of the United States under
Public Law 91-452 and related statutes. A person appointed under this
authority may continue to be employed under it after he ceases to be in
a qualifying program only as long as he remains in the same agency
without a break in service.
(gg) Positions when filled by persons with psychiatric disabilities
who have demonstrated their ability to perform satisfactorily under a
temporary appointment [such as one authorized in 213.3102(i)(3)] or who
are certified as likely to be able to perform the essential functions of
the job, with or without reasonable accommodation, by a State vocational
rehabilitation counselor, a U.S. Department of Veterans Affairs Veterans
Benefits Administration or Veterans Health Administration psychologist,
vocational rehabilitation counselor, or psychiatrist. Upon completion of
2 years of satisfactory
[[Page 71]]
service under this authority, the employee can be converted, at the
discretion of the agency, to competitive status under the provisions of
Executive Order 12125 as amended by Executive Order 13124.
(hh) [Reserved]
(ii) Positions of Presidential Intern, GS-9 and 11, in the
Presidential Management Intern Program. Initial appointments must be
made at the GS-9 level. No one may serve under this authority for more
than 2 years, unless extended with OPM approval for up to one additional
year. Upon completion of 2 years of satisfactory service under this
authority, the employee may qualify for conversion to competitive
appointment under the provisions of Executive Order 12364, in accordance
with the provisions of Sec. 315.708 of this chapter and requirements
prescribed in OPM issuances.
(jj)-(kk) [Reserved]
(ll) Positions as needed of readers for blind employees,
interpreters for deaf employees and personal assistants for handicapped
employees, filled on a full time, part-time, or intermittent basis.
(5 U.S.C. 3301, 3307, 8337(h); 5 U.S.C. 3301, 3302; EO 12364, 47 FR
22931)
[47 FR 28902, July 2, 1982, as amended at 47 FR 43634, Oct. 1, 1982; 48
FR 2115, Jan. 18, 1983; 48 FR 11923, 11924, Mar. 22, 1983; 48 FR 24857,
June 3, 1983; 50 FR 11145, Mar. 20, 1985; 52 FR 37762, Oct. 9, 1987; 54
FR 2985, Jan. 23, 1989; 57 FR 17847, Apr. 28, 1992; 59 FR 64841, Dec.
16, 1994; 60 FR 10006, Feb. 23, 1995; 60 FR 55174, Oct. 30, 1995; 60 FR
55653, Nov. 2, 1995; 62 FR 55725, Oct. 28, 1997; 65 FR 41868, July 7,
2000; 66 FR 66709, Dec. 27, 2001]
Sec. 213.3199 Temporary organizations.
(a) Positions on the staffs of temporary boards and commissions
which are established by law or Executive order for specified periods
not to exceed 4 years to perform specific projects. A temporary board or
commission originally established for less than 4 years and subsequently
extended may continue to fill its staff positions under this authority
as long as its total life, including extension(s), does not exceed 4
years. No board or commission may use this authority for more than 4
years to make appointments and position changes unless prior approval of
the Office is obtained.
(b) Positions on the staffs of temporary organizations within
continuing agencies when all of the following conditions are met:
(1) The temporary organization is established by an authority
outside the agency, usually by law or Executive order;
(2) The temporary organization is established for an initial period
of 4 years or less and, if subsequently extended, its total life
including extension(s) will not exceed 4 years;
(3) The work to be performed by the temporary organization is
outside the agency's continuing responsibilities; and
(4) The positions filled under this authority are those for which
other staffing resources or authorities are not available within the
agency.
An agency may use this authority to fill positions in organizations
which do not meet all of the above conditions or to make appointments
and position changes in a single organization during a period longer
than 4 years only with prior approval of the Office.
[47 FR 28904, July 2, 1982, as amended at 62 FR 18505, Apr. 16, 1997]
Schedule B
Sec. 213.3201 Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination.
(a) Upon specific authorization by OPM, agencies may make
appointments under this section to positions which are not of a
confidential or policy-determining character, and which are not in the
Senior Executive Service, for which it is impracticable to hold open
competition or to apply usual competitive examining procedures.
Appointments under this authority are subject to the basic qualification
standards established by the Office of Personnel Management for the
occupation and grade level. Positions filled under this authority are
excepted from the competitive service and constitute Schedule B. For
each authorization under this section, OPM shall assign a number from
213.3202
[[Page 72]]
through 213.3299 to be used by the appointing agency in recording
appointments made under that authorization.
(b) [Reserved]
[46 FR 20147, Apr. 3, 1981, as amended at 47 FR 57655, Dec. 28, 1982; 53
FR 15353, Apr. 29, 1988]
Sec. 213.3202 Entire executive civil service.
(a) Student Educational Employment Program--Student Temporary
Employment Program. (1) Students may be appointed to the Student
Temporary Employment Program if they are pursuing any of the following
educational programs:
(i) High school diploma or General Equivalency Diploma (GED);
(ii) Vocational/Technical certificate;
(iii) Associate degree;
(iv) Baccalaureate degree;
(v) Graduate degree; or
(vi) Professional degree.
(2) Definition of student: A student is an individual who has been
accepted for enrollment, or who is enrolled, as a degree (diploma,
certificate, etc.) seeking student in an accredited high school,
technical or vocational school, 2-year or 4-year college or university,
graduate or professional school. If the student is enrolled, the student
must be taking at least a half-time academic/vocational/ or technical
course load. The definition of half-time is the definition provided by
the school in which the student is enrolled. Students need not be in
actual physical attendance, so long as all the other requirements are
met. An individual who needs to complete less than the equivalent of
half an academic/vocational or technical courseload in the class
enrollment period immediately prior to graduating is still considered a
student for purposes of this program.
(3) Schedules. Students may work full-time or part-time schedules at
any time during the year. There are no limitations on the number of
hours a student can work per week, but the student's work schedule
should not interfere with the student's academic schedule.
(4) Breaks in program. A break in program is defined as a period of
time when a program participant is working but is unable to go to
school, or neither attending classes nor working at the agency. Agencies
may use their discretion in either approving or denying a break in
program.
(5) Employment of minors. Participation in this program must be in
conformance with Federal, State, or local laws and standards governing
the employment of minors.
(6) Citizenship. Agencies may appoint non-citizens provided that:
(i) The student is lawfully admitted to the United States as a
permanent resident or otherwise authorized to be employed; and
(ii) The agency is authorized to pay aliens under the annual
appropriations act ban and any agency specific enabling and
appropriation statutes.
(7) Employment of relatives. In accordance with part 310 of this
chapter, a student may work in the same agency with a relative when
there is no direct reporting relationship and the relative is not in a
position to influence or control the student's appointment, employment,
promotion or advancement within the agency.
(8) Financial need. There is no requirement for students to meet any
specific economic/income criteria to be eligible. However, agencies have
the option to establish and use financial need as a criteria to select
students, if they wish. OPM does not develop or distribute annual
economic guidelines for use in determining financial need. An agency
wishing to use the Department of Health and Human Services' poverty
guidelines may call the Department of Health and Human Services, Office
of the Assistant Secretary for Planning and Evaluation.
(9) Training expenses: Observing the prohibitions in 5 U.S.C. 4107,
agencies may use their training authority in 5 U.S.C. chapter 41 and 5
CFR part 410 to pay all or part of training expenses directly related to
students' official duties.
(10) Appointments. (i) Students are appointed to positions not to
exceed 1 year. Appointments under this authority may be extended in one-
year increments as long as the individual meets the definition of a
student. Agencies may establish minimum academic requirements and on the
job performance requirements for continuation in the
[[Page 73]]
program. Students under this appointment authority are excepted from the
limitations under Sec. 213.104.
(ii) The nature of the duties does not have to be related to the
student's academic/career goals.
(iii) Students are not eligible for noncompetitive conversion to
term, career, or career-conditional appointments. They may be converted
to the Student Career Experience Program (refer to paragraph (a)(15) of
this section).
(11) Classification. Classification of students is based on the
occupational series for which they are hired. Grade level is to be set
according to the criteria in the appropriate General Schedule (GS) or
wage grade (WG) classification standard.
(12) Qualifications. Students may be evaluated either by agency-
developed standards or by the OPM qualification requirements for the
position to which appointed. Students are eligible for promotions.
Promotions should be documented as a conversion to another excepted
appointment, citing the same authority used for the original appointment
and maintaining the original not-to-exceed (NTE) date.
(13) Benefits. (i) Students under this program are eligible for
annual and sick leave and are generally ineligible for retirement
coverage. Refer to Sec. 831.201 and Sec. 842.105 of this chapter for
specific information.
(ii) For rules on health and life insurance coverage refer to
Sec. 870.202, Sec. 890.102, and Sec. 890.502 of this chapter.
(14) Reductions-in-Force (RIF). Students are covered by Sec. 351.502
of this chapter for purposes of RIF. Students, provided they have
completed at least 1 year of current continuous service, are in excepted
service Tenure Group III.
(15) Conversion to Student Career Experience Program. (i) Students
may be noncompetitively converted to the Student Career Experience
Program whenever they meet the requirements of that program and the
agency has an appropriate position available.
(ii) Work experience related to the student's academic program and
career goals, gained while under the Student Temporary Employment
Program, may be credited towards the 640 hour work experience necessary
for noncompetitive conversion to a term, career, or career-conditional
appointment.
(iii) Conversions are not subject to requirements of subparts C and
D of part 302 of this chapter.
(b) Student Educational Employment Program--Student Career
Experience Program. (1)(i) Students may be appointed to the Student
Career Experience Program if they are pursuing any of the following
educational programs:
(A) High school diploma or General Equivalency Diploma (GED);
(B) Vocational/Technical certificate;
(C) Associate degree;
(D) Baccalaureate degree;
(E) Graduate degree; or
(F) Professional degree.
(ii) Student participants in the Harry S. Truman Foundation
Scholarship Program under the provision of Public Law 93-842 are
eligible for appointments under the Student Career Experience Program.
(2) Definition of student: A student is an individual who has been
accepted for enrollment, or who is enrolled, as a degree (diploma,
certificate, etc.) seeking student in an accredited high school,
technical or vocational school, 2-year or 4-year college or university,
graduate or professional school. If the student is enrolled, the student
must be taking at least a half-time academic/vocational/ or technical
course load. The definition of half-time is the definition provided by
the school in which the student is enrolled. Students need not be in
actual physical attendance, so long as all the other requirements are
met. An individual who needs to complete less than the equivalent of
half an academic/vocational or technical courseload in the class
enrollment period immediately prior to graduating is still considered a
student for purposes of this program.
(3) Schedules. Students may work full-time or part-time schedules at
any time during the year. There are no limitations on the number of
hours a student can work per week, but the student's work schedule
should not interfere with the student's academic schedule.
(4) Breaks in program. A break in program is defined as a period of
time when a program participant is working but is unable to go to
school, or neither
[[Page 74]]
attending classes nor working at the agency. Agencies may use their
discretion in either approving or denying a break in program.
(5) Employment of minors. Participation in this program must be in
conformance with Federal, State, or local laws and standards governing
the employment of minors.
(6) Citizenship. (i) Agencies may appoint non-citizens provided
that:
(A) The student is lawfully admitted to the United States as a
permanent resident or otherwise authorized to be employed; and
(B) The agency is authorized to pay aliens under the annual
appropriations act ban and any agency specific enabling and
appropriation statutes.
(ii) All students must be United States citizens at the time they
are noncompetitively converted to a term, career, or career-conditional
appointment.
(7) Employment of relatives. In accordance with part 310 of this
chapter, a student may work in the same agency with a relative when
there is no direct reporting relationship and the relative is not in a
position to influence or control the student's appointment, employment,
promotion or advancement within the agency.
(8) Financial need. There is no requirement for students to meet any
specific economic/income criteria to be eligible. However, agencies have
the option to establish and use financial need as a criteria to select
students, if they wish. OPM does not develop or distribute annual
economic guidelines for use in determining financial need. An agency
wishing to use the Department of Health and Human Services' poverty
guidelines may call the Department of Health and Human Services, Office
of the Assistant Secretary for Planning and Evaluation.
(9) Training expenses: Observing the prohibitions in 5 U.S.C. 4107,
agencies may use their training authority in 5 U.S.C. chapter 41 and 5
CFR part 410 to pay all or part of training expenses directly related to
students' official duties.
(10) Appointments. (i) Appointments are subject to all the
requirements and conditions governing term, career, or career-
conditional employment, including investigation to establish an
appointee's qualifications and suitability.
(ii) Appointments of participants who have met all the requirements
of the program may be noncompetitively converted to term, career, or
career-conditional appointments at any time within 120 days after
satisfactory completion of the requirements for his/her diploma,
certificate, or degree.
(11) Program requirements for noncompetitive conversion. (i)
Students, who are U.S. citizens, may be noncompetitively converted from
the Student Career Experience Program to a term, career or career-
conditional appointment under Executive Order 12015 (as amended by
Executive Order 13024) when students have:
(A) Completed within the preceding 120 days, at an accredited
school, course requirements conferring a diploma, certificate, or
degree;
(B) Completed at least 640 hours of career-related work (agencies
have the option of increasing this requirement for some or all of its
occupational fields), before completion of, or concurrently with, the
course requirements;
(C) Been recommended by the employing agency in which the career-
related work was performed; and
(D) Met the qualification standards for the targeted position to
which the student will be appointed.
(ii) Conversions must be to an occupation related to the student's
academic training and career related work experience.
(iii) The noncompetitive conversion may be to a position within the
same agency or any other agency within the Federal Government.
(iv) Agencies who noncompetitively convert Student Career Experience
Program participants to term appointments may also noncompetitively
convert them to career or career-conditional appointments before the
term appointments expire.
(12) Agreement by all parties. (i) The Student Career Experience
Program is a formally structured program and requires a written
agreement by all parties (agency, school, student) as to the:
(A) Nature of work assignments;
(B) Schedule of work assignments and class attendance;
[[Page 75]]
(C) Evaluation procedures; and
(D) Requirements for continuation and successful completion of the
program.
(ii) The work experience with the agency must be related to his/her
academic/career goals.
(13) Schedule. Agencies, participating educational institutions, and
students should agree on a formally-arranged schedule of school and work
to ensure that:
(i) Work responsibilities do not interfere with academic
performance;
(ii) Completion of the educational program (awarding of diploma/
certificate/degree) and the Student Career Experience Program are
accomplished in a reasonable and appropriate timeframe;
(iii) The agency is informed and prepared for the student's periods
of employment; and
(iv) Requirements for non-competitive conversion to term, career, or
career-conditional employment are understood by all parties.
(14) Classification. Students whose positions are covered by the
General Schedule will be classified as student trainees, to the -99
series of the appropriate occupational group. Students whose positions
are covered by the Federal Wage System will be classified as student
trainees, to the -01 series of the appropriate occupational group.
(15) Qualifications. Students may be evaluated by either agency-
developed standards or by the OPM qualifications requirements for the
target position. Any OPM test requirements are waived. Students are
eligible for promotion.
(16) Benefits. (i) Students appointed under this program earn annual
and sick leave and with no prior service or with less than 5 years of
prior civilian service, are generally covered by the Federal Employees
Retirement System (FERS) (see part 842 of this chapter).
(ii) For life insurance and health benefits coverage refer to
Sec. 870.202 and Sec. 890.102 of this chapter.
(17) Tuition assistance. Observing the prohibitions in 5 U.S.C.
4107, agencies may use their training authority in 5 U.S.C. chapter 41
and 5 CFR part 410 to pay all or part of training expenses directly
related to students' official duties.
(18) Travel and transportation. Agencies may pay for other expenses
directly related to training, such as travel and transportation between
duty station and school, for participants.
(19) Reduction-in-force (RIF). (i) Students are in excepted service
Tenure Group II for purposes of Sec. 351.502. They are accorded the same
retention rights as excepted service employees.
(ii) They may qualify for severance pay if involuntarily separated
under part 550, subpart G of this chapter.
(c)-(i) [Reserved]
(j) Special executive development positions established in
connection with Senior Executive Service candidate development programs
which have been approved by OPM. A Federal agency may make new
appointments under this authority for any period of employment not
exceeding 3 years for one individual.
(k)-(l) [Reserved]
(m) Positions when filed under any of the following conditions:
(1) Appointment at grades GS-15 and above, or equivalent, in the
same or a different agency without a break in service from a career
appointment in the Senior Executive Service (SES) of an individual who:
(i) Has completed the SES probationary period;
(ii) Has been removed from the SES because of less than fully
successful executive performance, failure to be recertified, or a
reduction in force; and
(iii) Is entitled to be placed in another civil service position
under 5 U.S.C. 3594(b).
(2) Appointment in a different agency without a break in service of
an individual originally appointed under paragraph (m)(l).
(3) Reassignment, promotion, or demotion within the same agency of
an individual appointed under this authority. U.S.C.
(n) Positions when filled by preference eligibles or veterans who
have been separated from the armed forces under honorable conditions
after 3 years or more of continuous active military service and who, in
accordance with the provisions of Pub.L. 105-339, applied for these
positions under
[[Page 76]]
merit promotion procedures when applications were being accepted from
individuals outside its own workforce. These veterans may be promoted,
demoted, or reassigned, as appropriate, to other positions within the
agency but would remain employed under this excepted authority as long
as there is no break in service. No new appointments may be made under
this authority after November 30, 1999.
(o) The Federal Career Intern Program--(1) Appointments.
Appointments made under the Federal Career Intern Program may not exceed
2 years, except as described in paragraph (o)(2) of this section.
Initial appointments shall be made to a position at the grades GS-5, 7,
or 9 (and equivalent) or other trainee levels appropriate for the
Program. Agencies must request OPM approval to cover additional grades
to meet unique or specialized needs. Agencies will use part 302 of this
chapter when making appointments under this Program.
(2) Extensions. (i) Agencies must request, in writing, OPM approval
to extend internships for up to 1 additional year beyond the authorized
2 years for additional training and/or developmental activities.
(ii) Agencies are delegated the authority to extend, without prior
OPM approval, 2-year internships for up to an additional 120 days to
cover rare or unusual circumstances, and where agencies have established
criteria for approving extensions.
(3) Qualifications. Candidates will be evaluated using OPM
qualification requirements or OPM-approved, agency-specific
qualification requirements.
(4) Tenure Group. Career interns are in the excepted service Tenure
Group II for purposes of Sec. 351.502 of this chapter. Expiration of the
internship is not subject to part 351 of this chapter.
(5) Promotions. During the internship period, individuals
participating in the program may receive promotions as determined by an
agency's plan. This provision does not confer entitlement to promotion.
(6) Conversion to Competitive Service. Except as provided in
paragraph (o)(6)(ii) of this section, service as an intern shall confer
no rights to further Federal employment in either the competitive or
excepted service upon the expiration of the internship period.
(i) Competitive civil service status may be granted to career
interns who successfully complete their internships and meet all
qualification, suitability, and performance requirements. These
noncompetitive conversions will be effective on the date the 2-year
service requirement is met, or at the end of the extended period.
(ii) An employee who held a career or career-conditional appointment
in an agency immediately before entering the Career Intern Program in
the same agency, and who fails to complete the Career Intern Program for
reasons unrelated to misconduct or suitability, shall be placed in a
career or career-conditional position in the current agency at no lower
grade or pay than the one the employee left to accept the position in
the Career Intern Program. For purposes of this paragraph, agency means
an Executive Department, Government corporation, or independent
establishment as defined in 5 U.S.C. 105. An Executive Department may
treat each of its bureaus or components (first major subdivision that is
separately organized and clearly distinguished from other bureaus or
components in work function and operation) as a separate agency or as
part of one agency, but must do so by agency directive in establishing
the program.
(iii) Service under the Career Intern Program counts toward career
tenure in the competitive service, if the Career Intern is converted to
a career-conditional appointment under Sec. 315.712 of this chapter.
(7) Terminations. The appointment of a career intern expires at the
end of the 2-year internship period, plus any extensions. The employing
agency may, with no break in service, convert the intern to a career or
career-conditional appointment in accordance with Sec. 315.712 of this
chapter. If an employee is not converted to a career or career-
conditional appointment, the career intern appointment terminates,
unless specifically eligible for placement under paragraph (o)(6)(ii) of
this section.
(8) Career Development. Agencies will provide the career interns
with formal
[[Page 77]]
training and developmental opportunities to acquire the appropriate
agency-identified competencies needed for conversion. These activities
may include, but are not limited to, formal training classes, rotational
or other job assignments, attendance at conferences and seminars,
interagency assignments, or other activities approved by the agency.
(9) Agency Responsibilities. Each agency will determine the
appropriate use of the Career Intern Program relating to recruitment
needs in specific occupational series, grades, and geographical areas,
ensuring that programs are developed and implemented in accordance with
the merit system principles. Agencies may adapt the program to meet
their individual requirements, including, but not limited to such
aspects as:
(i) Deciding how to delegate the authority to develop Career Intern
Programs (e.g., department-wide versus bureaus and agency components);
(ii) Defining the roles and responsibilities of supervisors and
other key officials in career intern program administration, such as
human resources staff, budget and finance staff, career counselors, or
mentors;
(iii) Designing, implementing, and documenting formal program(s) for
the training and development of employees selected under the provisions
of this Part, including the type and duration of assignments;
(iv) Deciding how to inform the career interns of what will be
expected during the internship, including developmental assignments and
performance requirements; and
(v) Planning, coordinating, implementing and monitoring program
activities.
[47 FR 28904, July 2, 1982, as amended at 47 FR 38258, Aug. 31, 1982; 52
FR 25194, July 6, 1987; 52 FR 43722, Nov. 16, 1987; 54 FR 15371, Apr.
18, 1989; 54 FR 18875, May 3, 1989; 55 FR 26419, June 28, 1990; 56 FR
170, Jan. 3, 1991; 59 FR 64841, Dec. 16, 1994; 62 FR 63628, Dec. 2,
1997; 63 FR 57045, Oct. 26, 1998; 63 FR 66705, Dec. 3, 1998; 65 FR
14431, Mar. 17, 2000; 65 FR 41868, July 7, 2000; 65 FR 78078, Dec. 14,
2000]
Schedule C
Sec. 213.3301 Positions of a confidential or policy-determining nature.
(a) Upon specific authorization by OPM, agencies may make
appointments under this section to positions which are policy-
determining or which involve a close and confidential working
relationship with the head of an agency or other key appointed
officials. Positions filled under this authority are excepted from the
competitive service and constitute Schedule C. Each position will be
assigned a number from Sec. 213.3302 to Sec. 213.3999, or other
appropriate number, to be used by the agency in recording appointments
made under that authorization.
(b) When requesting Schedule C exception, agencies must submit to
OPM a statement signed by the agency head certifying that the position
was not created solely or primarily for the purpose of detailing the
incumbent to the White House.
(c) The exception from the competitive service for each position
listed in Schedule C by OPM is revoked immediately upon the position
becoming vacant. An agency shall notify OPM within 3 working days after
a Schedule C position has been vacated.
[60 FR 35120, July 6, 1995]
Sec. 213.3302 Temporary transitional Schedule C positions.
(a) An agency may establish temporary transitional Schedule C
positions necessary to assist a department or agency head during the 1-
year period immediately following a change in presidential
administration, when a new department or agency head has entered on
duty, or when a new department or agency is created. These positions may
be established only to meet legitimate needs of the agency in carrying
out its mission during the period of transition associated with such
changeovers. They must be of a confidential or policy-determining
character and are subject to instructions issued by OPM.
(b) The number of temporary transitional Schedule C positions
established by an agency cannot exceed either 50
[[Page 78]]
percent of the highest number of permanent Schedule C positions filled
by that agency at any time over the previous 5 years, or three
positions, whichever is higher. In the event a new department or agency
is created, the number of temporary transitional positions should
reasonable in light of the size and program responsibility of that
department or agency. OPM may approve an increase in an agency's quota
to meet a critical need or in unusual circumstances.
(c) Individual appointments under this authority may be made for 120
days, with one extension of an additional 120 days. They may be deemed
provisional appointments for purposes of the regulations set out in
parts 351, 831, 842, 870, and 890 of this chapter if they meet the
criteria set out in Secs. 316.401 and 316.403 of this chapter.
(d) An agency shall notify OPM within 5 working days after a
temporary transitional Schedule C position has been encumbered and
within 3 working days when it has been vacated. The agency must also
submit to OPM a statement signed by the agency head certifying that the
position was not created solely or primarily for the purpose of
detailing the incumbent to the White House.
[60 FR 35120, July 6, 1995]
PART 214--SENIOR EXECUTIVE SERVICE--Table of Contents
Subpart A [Reserved]
Subpart B--General Provisions
Sec.
214.201 Definitions.
214.202 Authority to make determinations.
214.203 Reporting requirements.
214.204 Interchange agreements.
Subpart C--Exclusions
214.301 Exclusions.
Subpart D--Types of Positions
214.401 Types of positions.
214.402 Career reserved positions.
214.403 Change of position type.
Authority: 5 U.S.C. 3132.
Source: 45 FR 62414, Sept. 19, 1980, unless otherwise noted.
Subpart A [Reserved]
Subpart B--General Provisions
Sec. 214.201 Definitions.
For the purposes of this part:
Agency, Senior Executive Service position, career appointee, limited
term appointee, limited emergency appointee, and noncareer appointee
have the meanings set forth in section 3132(a) of title 5, United States
Code.
Equivalent position as used in section 3132(a)(2) of title 5, United
States Code, means a position under any pay system where the level of
the duties and responsibilities of the position and the rate of pay are
comparable to that of a position above GS-15 or at Executive Level IV or
V.
Senior Executive Service has the meaning given that term by section
2101a of title 5, United States Code, and includes all positions which
meet the definition in section 3132(a)(2) of title 5.
[45 FR 62414, Sept. 19, 1980, as amended at 56 FR 18661, Apr. 23, 1991]
Sec. 214.202 Authority to make determinations.
(a) Each agency is responsible for determining, in accordance with
Office of Personnel Management guidelines, which of its positions should
be included in the Senior Executive Service.
(b) Agency determinations may be reviewed by the Office of Personnel
Management to ensure adherence with law and regulation.
Sec. 214.203 Reporting requirements.
Agencies shall report such information as may be requested by OPM
relating to positions and employees in the Senior Executive Service.
[60 FR 6385, Feb. 2, 1995]
Sec. 214.204 Interchange agreements.
(a) In accordance with 5 CFR 6.7, OPM and any agency with an
executive personnel system essentially equivalent to the Senior
Executive Service (SES) may, pursuant to legislative and regulatory
authorities, enter into an agreement providing for the movement of
persons between the SES and the
[[Page 79]]
other system. The agreement shall define the status and tenure that the
persons affected shall acquire upon the movement.
(b) Persons eligible for movement must be serving in permanent,
continuing positions with career or career-type appointments. They must
meet the qualifications requirements of any position to which moved.
(c) An interchange agreement may be discontinued by either party
under such conditions as provided in the agreement.
[60 FR 6385, Feb. 2, 1995]
Subpart C--Exclusions
Sec. 214.301 Exclusions.
If not excluded from the Senior Executive Service by section 3132(a)
(1) or (2) of title 5, United States Code, an agency, or unit thereof,
may be excluded only under the provisions of section 3132 (c) through
(f) of title 5.
Subpart D--Types of Positions
Sec. 214.401 Types of positions.
There are two types of positions in the Senior Executive Service:
(a) General positions, which may be filled by a career, noncareer,
limited emergency, or limited term appointee.
(b) Career reserved positions, which may be filled only by a career
appointee.
Sec. 214.402 Career reserved positions.
(a) The head of each agency is responsible for designating career
reserved positions in accordance with the regulations in this section.
(b) A position shall be designated as a career reserved position if:
(1) The position (except a position in the Executive Office of the
President):
(i) Was under the Executive Schedule, or the rate of basic pay was
determined by reference to the Executive Schedule, on October 12, 1978;
(ii) Was specifically required under section 2102 of title 5, United
States Code, or otherwise required by law to be in the competitive
service; and
(iii) Entailed direct responsibility to the public for the
management or operation of particular government programs or functions;
or
(2) The position must be filled by a career appointee to ensure
impartiality, or the public's confidence in the impartiality, of the
Government.
(c) The head of an agency shall use the following criteria in
determining whether paragraph (b)(2) of this section is applicable to an
individual position:
(1) Career reserved positions include positions the principal duties
of which involve day-to-day operations, without responsibility for or
substantial involvement in the determination or public advocacy of the
major controversial policies of the Administration or agency, in the
following occupational disciplines:
(i) Adjudication and appeals;
(ii) Audit and inspection;
(iii) Civil or criminal law enforcement and compliance;
(iv) Contract administration and procurement;
(v) Grants administration;
(vi) Investigation and security matters; and
(vii) Tax liability, including the assessment or collection of taxes
and the preparation or review of interpretative opinions.
(2) Career reserved positions also include:
(i) Scientific or other highly technical or professional positions
where the duties and responsibilities of the specific position are such
that it must be filled by a career appointee to insure impartiality, of
the Government.
(ii) Other positions requiring impartiality, or the public's
confidence in impartiality, as determined by an agency in light of its
mission.
(d) The Office of Personnel Management may review agency
designations of general and career reserved positions. If the Office
finds that an agency has designated any position as general that should
be career reserved, it shall direct the agency to make the career
reserved designation.
(e) The minimum number of positions in the Senior Executive Service
Governmentwide that must be career reserved is 3,571 as determined by
the Director of the Office of Personnel Management under section 3133(e)
of 5 U.S.C. To assure that this figure is
[[Page 80]]
met, the Office may establish a minimum number of career reserved
positions for individual agencies. An agency must maintain or exceed
this number unless it is adjusted by the Office.
[45 FR 62414, Sept. 19, 1980; 45 FR 83471, Dec. 19, 1980]
Sec. 214.403 Change of position type.
An agency may not change the designation of an established position
from career reserved to general, or from general to career reserved,
without the prior approval of the Office of Personnel Management.
PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT--Table of Contents
Subparts A-C [Reserved]
Subpart D--Agency Authority to Take Personnel Actions in a National
Emergency
Sec.
230.401 Agency authority to take personnel actions in a national
emergency disaster.
230.402 Agency authority to make emergency-indefinite appointments in a
national emergency.
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577; 3 CFR 1954--1958
Comp., p. 218; sec. 230.402 also issued under 5 U.S.C. 1104.
Subparts A-C [Reserved]
Subpart D--Agency Authority To Take Personnel Actions in a National
Emergency