[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1997 Edition]
[From the U.S. Government Publishing Office]
5
Administrative Personnel
[[Page i]]
PARTS 1 TO 699
Revised as of January 1, 1997
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[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.......................... 687
Alphabetical List of Agencies Appearing in the CFR........ 703
List of CFR Sections Affected............................. 713
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 5 CFR 1.1 refers to title 5,
part 1, section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
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An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
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Director,
Office of the Federal Register.
January 1, 1997.
[[Page vii]]
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 first and second volumes containing
parts 1-1199 are comprised of chapter I--Office of Personnel Management.
The third volume containing part 1200-end is comprised of chapter II--
Merit Systems Protection Board, chapter III--Office of Management and
Budget, chapter IV--Advisory Committee on Federal Pay, chapter V--The
International Organizations Employees Loyalty Board, chapter VI--Federal
Retirement Thrift Investment Board, chapter VII--Advisory Commission on
Intergovernmental Relations, chapter VIII--Office of Special Counsel,
chapter IX--Appalachian Regional Commission, chapter XI--Armed Forces
Retirement Home, chapter XIV--Federal Labor Relations Authority, General
Counsel of the Federal Labor Relations Authority and Federal Service
Impasses Panel, chapter XV--Office of Administration, Executive Office
of the President, chapter XVI--Office of Government Ethics, chapter
XXI--Department of the Treasury, chapter XXII--Federal Deposit Insurance
Corporation, chapter XXIII--Department of Energy, chapter XXIV--Federal
Energy Regulatory Commission, chapter XXVI--Department of Defense,
chapter XXVIII--Department of Justice, chapter XXIX--Federal
Communications Commission, chapter XXX--Farm Credit System Insurance
Corporation, chapter XXXI--Farm Credit Administration, chapter XXXIII--
Overseas Private Investment Corporation, chapter XXXV--Office of
Personnel Management, chapter XL--Interstate Commerce Commission,
chapter XLI--Commodity Futures Trading Commission, chapter XLII--
Department of Labor, chapter XLV--Department of Health and Human
Services, chapter XLVI--Postal Rate Commission, chapter XLVII--Federal
Trade Commission, chapter XLVIII--Nuclear Regulatory Commission, chapter
L--Department of Transportation, chapter LII--Export-Import Bank of the
United States, chapter LIII--Department of Education, chapter LIV--
Environmental Protection Agency, chapter LVII--General Services
Administration, chapter LVIII--Board of Governors of the Federal Reserve
System, chapter LIX--National Aeronautics and Space Administration,
chapter LX--United States Postal Service, chapter LXII--Equal Employment
Opportunity Commission, chapter LXIII--Inter-American Foundation,
chapter LXV--Department of Housing and Urban Development, chapter LXVI--
National Archives and Records Administration, chapter LXIX--Tennessee
Valley Authority, chapter LXXI--Consumer Product Safety Commission,
chapter LXXIV--Federal Mine Safety and Health Review Commission, chapter
LXXVI--Federal Retirement Thrift Investment Board and chapter LXXVII--
Office of Management and Budget. The contents of these volumes represent
all current regulations codified under this title of the CFR as of
January 1, 1997.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 700-1199 and part 1200-End.
For this volume, Christopher R. Choate was the Chief Editor. The
Code of Federal Regulations is published under the direction of Frances
D. McDonald, assisted by Alomha S. Morris.
[[Page viii]]
[[Page 1]]
TITLE 5--ADMINISTRATIVE PERSONNEL
(This book contains parts 1 to 699)
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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)................................ 10
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
179 Claims collection standards................. 22
180 Employees' personal property claims......... 36
185 Program fraud civil remedies................ 43
210 Basic concepts and definitions (general).... 58
211 Veteran preference.......................... 60
212 Competitive service and competitive status.. 60
213 Excepted service............................ 61
214 Senior Executive Service.................... 72
230 Organization of the Government for personnel
management.............................. 74
250 Personnel management in agencies............ 76
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251 Agency relationships with organizations
representing Federal employees and other
organizations........................... 77
293 Personnel records........................... 79
294 Availability of official information........ 93
297 Privacy procedures for personnel records.... 102
300 Employment (general)........................ 114
301 Overseas employment......................... 127
302 Employment in the excepted service.......... 128
304 Expert and consultant appointments.......... 135
305 [Reserved]
307 Veterans readjustment appointments.......... 139
308 Volunteer service........................... 140
310 Employment of relatives..................... 140
315 Career and career-conditional employment.... 141
316 Temporary and term employment............... 164
317 Employment in the Senior Executive Service.. 169
319 Employment in senior-level and scientific
and professional positions.............. 186
330 Recruitment, selection, and placement
(general)............................... 188
332 Recruitment and selection through
competitive examination................. 208
333 Recruitment and selection for temporary and
term appointments outside the register.. 212
334 Temporary assignment of employees between
Federal agencies and State, local, and
Indian tribal governments, institutions
of higher education, and other eligible
organizations........................... 214
335 Promotion and internal placement............ 216
337 Examining system............................ 219
338 Qualification requirements (general)........ 220
339 Medical qualification determinations........ 221
340 Other than full-time career employment
(Part-time, seasonal, on-call, and
intermittent)........................... 226
351 Reduction in force.......................... 230
352 Reemployment rights......................... 247
353 Restoration to duty from uniformed service
or compensable injury................... 263
359 Removal from the Senior Executive Service;
guaranteed placement in other personnel
systems................................. 272
362 Presidential management intern program...... 281
410 Training.................................... 284
412 Executive, management, and supervisory
development............................. 293
430 Performance management...................... 296
432 Performance based reduction in grade and
removal actions......................... 306
451 Awards...................................... 311
[[Page 5]]
470 Personnel management research programs and
demonstrations projects................. 314
511 Classification under the General Schedule... 318
530 Pay rates and systems (general)............. 324
531 Pay under the General Schedule.............. 330
532 Prevailing rate systems..................... 354
534 Pay under other systems..................... 456
536 Grade and pay retention..................... 462
550 Pay administration (general)................ 469
551 Pay administration under the Fair Labor
Standards Act........................... 520
553 Reemployment of military and civilian
retirees to meet exceptional employment
needs................................... 532
572 Travel and transportation expenses; new
appointees and interviews............... 535
575 Recruitment and relocation bonuses;
retention allowances; supervisory
differentials........................... 536
576 Waiver of repayment of voluntary separation
incentive payments...................... 548
581 Processing garnishment orders for child
support and/or alimony.................. 549
582 Commerical garnishment of Federal employees'
pay..................................... 607
591 Allowances and differentials................ 615
595 Physicians' comparability allowances........ 631
610 Hours of duty............................... 634
630 Absence and leave........................... 639
Editorial Note: Chapter I--Office of Personnel Management is continued
in the volume containing 5 CFR parts 700 to 1199.
[[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.
[28 FR 10023, Sept. 14, 1963, as amended by E.O. 12125, 3 CFR, 1979
Comp., p. 375]
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 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.
[[Page 11]]
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 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,
[[Page 12]]
the agency shall, upon request of the Director, restore the employee to
duty or otherwise reverse any action taken.
(2) Reporting the results of evaluation or investigations to the
head of the agency concerned with instructions for any corrective action
necessary, including cancellation of personnel actions where
appropriate. The Director's findings resulting from evaluations or
investigations are binding unless changed as a result of agency evidence
and arguments against them. If, during the course of any evaluation or
investigation under this section, the Director finds evidence of matters
which come within the investigative and prosecutorial jurisdiction of
the Special Counsel of the Merit Systems Protection Board, the Director
shall refer this evidence to the Special Counsel for appropriate
disposition.
(b) Whenever the Director issues specific instructions as to
separation or other corrective action with regard to an employee,
including cancellation of a personnel action, the head of the agency
concerned shall comply with the Director's instructions.
(c) If the agency head fails to comply with the specific
instructions of the Director as to separation or other corrective action
with regard to an employee, including cancellation of a personnel
action, the Director may certify to the Comptroller General of the
United States the agency's failure to act together with such additional
information as the Comptroller General may require, and shall furnish a
copy of such certification to the head of the agency concerned. The
individual with respect to whom such separation or other corrective
action was instructed shall be entitled thereafter to no pay or only to
such pay as appropriate to effectuate the Director's instructions.
Sec. 5.4 Information and testimony.
When required by the Office, the Merit Systems Protection Board, or
the Special Counsel of the Merit Systems Protection Board, or by
authorized representatives of these bodies, agencies shall make
available to them, or to their authorized representatives, employees to
testify in regard to matters inquired of under the civil service laws,
rules, and regulations, and records pertinent to these matters. All such
employees, and all applicants or eligibles for positions covered by
these rules, shall give to the Office, the Merit Systems Protection
Board, the Special Counsel, or to their authorized representatives, all
information, testimony, documents, and material in regard to the above
matters, the disclosure of which is not otherwise prohibited by law or
regulation. These employees, applicants, and eligibles shall sign
testimony given under oath or affirmation before an officer authorized
by law to administer oaths. Employees are performing official duty when
testifying or providing evidence pursuant to this section.
PART 6--EXCEPTIONS FROM THE COMPETITIVE SERVICE (RULE VI)--Table of Contents
Sec.
6.1 Authority to except positions from the competitive service.
6.2 Schedules of excepted positions.
6.3 Method of filling excepted positions and status of incumbents.
6.4 Removal of incumbents of excepted positions.
6.5 Assignment of excepted employees.
6.6 Revocation of exceptions.
6.7 Movement of persons between the civil service system and other
merit systems.
6.8 Specified exceptions.
Authority: 5 U.S.C. 3301, 3302.
Source: 28 FR 10025, Sept. 14, 1963, unless otherwise noted.
Sec. 6.1 Authority to except positions from the competitive service.
(a) OPM may except positions from the competitive service when it
determines that appointments thereto through competitive examination are
not practicable. These positions shall be listed in OPM's annual report
for the fiscal year in which the exceptions are made.
(b) OPM shall decide whether the duties of any particular position
are such that it may be filled as an excepted position under the
appropriate schedule.
(c) Notice of OPM's decision granting authority to make appointments
to an
[[Page 13]]
excepted position under the appropriate schedule shall be published in
the Federal Register.
[28 FR 10025, Sept. 14, 1963, as amended by E.O. 11315, 3 CFR, 1966-1970
Comp., p. 597; E.O. 12043, 43 FR 9773, Mar. 10, 1978]
Sec. 6.2 Schedules of excepted positions.
OPM shall list positions that it excepts from the competitive
service in Schedules A, B, and C, which schedules shall constitute parts
of this rule, as follows:
Schedule A. Positions other than those of a confidential or policy-
determining character for which it is not practicable to examine shall
be listed in Schedule A.
Schedule B. Positions other than those of a confidential or policy-
determining character for which it is not practicable to hold a
competitive examination shall be listed in Schedule B. Appointments to
these positions shall be subject to such noncompetitive examination as
may be prescribed by OPM.
Schedule C. Positions of a confidential or policy-determining
character shall be listed in Schedule C.
Sec. 6.3 Method of filling excepted positions and status of incumbents.
(a) The head of an agency may fill excepted positions by the
appointment of persons without civil service eligibility or competitive
status and such persons shall not acquire competitive status by reason
of such appointment: Provided, That OPM, in its discretion, may by
regulation prescribe conditions under which excepted positions may be
filled in the same manner as competitive positions are filled and
conditions under which persons so appointed may acquire a competitive
status in accordance with the Civil Service Rules and Regulations.
(b) To the extent permitted by law and the provisions of this part,
appointments and position changes in the excepted service shall be made
in accordance with such regulations and practices as the head of the
agency concerned finds necessary.
Sec. 6.4 Removal of incumbents of excepted positions.
Except as may be required by statute, the Civil Service Rules and
Regulations shall not apply to removals from positions listed in
Schedules A and C or from positions excepted from the competitive
service by statute. The Civil Service Rules and Regulations shall apply
to removals from positions listed in Schedule B of persons who have
competitive status.
Sec. 6.5 Assignment of excepted employees.
No person who is serving under an excepted appointment shall be
assigned to the work of a position in the competitive service without
prior approval of OPM.
Sec. 6.6 Revocation of exceptions.
OPM may remove any position from or may revoke in whole or in part
any provision of Schedule A, B, or C. Notice of OPM's decision making
these changes shall be published in the Federal Register.
[E.O. 11315, 3 CFR, 1966-1970 Comp., p. 597, as amended by E.O. 12043,
43 FR 9773, Mar. 10, 1978]
Sec. 6.7 Movement of persons between the civil service system and other merit systems.
Whenever OPM and any Federal agency having an established merit
system determine it to be in the interest of good administration and
consistent with the intent of the civil service laws and any other
applicable laws, they may enter into an agreement prescribing conditions
under which persons may be moved from one system to the other and
defining the status and tenure that the persons affected shall acquire
upon such movement.
Sec. 6.8 Specified exceptions.
(a) Positions in the Department of the Interior and in the
Department of Commerce whose incumbents serve as the principal
representative of the Secretary in their respective regions shall be
listed in Schedule C for grades not exceeding grade GS-15 of the General
Schedule, and shall be designated Noncareer Executive Assignments for
positions graded higher than GS-15. Incumbents of these positions who
are, on February 15, 1975, in the competitive service shall not be
affected by the foregoing provisions of this section.
(b) Positions in the Community Services Administration and ACTION
[[Page 14]]
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.
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
[[Page 15]]
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 restricted by law
and this part, including
[[Page 18]]
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: Atlanta, Boston,
Chicago, Dallas, Denver, New York, Philadelphia, St. Louis, San
Francisco and Seattle.
[45 FR 995, Jan. 4, 1980]
[[Page 19]]
PART 177--ADMINISTRATIVE CLAIMS UNDER 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: 33 FR 12405, Sept. 4, 1968, unless otherwise noted.
Sec. 177.101 Scope of regulations.
This part applies only to claims asserted under the Federal Tort
Claims Act, as amended, accruing on or after January 18, 1967, 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 (referred to in this part as
an ``employee'') while acting within the scope of his office or
employment.
Sec. 177.102 Administrative claim; when presented; appropriate OPM office.
(a) For the purpose of this part, a claim is deemed to have been
presented when OPM receives, at a place designated in paragraph (b) or
(c) of this section, an executed ``Claim for Damage or Injury'',
Standard Form 95, or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for injury to
or loss of property, for personal injury, or for death alleged to have
occurred by reason of the incident. A claim which should have been
presented to OPM, but which was mistakenly addressed to or filed with
another Federal agency, is deemed to be presented to OPM as of the date
that the claim is received by OPM. If a claim is mistakenly addressed to
or filed with OPM, OPM shall forthwith transfer it to the appropriate
Federal agency, if ascertainable, or return it to the claimant.
(b) Except as provided in paragraph (c)(1) of this section, a
claimant shall mail or deliver his claim to the Office of the General
Counsel, Office of Personnel Management, 1900 E Street NW., Washington,
DC 20415.
(c) (1) When a claim is for $500 or less and does not involve a
personal injury, the claimant shall mail or deliver it to the Director
of the OPM's regional office which employs the individual whose
negligence or wrongful act or omission is alleged to have caused the
loss or injury complained of. In these cases, the address of the
appropriate Regional Director is one of the following:
New England Region, John W. McCormack, Post Office and Courthouse
Building, Boston MA 02109 (formerly Boston Region).
Eastern Region, New Federal Building, 26 Federal Plaza, New York, NY
10007 (formerly New York Region).
Mid-Atlantic Region, William J. Green, Jr., Federal Building, 600 Arch
Street, Philadelphia, PA 19106 (formerly Philadelphia Region).
Southeast Region, Richard B. Russell, Federal Building, 75 Spring
Street, SW, Atlanta, GA 30303 (formerly Atlanta Region).
Great Lakes Region, John C. Kluczynski, Federal Building, 29th Floor,
230 South Dearborn Street, Chicago, IL 60604 (formerly Chicago Region).
Southwest Region, 100 Commerce Street, Dallas, TX 75242 (formerly Dallas
Region).
Mid-Continent Region, 1256 Federal Building, 1520 Market Street, St.
Louis, MO 63103 (formerly St. Louis Region).
Rocky Mountain Region, Building 20, Denver Federal Center, Denver, CO
80225 (formerly Denver Region).
Western Region, 525 Market Street, 23rd Floor, San Francisco, CA 94105
(formerly San Francisco Region).
Northwest Region, Federal Building, 26th Floor, 915 Second Avenue,
Seattle, WA 98174 (formerly Seattle Region).
(2) If the OPM employee's office of employment is the Central Office
of OPM or is not known and not reasonably ascertainable, the claimant
shall mail or deliver his claim to the Office of the General Counsel,
Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.
[33 FR 12405, Sept. 4, 1968, as amended at 44 FR 65025, Nov. 9, 1979]
[[Page 20]]
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 interest which is the subject of the claim,
his authorized agent, or his legal representative.
(b) A claim for personal injury may be presented by the injured
person, his 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 such a claim under applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights of a subrogee 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 of a subrogee, he shall present with his
claim appropriate evidence that he has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall 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 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 monthly or yearly salary or earnings (if any), and the duration of
his last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support on the decedent at the time of his death.
(4) Degree of support afforded by the decedent to each survivor
dependent on him for support at the time of his 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 injury 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 his 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. OPM shall make available to the claimant a copy of the
report of the examining physician on written request by the claimant, if
he has, on request, furnished the report referred to in the first
sentence of this subparagraph and has made or agrees to make available
to OPM any other physician's reports previously or thereafter made of
the physical or mental condition
[[Page 21]]
which is the subject matter of his 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 employer showing actual time lost from employment,
whether he 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 interest which is the subject
of the claim.
(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 not 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 designee, is delegated
authority to consider, ascertain, adjust, determine, compromise, and
settle claims under the provisions of section 2672 of title 28, United
States Code, and this part.
(b) Notwithstanding the delegation of authority in paragraph (a) of
this section, a Regional Director is delegated authority, to be
exercised in his discretion, to consider, ascertain, adjust, determine,
compromise, and settle under the provisions of section 2672 of title 28,
United States Code, and this part any claim for $500 or less which is
based on the alleged negligence or wrongful act or omission of an
employee of his Region, except when:
(1) There are personal injuries to either Government personnel or
individuals not employed by the Government; or
(2) All damage to Government property or to property being used for
OPM, or both, is more than $500, or all damage to non-Government
property being used by individuals not employed by the Government is
more than $500.
(Pub. L. 95-454; Reorganization Plan No. 2 of 1978)
[33 FR 12405, Sept. 4, 1968, as amended at 44 FR 76747, Dec. 28, 1979]
Sec. 177.107 Limitations on authority.
(a) An award, compromise, or settlement of a claim under this part
in excess of $25,000 may be effected only with the advance written
approval of the Attorney General or his designee. For the purpose of
this paragraph, a principal claim and any derivative or subrogated claim
shall 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 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
[[Page 22]]
settled under this part only after consultation with the Department of
Justice when OPM is informed or is otherwise aware that the United
States or an employee, agent, or cost-type contractor of the United
States is involved in litigation based on a claim arising out of the
same incident or transaction.
Sec. 177.108 Referral to Department of Justice.
When Department of Justice approval or consultation is required
under Sec. 177.107, the referral or request shall be transmitted to the
Department of Justice by the General Counsel of OPM or his designee.
Sec. 177.109 Final denial of claim.
Final denial of an administrative claim under this part shall be in
writing and sent to the claimant, his attorney, or legal representative
by certified or registered mail. The notification of final denial may
include a statement of the reasons for the denial and shall include a
statement that, if the claimant is dissatisfied with OPM action, he may
file suit in an appropriate U.S. 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 (1) a ``Claim for Damage or Injury'', Standard
Form 95, (2) a claims settlement agreement, and (3) a ``Voucher for
Payment'', Standard Form 1145, as appropriate. When a claimant is
represented by an attorney, the voucher for payment shall designate both
the claimant and his attorney as payees, and the check shall be
delivered to the attorney, whose address shall appear on the voucher.
(b) Acceptance by the claimant, his agent, or legal representative,
of an award, compromise, or settlement made under section 2672 or 2677
of title 28, United States Code, is final and conclusive on the
claimant, his 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 Government whose act or omission gave
rise to the claim, by reason of the same subject matter.
PART 179--CLAIMS COLLECTION STANDARDS--Table of Contents
Subpart A--General Provisions and Administration
Sec.
179.101 General collection standards.
179.102 Delegation of authority.
Subpart B--Salary Offset
179.201 Purpose.
179.202 Scope.
179.203 Definitions.
179.204 Applicability of regulations.
179.205 Waiver requests and claims to the General Accounting Office.
179.206 Notice requirements before offset.
179.207 Hearing.
179.208 Certification.
179.209 Voluntary repayment agreement as alternative to salary offset.
179.210 Special review.
179.211 Notice of salary offset.
179.212 Procedures for salary offset.
179.213 Coordinating salary offset with other agencies.
179.214 Interest, penalties and administrative costs.
179.215 Refunds.
179.216 Request for the services of a hearing official when the
creditor agency is not OPM.
179.217 Non-waiver of rights by payments.
179.218 Additional administrative collection action.
Subpart C--Administrative Offset
179.301 Scope of regulations.
179.302 Definitions.
179.303 General.
179.304 Notification procedures.
179.305 Agency review.
179.306 Written agreement for repayment.
179.307 Administrative offset.
179.308 Accelerated procedures.
179.309 Additional administrative procedures.
Authority: 31 U.S.C. 952; 5 U.S.C. 1103; Reorganization Plan No. 2
of 1978; 5 U.S.C. 5514; 5 CFR part 550 subpart K; 31 U.S.C. 3701; 31
U.S.C. 3711; 31 U.S.C. 3716; 31 U.S.C. 3720A.
[[Page 23]]
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.
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
[[Page 24]]
(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, 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;
[[Page 25]]
(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, 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.
[[Page 26]]
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 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
[[Page 27]]
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 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.
[[Page 28]]
(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.
(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
[[Page 29]]
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.
(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.
[[Page 30]]
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 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.
[[Page 31]]
(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 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,
[[Page 32]]
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 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.
[[Page 33]]
(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 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.
[[Page 34]]
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 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.
[[Page 35]]
(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.
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
[[Page 36]]
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 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);
[[Page 37]]
(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 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;
[[Page 38]]
(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.
(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.
[[Page 39]]
(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, 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.
[[Page 40]]
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 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;
[[Page 41]]
(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 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
[[Page 42]]
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.
(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.
[[Page 43]]
(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.
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
[[Page 44]]
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, 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
[[Page 45]]
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 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.
[[Page 46]]
(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.
(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
[[Page 47]]
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.
(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.
[[Page 48]]
(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
(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.
[[Page 49]]
(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 Disqualifications 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;
(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:
[[Page 50]]
(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 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
[[Page 51]]
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 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.
[[Page 52]]
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.
(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.
[[Page 53]]
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.
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.
[[Page 54]]
(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 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;
[[Page 55]]
(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.
(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.
[[Page 56]]
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 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.
[[Page 57]]
(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.
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
[[Page 58]]
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.
(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
[[Page 59]]
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 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
[[Page 60]]
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.
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.
[[Page 61]]
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]
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),
[[Page 62]]
and 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185; and Pub. L.
103-353.
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. These authorities shall also be
published in the Federal Personnel Manual.
(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]
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.
(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
[[Page 63]]
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 filed 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 authority set out in paragraph (c) of
section 213.3202 of this part 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]
Subpart B--[Reserved]
Subpart C--Excepted Schedules
Schedule A
Sec. 213.3101 Positions other than those of a confidential or policy-determining character for which it is impracticable to examine.
(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 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.
(b) [Reserved]
(c) An agency (including a military department) may appoint the son
or daughter of a civilian employee of that agency or the son or daughter
of a member of its uniformed service to a summer position when:
[[Page 64]]
(1) The opportunities for employment have been publicized in the
summer announcement, OPM regional and/or area office supplements, or
through Federal job information centers and State Employment Services
for a minimum 2-week period;
(2) There are no eligible available with the same or higher rating
under merit staffing plans for which the ranking criteria satisfy job-
relatedness requirements of FPM Supplement 271-2, ``Tests and Other
Applicant Appraisal Procedures,'' or for which ranking is not
appropriate and qualified candidates are considered on a strictly random
basis; and
(3) The appointment is not prohibited by section 3110 of title 5,
United States Code, or part 310 of this chapter relating to the
employment of relatives.
(d) Paragraphs (b) and (c) of this section do not restrict the
appointment of persons:
(1) Who are eligible for placement assistance under OPM's Displaced
Employees (DE) Program;
(2) Who are employed to meet urgent needs resulting from an
emergency posing an immediate threat to life or property;
(3) Who are members of families which are eligible to receive
financial assistance under a public welfare program or the total income
of which in relation to family size does not exceed limits established
by OPM and published in the Federal Personnel Manual; or
(4) Who are severely physically handicapped or mentally retarded
when such appointees meet the criteria under Schedule A appointing
authorities Sec. 213.3102 (t) and (u), except that for the (u)
eligibility no certification from a State rehabilitation or Veterans
Administration counselor is required;
(e) An agency may appoint for summer employment within the United
States in positions under Schedule A only in accordance with the terms
of OPM's summer employment program. This restriction does not apply to
positions that are excepted only when filled by particular types of
individuals.
(f) In this section summer employment means any employment beginning
after May 12 which will end before October 1 of the same year. ``Student
employment'' means the employment of persons who are enrolled or who
have been accepted for enrollment, on a substantially full-time basis,
as resident students of a secondary school or of an institution of
higher learning; a resident student, for this purpose, is a student in
actual physical attendance at a school as distinguished from a
coorespondence student.
[46 FR 20147, Apr. 3, 1981, as amended at 46 FR 45323, Sept. 11, 1981,
59 FR 64841, Dec. 16, 1994]
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) Positions in Federal mental institutions when filled by persons
who have been patients of such institutions
[[Page 65]]
and have been discharged and are certified by an appropriate medical
authority thereof as recovered sufficiently to be regularly employed but
it is believed desirable and in the interest of the persons and the
institution that they be employed at the institution.
(i) Temporary and less-than-full time positions for which examining
is impracticable. These are:
(1) Positions in remote/isolated locations where examination is
impracticable. A remote/isolated location is outside the local commuting
area of a population center from which an employee can reasonably be
expected to travel on short notice under adverse weather and/or road
conditions which are normal for the area. For this purpose, a population
center is a town with housing, schools, health care, stores and other
businesses in which the servicing examining office can schedule tests
and/or reasonably expect to attract applicants. An individual appointed
under this authority may not be employed in the same agency under a
combination of this and any other appointment to positions involving
related duties and requiring the same qualifications for more than 1,040
workings hour in a service year. Temporary appointments under this
authority may be extended in 1-year increments, with no limit on the
number of such extensions, as an exception to the service limits in
Sec. 213.104.
(2) Positions for which a critical hiring need exists. This includes
both short-term positions and continuing positions that an agency must
fill on an interim basis pending completion of competitive examining,
clearances, or other procedures required for a longer appointment.
Appointments under this authority may not exceed 30 days and may be
extended for up to an additional 30 days if continued employment is
essential to the agency's operations. The appointments may not be used
to extend the service limit of any other appointing authority. An agency
may not employ the same individual under this authority for more than 60
days in any 12-month period.
(3) Other positions for which OPM determines that examining is
impracticable.
(j) Positions filled by current or former Federal employees eligible
for placement under special statutory provisions. Appointments under
this authority are subject to the following conditions.
(1) Eligible employees. (i) Persons previously employed as National
Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement
under Sec. 353.110 of this chapter, or who are applying for or receiving
an annuity under the provisions of 5 U.S.C. 8337(h) or 8456 by reason of
a disability that disqualifies them from membership in the National
Guard or from holding the military grade required as a condition of
their National Guard employment.
(ii) Executive branch employees (other than employees of
intelligence agencies) who are entitled to placement under Sec. 353.110
but who are not eligible for reinstatement or noncompetitive appointment
under the provisions of part 315 of this chapter.
(iii) Legislative and judicial branch employees and employees of the
intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are
entitled to placement under Sec. 353.110.
(2) Employees excluded. Employees who were last employed in Schedule
C or under a statutory authority that specified the employee served at
the discretion, will, or pleasure of the agency are not eligible for
appointment under this authority.
(3) Position to which appointed. Employees who are entitled to
placement under Sec. 353.110 will be appointed to a position that OPM
determines is equivalent in pay and grade to the one the individual
left, unless the individual elects to be placed in a position of lower
grade or pay. National Guard Technicians whose eligibility is based upon
a disability may be appointed at the same grade, or equivalent, as their
National Guard Technician position or at any lower grade for which they
are available.
(4) Conditions of appointment. (i) Individuals whose placement
eligibility is based on an appointment without time limit will receive
appointments without time limit under this authority. These appointees
may be reassigned, promoted, or demoted to any position
[[Page 66]]
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)-(s) [Reserved]
(t) Positions when filled by mentally retarded persons in accordance
with the guidance in Federal Personnel Manual Chapter 306. 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.
[[Page 67]]
(gg)-(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
published in the Federal Personnel Manual.
(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]
Sec. 213.3199 Temporary organizations.
(a) Positions at GS-15 and below 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 at GS-15 and below on the staffs of temporary
organizations established 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]
Schedule B
Sec. 213.3201 Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination.
(a) Upon specific authorization by OPM, agencies may make
appointments under this section to positions which are not of a
confidential or policy-determining character, and which are not in the
Senior Executive Service, for which it is impracticable to hold open
competition or to apply usual competitive examining procedures.
Appointments under this authority are subject to the basic qualification
standards established by the Office of Personnel Management for the
occupation and grade level. Positions filled under this authority are
excepted from the competitive service and constitute Schedule B. For
each authorization under this section, OPM shall assign a number from
213.3202 through 213.3299 to be used by the appointing agency in
recording appointments made under that authorization.
(b) [Reserved]
[46 FR 20147, Apr. 3, 1981, as amended at 47 FR 57655, Dec. 28, 1982; 53
FR 15353, Apr. 29, 1988]
[[Page 68]]
Sec. 213.3202 Entire executive civil service.
(a) Student Educational Employment Program.
(1) The Student Educational Employment Program consists of two
components and two appointing authorities:
(i) The Student Temporary Employment Program (Schedule B
213.3202(a)).
(ii) The Student Career Experience Program (Schedule B 213.3202(b)).
(2) The appointment authority for each program is the same
regardless of the educational program being pursued. Students may be
appointed to these programs 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;
(vi) Professional Degree.
(3) 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,
Schedule B, 213.3202(b).
(b) Requirements for Both Components of the Student Educational
Employment Program:
(1) Definition of student: The definition of student is an
individual who is enrolled or accepted for enrollment as a degree
(diploma, certificate, etc.) seeking student and is taking at least a
half-time academic/vocational/ or technical course load in an accredited
high school, technical or vocational school, 2 year or 4 year college or
university, graduate or professional school. The definition of half-time
is the definition provided by the school in which the student is
enrolled. 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.
(2) Schedules: Both components of the Student Educational Employment
Program are year-round programs and appointments may be made at any time
during the year, including summer. Students may work full-time or part-
time schedules. 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.
(3) Breaks in program: It is expected that students accepted into
the Student Educational Employment Program will at all times either be
working at the agency, enrolled in classes or both. However, agencies
may use their discretion in either approving or denying a break in
program. A break in program is defined as a period of time when a
program participant is neither attending classes nor working at the
agency. The best interests of the student and the agency must be
balanced in making these decisions.
(4) Employment of minors: Participation in this program must be in
conformance with Federal, State, or local laws and standards governing
the employment of minors.
(5) Citizenship requirements: Agencies may appoint non-citizens to
the Student Temporary Employment Program or to the Student Career
Experience Program provided that:
(i) The student is lawfully admitted to the United States as a
permanent resident or otherwise authorized to be employed;
(ii) The agency is authorized to pay aliens under the annual
appropriations act ban and any agency specific enabling and
appropriation statutes.
(iii) All students in the Student Career Experience Program must be
U.S. citizens at the time they are non competitively converted to a
career conditional appointment.
(6) Employment of relatives: In accordance with 5 CFR part 310, 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.
(7) Financial need: There is no requirement for students to meet any
specific economic/income criteria to be eligible for either component of
the Student Educational Employment Program. However, agencies have the
option to establish and use financial need
[[Page 69]]
as a criteria to select students for either or both components of the
Program, if they wish. OPM will no longer develop or distribute annual
economic guidelines for use in determining financial need. An agency
wishing to continue use of 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 on (202)
690-6141.
(8) Training expenses: Agencies may use their training authority in
5 U.S.C. Chapter 41 and 5 CFR part 410 to pay all or part of the
students training expenses.
(9) Student volunteers: Student volunteers are covered by title 5,
CFR, part 308, Volunteer Service, and may not be treated as employees
under this section.
(c) Student Temporary Employment Program:
(1) The Student Temporary Employment Program provides maximum
flexibility to both the student and the agency.
(2) Students are appointed in the excepted service under Schedule B
213.3202(a). This is the appointment authority regardless of the
academic program being pursued.
(3) Students are appointed to a position not to exceed 1 year.
Appointments under this authority may be extended in 1-year increments
as long as the individual meets the definition of a student. Agencies
may establish minimum academic requirements and on the job performance
requirements for continuation in the program. Students under this
appointment authority are excepted from the limitations under 5 CFR
213.104.
(4) The nature of the duties does not have to be related to the
student's academic/career goals.
(5) Students are not eligible for non-competitive conversion to a
career or career-conditional appointment under this authority.
(6) There is no mandatory requirement for students to document
financial need in order to be eligible for this program. Agencies may
set their own criteria if they wish.
(7) Classification: Classification of students appointed under this
program is based on the occupational series for which they are hired.
Grade level is to be set according to the criteria in the appropriate GS
or WG classification standard.
(8) Qualifications: Students under the Student Temporary Employment
Program 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
as was used for the original appointment and maintaining the original
NTE date.
(9) Benefits: Students under this program:
(i) Are eligible for annual and sick leave.
(ii) Are generally ineligible for retirement coverage. Refer to 5
CFR 831.201 and 842.105.
(iii) For rules on health and life insurance coverage refer to 5 CFR
870.202, 890.102 and 890.502.
(10) Reductions-in-Force (RIF): Students in the Student Temporary
Employment Program are covered by the regulations in 5 CFR 351.502 for
purposes of RIF. Students, provided they have completed 1 year of
current continuous service are in excepted service Tenure Group III.
(11) Conversion to Student Career Experience Program: 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.
(i) 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 non-competitive conversion to a career conditional or career
appointment.
(ii) Conversions would not be subject to requirements of subparts C
and D of 5 CFR part 302.
(d) Student Career Experience Program:
(1) This program provides experience that is directly related to the
student's educational program and career goals. Programs developed under
this component provide for a schedule of periods
[[Page 70]]
of attendance at an accredited school combined with periods of career-
related work in a Federal agency. The work experience with the agency
MUST be related to his/her academic/career goals.
(2) Appointment Authority: Students shall be appointed under
Schedule B 213.3202(b). This is the appointment authority regardless of
the academic program being pursued.
(i) Appointments to the Student Career Experience Program are
subject to all the requirements and conditions governing career or
career conditional employment, including investigation to establish an
appointees's qualifications and suitability.
(ii) Appointments of participants who have met all the requirements
of the program may be non-competitively converted to career or career
conditional appointments at any time within 120 days after satisfactory
completion of the requirements for his/her diploma/certificate/ or
degree.
(3) Program requirements for non-competitive conversion:
(i) Students appointed under Sec. 213.3202(b) may be non-
competitively converted to a career or career-conditional appointment
under Executive Order 12015 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 is appointed.
(ii) Conversions must be to an occupation related to the student's
academic training and career related work experience.
(iii) The non-competitive conversion may be to a position within the
same agency or any other agency within the Federal Government.
(4) Agreement by all parties. The Student Career Experience Program
is a formally structured program and requires a written agreement by all
parties (agency, school, student) as to the:
(i) Nature of work assignments
(ii) Schedule of work assignments and class attendance
(iii) Evaluation procedures
(iv) Requirements for continuation and successful completion of the
program.
(5) 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 completion of the Student Career Experience
Program are accomplished in a reasonable and appropriate timeframe;
(iii) The agency is informed and prepared for the students' periods
of employment; and
(iv) Requirements for non-competitive conversion to career
conditional employment are understood by all parties.
(6) Financial need: There is no requirement for students to meet any
economic or income criteria to be eligible for this program. However,
agencies may establish their own criteria if they wish.
(7) Classification: Students appointed under this component will be
classified as student trainees, to the -99 series of the appropriate
occupational group.
(8) 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.
(9) Benefits: Students appointed under this program:
(i) Earn annual and sick leave.
(ii) With no prior service or with less than 5 years of prior
civilian service, are generally covered by the Federal Employees
Retirement System (FERS). Refer to 5 CFR part 842.
(iii) For life insurance and health benefits coverage refer to 5 CFR
870.202 and 890.102.
[[Page 71]]
(10) Tuition assistance: Agencies may use their training authority
in 5 U.S.C. Chapter 41 and 5 CFR part 410 to pay all or part of the
students training expenses.
(11) 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 in the Student Career
Experience component only.
(12) Reduction-in-force: Students in the Student Career Experience
Program are in excepted service Tenure Group II for purposes of 5 CFR
351.502.
(i) They are accorded the same retention rights as excepted service
employees.
(ii) They may qualify for severance pay if involuntarily separated
under 5 CFR part 550, subpart G.
(e)-(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) Positions at grades GS-15 and below when filled by individuals
who: (1) are placed at a severe disadvantage in obtaining employment
because of a psychiatric disability evidenced by hospitalization or
outpatient treatment and have had a significant period of substantially
disrupted employment because of the disbility; and (2) are certified to
a specific position by a State vocational rehabilitation counselor or a
Veterans Administration counseling psychologist (or psychiatrist) who
indicates that they meet the severe disadvantage criteria stated above,
that they are capable of functioning in the positions to which they will
be appointed, and that any residual disability is not job related.
Employment of any individual under this authority may not exceed 2 years
following each significant period of mental illness.
(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.
[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]
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
[[Page 72]]
within 3 working days after a Schedule C position has been vacated.
[60 FR 35120, July 6, 1995]
Sec. 213.3302 Temporary transitional Schedule C positions.
(a) An agency may establish temporary transitional Schedule C
positions necessary to assist a department or agency head during the 1-
year period immediately following a change in presidential
administration, when a new department or agency head has entered on
duty, or when a new department or agency is created. These positions may
be established only to meet legitimate needs of the agency in carrying
out its mission during the period of transition associated with such
changeovers. They must be of a confidential or policy-determining
character and are subject to instructions issued by OPM.
(b) The number of temporary transitional Schedule C positions
established by an agency cannot exceed either 50 percent of the highest
number of permanent Schedule C positions filled by that agency at any
time over the previous 5 years, or three positions, whichever is higher.
In the event a new department or agency is created, the number of
temporary transitional positions should reasonable in light of the size
and program responsibility of that department or agency. OPM may approve
an increase in an agency's quota to meet a critical need or in unusual
circumstances.
(c) Individual appointments under this authority may be made for 120
days, with one extension of an additional 120 days. They may be deemed
provisional appointments for purposes of the regulations set out in
parts 351, 831, 842, 870, and 890 of this chapter if they meet the
criteria set out in 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]
[[Page 73]]
Sec. 214.202 Authority to make determinations.
(a) Each agency is responsible for determining, in accordance with
Office of Personnel Management guidelines, which of its positions should
be included in the Senior Executive Service.
(b) Agency determinations may be reviewed by the Office of Personnel
Management to ensure adherence with law and regulation.
Sec. 214.203 Reporting requirements.
Agencies shall report such information as may be requested by OPM
relating to positions and employees in the Senior Executive Service.
[60 FR 6385, Feb. 2, 1995]
Sec. 214.204 Interchange agreements.
(a) In accordance with 5 CFR 6.7, OPM and any agency with an
executive personnel system essentially equivalent to the Senior
Executive Service (SES) may, pursuant to legislative and regulatory
authorities, enter into an agreement providing for the movement of
persons between the SES and the other system. The agreement shall define
the status and tenure that the persons affected shall acquire upon the
movement.
(b) Persons eligible for movement must be serving in permanent,
continuing positions with career or career-type appointments. They must
meet the qualifications requirements of any position to which moved.
(c) An interchange agreement may be discontinued by either party
under such conditions as provided in the agreement.
[60 FR 6385, Feb. 2, 1995]
Subpart C--Exclusions
Sec. 214.301 Exclusions.
If not excluded from the Senior Executive Service by section 3132(a)
(1) or (2) of title 5, United States Code, an agency, or unit thereof,
may be excluded only under the provisions of section 3132 (c) through
(f) of title 5.
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;
[[Page 74]]
(vi) Investigation and security matters; and
(vii) Tax liability, including the assessment or collection of taxes
and the preparation or review of interpretative opinions.
(2) Career reserved positions also include:
(i) Scientific or other highly technical or professional positions
where the duties and responsibilities of the specific position are such
that it must be filled by a career appointee to insure impartiality, of
the Government.
(ii) Other positions requiring impartiality, or the public's
confidence in impartiality, as determined by an agency in light of its
mission.
(d) The Office of Personnel Management may review agency
designations of general and career reserved positions. If the Office
finds that an agency has designated any position as general that should
be career reserved, it shall direct the agency to make the career
reserved designation.
(e) The minimum number of positions in the Senior Executive Service
Governmentwide that must be career reserved is 3,571 as determined by
the Director of the Office of Personnel Management under section 3133(e)
of 5 U.S.C. To assure that this figure is met, the Office may establish
a minimum number of career reserved positions for individual agencies.
An agency must maintain or exceed this number unless it is adjusted by
the Office.
[45 FR 62414, Sept. 19, 1980; 45 FR 83471, Dec. 19, 1980]
Sec. 214.403 Change of position type.
An agency may not change the designation of an established position
from career reserved to general, or from general to career reserved,
without the prior approval of the Office of Personnel Management.
PART 230--ORGANIZATION OF THE GOVERNMENT FOR PERSONNEL MANAGEMENT--Table of Contents
Subpart 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.
Subpart A-C--[Reserved]
Subpart D--Agency Authority To Take Personnel Actions in a National
Emergency
Sec. 230.401 Agency authority to take personnel actions in a national emergency disaster.
(a) Upon an attack on the United States, agencies are authorized to
carry out whatever personnel activities may be necessary to the
effective functioning of their organizations during a period of disaster
without regard to any regulation or instruction of OPM, except those
which become effective upon or following an attack on the United States.
This authority applies only to actions under OPM jurisdiction.
(b) Actions taken under this section shall be consistent with
affected regulations and instructions as far as possible under the
circumstances and shall be discontinued as soon as conditions permit the
reapplication of the affected regulations and instructions.
(c) An employee may not acquire a competitive civil service status
by virtue of any action taken under this section.
(d) Actions taken, and authority to take actions, under this section
may be
[[Page 75]]
adjusted or terminated in whole or in part by OPM.
(e) Agencies shall maintain records of the actions taken under this
section.
[35 FR 5173, Mar. 27, 1970]
Sec. 230.402 Agency authority to make emergency-indefinite appointments in a national emergency.
(a) When a national emergency exists--(1) Definition. A national
emergency must meet all of the following conditions:
(i) It was declared by the President or Congress.
(ii) It involves a danger to the United States' safety, security, or
stability that results from specified circumstances or conditions and
that is national in scope.
(iii) It requires a national program specifically intended to combat
the threat to national safety, security, or stability.
(2) Termination of a national emergency. A national emergency no
longer exists if it is officially terminated by the President or
Congress, or if the specific circumstances, conditions, or program cited
in the original declaration are terminated or corrected.
(b) Basic authority. Agencies may make emergency-indefinite
appointments without OPM approval during any national emergency as
defined in paragraph (a) of this section. The head of an agency with a
defense-related mission may request OPM's approval to make emergency-
indefinite appointments without a declared national emergency when the
President has authorized the call-up of some portion of the military
reserves for some military purpose. The request must demonstrate that
normal hiring procedures cannot meet surge employment requirements and
that use of emergency-indefinite appointments is necessary for economy
and efficiency. Except as provided by paragraphs (c) and (d) of this
section, agencies must make emergency-indefinite appointments from
appropriate registers of eligibles as long as there are available
eligibles.
(c) Appointment outside the register. An agency may make emergency-
indefinite appointments under this section outside registers of
eligibles when all the following conditions are met:
(1) A number of vacancies must be filled immediately as a result of
conditions created by the national emergency;
(2) Either the number of vacancies to be filled exceeds the number
of immediately available eligibles or emergency conditions do not allow
sufficient time to make this determination; and
(3) Available eligibles on registers are given prior or concurrent
consideration for appointment to the extent possible within emergency
time considerations.
(d) Appointment noncompetitively. An agency may give emergency-
indefinite appointments under this section to the following classes of
persons without regard to registers of eligibles and the provisions in
Sec. 332.102 of this chapter:
(1) Persons who were recruited on a standby basis prior to the
national emergency;
(2) Members of the National Defense Executive Reserve, designated in
accordance with section 710(e) of the Defense Production Act of 1950,
Executive Order 11179 of September 22, 1964, and applications issued by
the agency authorized to implement the law and Executive Order; and
(3) Former Federal employees eligible for reinstatement.
(e) Tenure of emergency-indefinite employees. (1) Emergency-
indefinite employees do not acquire a competitive status on the basis of
their emergency-indefinite appointments.
(2) An emergency-indefinite appointment may be continued for the
duration of the emergency for which it is made.
(f) Trial period. (1) The first year of service of an emergency-
indefinite employee is a trial period.
(2) The agency may terminate the appointment of an emergency-
indefinite employee at any time during the trial period. The employee is
entitled to the procedures set forth in Sec. 315.804 or Sec. 315.805 of
this chapter as appropriate.
(g) Eligibility for within-grade increases. An emergency-indefinite
employee serving in a position subject to the General Schedule is
eligible for within-grade increases in accordance with subpart D of part
531 of this chapter.
[[Page 76]]
(h) Applications of other regulations. (1) The term ``indefinite
employee'' as used in the following includes an emergency-indefinite
employee: Section 316.801, part 351, part 353, subpart G of part 550,
and part 752 of this chapter.
(2) The selection procedures of part 333 of this chapter apply to
emergency-indefinite employees appointed outside the register under
paragraph (c) of this section.
(3) Despite the provisions in Sec. 831.201(a)(11) of this chapter,
an employee serving under an emergency-indefinite appointment under
authority of this section is excluded from retirement coverage, except
as provided in paragraph (b) of Sec. 831.201 of this chapter.
(i) Promotion, demotion, or reassignment. An agency may promote,
demote, or reassign an emergency-indefinite employee to any position for
which it is making emergency-indefinite appointments.
(5 U.S.C. 1104; Pub. L. 95-454, sec. 3(5))
[44 FR 54691, Sept. 21, 1979, as amended at 60 FR 3057, Jan. 13, 1995]
PART 250--PERSONNEL MANAGEMENT IN AGENCIES--Table of Contents
Subpart A--Authority for Personnel Actions in Agencies
Sec.
250.101 Standards and requirements for agency personnel actions.
250.102 Delegation agreements.
250.103 Taking corrective action or suspending or withdrawing agency
authority.
Authority: 5 U.S.C. 1101 note, 1104, 1302, 3301, 3302; E.O. 10577,
12 FR 1259, 3 CFR, 1954-1958 Comp., p. 218.
Source: 58 FR 36119, July 6, 1993, unless otherwise noted.
Subpart A--Authority for Personnel Actions in Agencies
Sec. 250.101 Standards and requirements for agency personnel actions.
In taking a personnel action authorized by this chapter, each agency
shall comply with the qualification standards and regulations issued by
the Office of Personnel Management, the instructions published by OPM in
the Federal Personnel Manual, and the provisions of any agreement
development between OPM and the agency in connection with delegation of
a specific authority. When a personnel action is being taken as a result
of an order of a Court or a settlement agreement, or a decision or order
of or a settlement agreement or an arbitral award reached under the
labor arbitration process or the rules and regulations of the Merit
Systems Protection Board, the Equal Employment Opportunity Commission,
the Federal Labor Relations Authority, or OPM, the agency shall follow
the instructions in Federal Personnel Manual Chapter 296, and must
comply with all other relevant substantive and documentary requirements,
including those applicable to retirement, life insurance, and health
benefits.
Sec. 250.102 Delegation agreements.
In certain circumstances, an agency will receive authorities through
a delegation agreement developed between the agency and OPM. The
agreement will set forth the conditions for application of the delegated
authorities. The agreement will include a description of minimum
standards of performance and the system of oversight to be used by the
agency and by OPM in monitoring the use of each delegated authority.
Sec. 250.103 Taking corrective action or suspending or withdrawing agency authority.
If OPM finds that an agency has taken an action contrary to a law,
rule, regulation, or standard which OPM administers, it may require the
agency to take corrective action. OPM may suspend or withdraw any
authority granted under this chapter to an agency, including any
authority granted by delegation agreement, when it finds that the agency
has not complied with qualification standards issued by OPM, the
instructions published by OPM in the Federal Personnel Manual, or the
regulations in this chapter; or that the suspension or withdrawal is in
the interest of the service for any other reason. OPM may suspend or
revoke a delegation agreement established under Sec. 250.102 at any
time, if it judges
[[Page 77]]
that the agency is not adhering to the provisions of the agreement.
PART 251--AGENCY RELATIONSHIPS WITH ORGANIZATIONS REPRESENTING FEDERAL EMPLOYEES AND OTHER ORGANIZATIONS--Table of Contents
Subpart A--General Provisions
Sec.
251.101 Introduction.
251.102 Coverage.
251.103 Definitions.
Subpart B--Relationships With Organizations Representing Federal
Employees and Other Organizations
251.201 Associations of management officials and/or supervisors.
251.202 Agency support to organizations representing Federal employees
and other organizations.
Subpart C--Dues Withholding
251.301 Associations of management officials and/or supervisors.
251.302 All other organizations.
Authority: 5 U.S.C. 1104; 5 U.S.C. Chap 7; 5 U.S.C. 7135; 5 U.S.C.
7301; and E.O. 11491.
Source: 61 FR 32915, June 26, 1996, unless otherwise noted.
Subpart A--General Provisions
Sec. 251.101 Introduction.
(a) The regulations in this part apply to all Federal executive
branch departments and agencies and their officers and employees.
(b) This part provides a framework for consulting and communicating
with non-labor organizations representing Federal employees and with
other organizations on matters related to agency operations and
personnel management.
(c) The purposes of consultation and communication are: the
improvement of agency operations, personnel management, and employee
effectiveness; the exchange of information (e.g., ideas, opinions, and
proposals); and the establishment of policies that best serve the public
interest in accomplishing the mission of the agency.
(d) An agency's consultation and communication with organizations
representing Federal employees and with other organizations under this
part may not take on the character of negotiations or consultations
regarding conditions of employment of bargaining unit employees, which
is reserved exclusively to labor organizations as provided for in
Chapter 71 of title 5 of the U.S. Code or comparable provisions of other
laws. The regulations in this part do not authorize any actions
inconsistent with Chapter 71 of the U.S. Code or comparable provisions
of other laws.
(e) The head of a Federal agency may determine that it is in the
interest of the agency to consult, from time to time, with organizations
other than labor organizations and associations of management officials
and/or supervisors to the extent permitted by law. Under section 7(d)(2)
and (3) of Executive Order 11491, as amended, recognition of a labor
organization does not preclude an agency from consulting or dealing with
a veterans organization, or with a religious, social, fraternal,
professional, or other lawful association, not qualified as a labor
organization, with respect to matters or policies which involve
individual members of the organization or association or are of
particular applicability to it or its members.
(f) Federal employees, including management officials and
supervisors, may communicate with any Federal agency, officer, or other
Federal entity on the employee's own behalf. However, Federal employees
should be aware that 18 U.S.C. 205, in pertinent part, restricts Federal
employees from acting, other than in the proper discharge of their
official duties, as agents or attorneys for any person or organization
other than a labor organization, before any Federal agency or other
Federal entity in connection with any matter in which the United States
is a party or has a direct and substantial interest. Agency officials
and employees are therefore advised to consult with their designated
agency ethics official for guidance regarding any conflicts of interest
that may arise.
[[Page 78]]